Same-Sex Adoptions
Alison M. Smith
Legislative Attorney
October 5, 2010
Congressional Research Service
7-5700
www.crs.gov
RS21191
CRS Report for Congress
P
repared for Members and Committees of Congress

---

Same-Sex Adoptions

Summary
While the federal government plays a role in supporting adoption through grants and tax benefits,
states have the primary responsibility in setting policy to govern child adoption. As such, states
may restrict adoption based on a myriad of factors including sexual orientation and/or marital
status. For example, while most states are silent on the issue of adoption by gay and/or lesbian
individuals or same-sex couples, states such as Florida, Arkansas, and Mississippi have statutory
provisions which prevent such individuals or couples from adopting. However, lower courts in
Florida and Arkansas have found such bans unconstitutional on state equal protection grounds.
While state courts have struck down such statutory provisions, the only federal court to address
the issue reached a contrary result. In a matter of first impression, the United States Court of
Appeals for the 11th Circuit found that Florida’s ban does not violate equal protection or due
process under the 14th Amendment of the U.S. Constitution.
This report summarizes state laws concerning non-relative adoption by homosexual individuals
and couples. The report will be updated as developments warrant.
Congressional Research Service

---

Same-Sex Adoptions

onsistent with other areas of family law, adoption statutes are promulgated by state
legislatures in accordance with public policy considerations that often include providing
C for the best interests of the child, achieving finality in the placement of children and
promoting stability in family relations. Thus, individual states have different statutes regarding
non-relative adoption by homosexual individuals and couples.1
Most states currently permit an individual gay or lesbian adult to adopt a minor child subject, as
in any adoption, to a finding by a judge, that adoption by that individual is in the child’s best
interest.2 State statutes concerning the eligibility of homosexuals to adopt range from Florida’s
statutory prohibition3 on homosexual individuals adopting to Mississippi’s statute barring
adoption by same-sex couples4 to Utah’s prohibition on cohabitating unmarried couples,
heterosexual or homosexual, from adopting.5 Many state statutes are silent on the issue, leaving
the subject open to interpretation by courts.6 For example, the Ohio Supreme Court permitted the
adoption of a “special needs” child by a homosexual, stating that there is a need to review
adoption applications on a case-by-case basis without exacting any clear-cut rules regarding
homosexual applicants.7 Similarly, a New Jersey court allowed a homosexual couple to adopt a
special needs child whom they fostered for approximately two years.8

