Claybourn on Gay Adoption Laws

Josh Claybourn of In The Agora has written a law review article on state laws against gay adoptions. Jason Kuznicki and I provided some constructive criticism of that article while he was working on it, for which he thanked us in the article. Sadly, the journal it was to be published in has gone under. Josh has now made a PDF of that article available on his website and I think it's well worth reading. He analyzes the application of precedent on the basis of four basic questions:

Do laws against gay adoptions violate substantive due process rights under a strict scrutiny review? Do they violate substantive due process rights under a rational basis review? Do they violate the equal protection clause under heightened scrutiny review? And do they violate the equal protection claused under a rational basis review? So, two different clauses to consider, each under two separate standards of review. And as Josh rightly notes, the standard of review that the court chooses is generally the key to how they will rule (although in this particular area, as he also notes, the court has at least once struck down an anti-gay law even under a rational basis test, in Romer v Evans).

It should be noted that Josh's article doesn't necessarily represent his own view of the issue. Rather, he looks at the precedents that would apply in such a case and asks how the court would rule if applying such precedents consistently. The court, of course, might well deviate from those precedents, or apply them in a different manner than Josh suggests. There is certainly enough wiggle room in any of those standards that one could conceive of a wide range of potential rulings.

The weakest part of the article, I think, is the section dealing with the second question, whether such laws could survive even a rational basis review based on substantive due process. Like Romer, I think that there is sufficent difficulty with the expressed purpose of such laws to fail even a rational basis review, and Josh rightly points out those difficulties in the article. He cites both Romer and Eisenstadt, cases which found that even under a rational basis standard, if the rational basis offered by the legislature is clearly not the true motivation for the law, either because there is evidence of obvious animus or because the law flatly fails to achieve the stated goal, laws may fail to meet constitutional muster.

He also points out the two primary reasons why the stated basis for laws against gay adoption are inconsistent with the policy. First, because the stated purpose is not applied consistently:

States most often prohibit homosexuals from being considered adoptive parents because they wish to place children with married couples. But the statutes themselves typically offer no preference for married couples and often expressly permit adults who are not married to adopt, even if they do not intend to marry. This contradiction alone is enough for some to believe the state's alleged reasons are "illogical to the point of irrationality."

There is also a second level of contradiction often present in such cases, including Florida, where the law allows gays to act as foster parents, but not as adoptive parents. And I would be one of those people who would argue that this fundamental contradiction between stated purpose and action indicates not only irrationality but also suggests that, like Romer, the stated purpose may be a cover for what in reality is a motivation of sheer animus. This is particularly true of the Florida law, where the sponsor of the legislation bluntly described the goal of his legislation thusly:

"We're trying to send [homosexuals] a message, telling them: 'We're really tired of you. We wish you'd go back into the closet.'"

Secondly, he points to another level of inconsistency between stated purpose and action. While the legislators claim that their purpose is to insure a stable and secure environment for children up for adoption, the result of ruling out otherwise qualified parents solely on the basis of their sexual orientation is in fact the opposite of that stated goal:

In addition to their failure to adequately distinguish homosexuals from single heterosexuals, the statutes may accomplish the opposite of their stated purpose of trying to "protect and promote every child's right to the security and stability." Many children require great care and may be unsuitable or unwanted for adoption by most families. Older children in particular must sometimes wait years in foster care before finally being adopted, and a significant percent of children in foster care never get adopted at all. Many believe it is in the best interests of children like this to be adopted by a caring homosexual parent rather than languish alone and unwanted in a state institution of foster care. Moreover, opponents point to studies that suggest homosexuals are fit and capable parents. Thus, according to opponents, the stated governmental function fails to achieve its goal of arranging what is in the best interest of children. Indeed, the statutes sometimes serve to obstruct, rather than encourage, the placement of a child into a permanent, loving family.

This is particularly true in a case like Lofton v. Kearney (denied cert. by the Supreme Court in 2005), where the plaintiffs are the adoptive and foster parents of several special needs children, one of whom is perpetually up for adoption by another family by the state of Florida. That would rip the child away from the only family he has known for 12 years. Certainly it would not serve the child's right to a secure and stable family to do so, but the Florida law guarantees such results and treats only gay parents in this manner. In every other instance, the applicable standard for adoption is what is in the best interests of the child. Clearly, however, it would not be in the best interests of this child in this case. Just as clearly, the case-by-case standard that is applied in every other area of adoption law would be far more conducive to the state's interest in guaranteeing the most secure and stable environment for the child to be adopted.

Add to this the fact that the state cannot point to a single valid study that concludes that children raised by gay parents are worse off than those raised by straight parents - indeed, they must attempt to explain away dozens of valid studies to the contrary - and the case becomes stronger yet. In a situation where the legislative action is clearly at odds with the stated purpose for two separate reasons, where there is clear evidence of animus as a primary motivating factor for the policy, and where the state cannot point to any evidence at all to support their contention that gay parents are less capable parents, the court would be entirely justified in concluding that the law would fail even a rational basis review.

Would the Court actually rule that way? I think that's a close call, and of course Josh's article is really dealing with the question of how the Court would apply its own precedents, not how it should do so (and in fairness, one should also bear in mind that I am an enthusiastic supporter of gay marriage and gay adoption, so I may be slightly biased in foisting my own views on the Court members). Either way, I think the result would be very close given the current makeup of the Court.

If O'Connor was still on the Court, I would feel more comfortable making that prediction, but I think Alito would pretty clearly come down on the other side of the issue, as would Thomas, Scalia and Roberts. There is certainly the potential for a majority made up of Kennedy, Souter, Ginsburg, Breyer and Stevens in that regard. Unfortunately, the court denied cert in the very best case one can imagine for such a ruling, the Florida law in the aforementioned Loften v Kearney. In doing so, I think they missed the best opportunity for such laws to be overturned.

At any rate, I want to thank Josh for his thoughtful consideration of the issue, and for giving me the opportunity to weigh in on it. And I would urge those interested in the issue to read the final result linked to above and post your thoughts below.