Homosexual Adoption and Constitutional Law

Adoption laws are based on the philosophy that the State has a responsibility to act in the best interest of children who are available for adoption. To this end, adults who wish to adopt a child are screened by various agencies to determine whether they are fit to be parents. This process is designed to ensure that adopted children are not placed in homes in which they might be at risk of physical, emotional, or sexual abuse or other types of danger. The definition of a fit parent, however, is often based more on prevailing social norms than on any clear social or scientific theories.

In this fictitious scenario, the belief that women are more nurturing than men and prejudice against homosexuals led the State of Wisconsin to pass legislation which prevents single men and homosexual single women from being allowed to adopt, while heterosexual single women will be allowed to do so. While some people may object to homosexual adoption on moral grounds, a review of the applicable case indicates that homosexuals should be allowed to become adoptive parents. In this scenario, the fictitious Wisconsin law illustrates the fact that in many ways, the United States is still a segregated society.

Laws that give rights to one group while removing rights from another group contribute to this segregation. However, as the Supreme Court noted in Brown v. Board of Education (1954), separate systems are inherently unequal. The 14th Amendment guarantees that all citizens shall receive equal treatment under the law. A system that creates one system of adoption for single men and another for single women is unequal and is therefore unconstitutional under the equal protection clause of the 14th Amendment.

Furthermore, a system that applies one standard for heterosexual couples and another for individuals with a homosexual orientation is also unequal and is therefore also unconstitutional under the same equal protection clause of the 14th Amendment. Setting aside for the moment the more controversial issue of homosexual adoption, the fictitious law in this scenario is based on the assumption that women are more suited to be parents than men, regardless of the man's sexual orientation. Consequently, the law discriminates against men on the sole basis of their gender.

From the perspective of a potential parent, adoption is the process by which the State or an agency that has been licensed by the State provides the adult with the benefit of a child. It is worth noting that while adoption is often depicted as being for the benefit of the child who is available for adoption, there are actually at least two beneficiaries in the adoption process: the child and the adult or adults who wish to become parents. By making heterosexual women the sole potential adult beneficiaries of the adoption process, the law would deny this benefit to men.

As the Supreme Court noted in Frontiero v. Richardson (1973), "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. " In this case, the law would not stand up to any reasonable degree of judicial scrutiny. To borrow a phrase from the Court's opinion in Frontiero, the preferential treatment of women over men in the adoption process is based on "gross, stereotyped distinctions between the sexes.

"This is gender discrimination. Turning to the more emotional issue of homosexual adoption, it is also clear that the fictitious law would be unconstitutional in its preferential treatment of heterosexual women and heterosexual couples. Under the 14th Amendment, individuals who are homosexual cannot be discriminated against solely on the basis of their sexual orientation (Romer v. Evans, 1996). The fictitious law places homosexual conduct in the same categories as pedophilia, drug addiction, and other behaviors that would place the child in harm's way.

Political conservatives might argue that they are attempting to protect the child from the danger of being raised within the environment of a homosexual lifestyle. Such an argument would assume that exposure to homosexuality, even in a positive light, is inherently wrong for children. Upon reflection, it appears that any such argument would be based more on biases against homosexuals than on any research into the interactions between homosexual parents and their adoptive or biological children.

While the United States strives to be multicultural society that is tolerant of a variety of lifestyles, examples of informal and institutionalized discrimination continue to exist. Fortunately, the Constitution provides a framework that is designed to protect minorities from prejudice and discrimination. In cases such as Brown v. Board of Education and Rover v. Evans, laws that have supported institutional discrimination have been overturned by the Courts. Unfortunately, as this scenario illustrates, such laws continue to be discussed and in many cases enacted.

However, this tendency to discriminate does not affect the unconstitutionality of the laws. Finally, the "don't ask, don't tell" nature of the law violates 5th Amendment protections against self-incrimination. Under the law, individuals who are homosexual would be expected to identify themselves as such. While this law does not make homosexuality illegal, it nonetheless penalizes individuals who identify themselves as being homosexual. Women who lie about their sexual orientation and claim to be heterosexual when they, in fact, are not place themselves at the risk of perjury or fraud.

Freedom of religion includes freedom from religion. The claims of the religious right notwithstanding, the United States is still officially a secular society. In most cases, laws that attempt to impose religious beliefs about sexual conduct on non-believers are probably going to be unconstitutional.


Brown v. Board of Education 347 U. S. 483 (1954). Frontiero v. Richardson 411 U. S. 677, 93 S. Ct. 1764 (1973) Romer v. Evans 517 U. S. 620, 116 S. Ct. 1620 (1996)