Marriage and adoption law

Maggie Gallagher
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Posted: Jan 15, 2005 12:00 AM
This week, the Supreme Court let stand a federal court's opinion that Florida's state laws banning gay adoption are constitutional.

Florida said these laws would increase the likelihood that children will be raised by married mothers and fathers. A three-judge panel of the 11th Circuit Court of Appeals ruled this a legitimate concern: "It is rational for Florida to conclude that it is in the best interests of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother."

The case highlights the importance of the upcoming battle over Bush's judicial appointments. The ruling stands only because the 11th Circuit Court of Appeals deadlocked 6-to-6 over whether to have the full court rehear the case. One of the judges to vote against the rehearing was William H. Pryor Jr., whom the Senate Democrats filibustered and who thus serves only as a temporary recess appointment.

Although it is good to know that in the 11th Circuit, at least, the idea that children need moms and dads is not (yet) considered hate speech, one can seriously question how well the Florida law serves its intended purpose. Why not instead create preferences for married couples in adoption law?

Most people probably assume that married couples are already preferred, where available, in adoptions.

But a forthcoming policy brief on adoption law by Joshua Baker (my colleague at the Institute for Marriage and Public Policy) concludes: "Only two states codify that presumption as any kind of a preference for married couples." States are twice as likely to "forbid 'discrimination' based on marital status than to make any legal effort to place vulnerable children in homes with a married mother and father." (For a copy of the brief and accompanying model legislation remedying the situation, e-mail

Joshua@imapp.org.)

Perhaps social workers can be counted on in the absence of laws? Susan Esbenshade once thought so. She and her husband had adopted one child by a troubled unwed mother. When her child's birth mother again became pregnant, Esbenshade and her husband wanted to adopt that child, too (twins, as it turned out). The birth mother requested this placement. But the Esbenshades say they were (falsely) told by social workers in Mecklenburg County (North Carolina) that the twins could not be placed in a home outside the county. In a letter to Mecklenburg County Commissioner Bill James, Susan said she was "shocked" to later discover "that DSS would place the twins in a home with two men rather than placing them in a home with a mother and father and a biological sibling."

How could this happen? One reason may be that social workers tend to be deeply committed to family diversity as an ideal. A 1996 study by Sarah Holbrook studied the attitudes of more than 300 social workers. They strongly supported "the rights of single people, gay men and lesbians, and older women past menopause to have families." Conversely, notes the author, social workers were most likely to reject "the traditional approach to families where couples are favored over single people" and "where the ideal for a child is always a two-parent home."

Why has social work, as a profession, been so uniquely deaf to the cries of children hungering for absent fathers, or to the social science evidence that generally support intact marriages as important for child well-being?

I don't know for sure how common Susan Esbenshade's story is. I do know that even one case of a child being deprived of a loving married mom and dad, not to mention her brother or sister, in pursuit of ideological or political correctness is one too many.

State legislators and governors concerned about child welfare, take note -- and then act.