1 The related issue of second-parent adoption is beyond the scope of this report. A second-parent adoption is a legal
procedure which allows a same-sex co-parent to adopt his or her partner’s child.
2 Numerous factors converge and influence this standard, including the home environment, stability of the parents, the
time a parent and child spend together, the quality of the relationship between parent and child, sexual conduct and
criminal background of the parents, as well as other factors the court deems appropriate. See 2 Am. Jur. 2d Adoption §
137. Florida is currently the only state which prohibits homosexual individuals from adopting. Fla. Stat. Ann. 63.042.
3 Fla. Stat. Ann. 63.042 (3). On January 28, 2004, the 11th Circuit Court of Appeals found that the statute does not
violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment. Lofton v. Sec. of the Dept. of
Children and Family Services, 358 F.3d 804, 816 (11th Cir. 2004). However, on August 29, 2008, a state court found
this statute facially invalid under the state’s constitution. Specifically, the court held that the statutory ban violated
constitutional provisions pertaining to adoption, prohibiting bills of attainder and separation of powers. In re Adoption
of John Doe, 2008 WL 5070056 (Fla. Cir. Ct. Aug. 29, 2008). Similarly, a state appellate court found the ban violated
the state’s equal protection rights. The court found that there was no rational basis for categorically excluding a
homosexual from adoption based solely on the individual’s sexual orientation. In re Adoption of X.X.G. and N.R.G.,
2010 WL 3655782, No. 3D08-3044 (Fla. App. 3 Dist., Sept. 22, 2010).
4 Miss Ann. Code § 93-17-3(5).
5 Utah Stat. § 78B-6-117. The statute does not expressly prohibit adoption by single people, nor does it ban same-sex
couples from adopting from private agencies. On November 4, 2008, voters in Arkansas approved a similar citizen-
initiated statute prohibiting unmarried sexual partners (both opposite-sex and same-sex couples) from adopting or
serving as foster parents. In a related issue, Oklahoma passed the Oklahoma Adoption Invalidation Law (OK. Stat. Tit.
10 § 7502-1.4(A)), which prohibits the state from acknowledging adoptions by same-sex couples from other
jurisdictions. The 10th Circuit Court of Appeals affirmed a lower court’s ruling that the law, by its refusal to recognize
and give effect to a valid judgment from another court of competent jurisdiction, which established their status as
parents of their respective children, violates the Full Faith and Credit Clause of the U.S. Constitution. Finstuen v.
Crutcher, 496 F.3d 1139 (10th Cir. 2007).
6 See, e.g., In re Lace, 516 N.W.2d 678, 686 (Wis. 1994) (barring adoption of mother’s daughter by mother’s female
partner because statutory scheme “balances society’s interest in promoting stable, legally recognized families with its
interests in promoting the best interests of the children involved.”) see also, e.g., Adoption of Tammy, 619 N.E.2d 315
(Mass. 1993) (holding that Massachusetts law did not preclude same-sex cohabitants from jointly adopting a child);
Adoptions of B.L.V.B & E.L.V.B., 628 A.2d 1271 (Vt. 1993) (holding Vermont law does not require the termination of a
natural mother’s parental rights if her children are adopted by a person to whom she is not married, if it is in the best
interests of the children).
7 In re Adoption of Charles B., 552 N.E. 2d 884 (Ohio 1990). “Special needs” child refers to the fact that Charles B.
suffered from leukemia, possible brain damage from fetal alcohol syndrome, a low I.Q., and a speech impediment. His
natural family abused him and he lived in four different foster homes. These factors led the court to believe that Charles
B. would be better off with his adoptive parent, a homosexual, instead of in an institution or moving from foster home
(continued...)
Congressional Research Service
1

---

Same-Sex Adoptions

On January 28, 2004, the U.S. Court of Appeals for the 11th Circuit affirmed a lower court
decision9 upholding a Florida statute banning adoption by homosexual individuals. In Lofton v.
Sec. of the Dept. of Children and Family Services,10 the court found that a Florida statute denying
homosexuals the right to adopt does not violate the constitutional guarantees of equal protection
or due process under the 14th Amendment of the U.S. Constitution.11 In addressing the plaintiffs’
due process claim, the court emphasized that there is no fundamental right to adopt, nor a
fundamental right to be adopted as adoption is a privilege created by statute and not by common
law.12 Thus, the court reasoned there can be no fundamental right to apply for adoption.13 As such,
the liberty interest biological parents enjoy in raising their children without state interference
could not be extended to a foster parent or guardian based merely on the existence of strong
emotional ties between the foster parent or guardian and the child.14
Moreover, the court rejected plaintiffs’ argument that the Supreme Court’s decision in Lawrence
v. Texas,15 identified an unarticulated fundamental right to private sexual intimacy. The court
stated that it was “hesitant to infer a new fundamental liberty interest from an opinion whose
language and reasoning are inconsistent with standard fundamental-rights analysis.”16 The court
noted the absence of “two primary features” of fundamental-rights analysis in the Lawrence
decision.17 First, the court stated that the Lawrence opinion contained “virtually no inquiry into
the question of whether the petitioners’ asserted right is one of those fundamental rights and
liberties which are, objectively, deeply rooted in this Nation’s history and tradition and implicit in
the concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.”18 Second, the court noted that the Lawrence opinion “notably never provides the
careful description of the asserted fundamental liberty interest” that is to accompany
fundamental-rights analysis.19
Moreover, the court found that the holding of Lawrence did not control in the adoption context as
Lawrence was limited to consenting adults and a criminal prohibition. The court reiterated that
the relevant state action was not a criminal prohibition, but a grant of a statutory privilege. In

(...continued)
to foster home. Id.
8 See, Joyce F. Sims, “Homosexuals Battling the Barriers of Mainstream Adoption-And Winning,” 23 T. Marshall L.
Rev. 551, 581 (1998). Subsequently, the parties entered into an agreement in which gay and unmarried couples will be
measured by the same adoption standards as married couples. Furthermore, no couple could be barred from adoption
based on their sexual orientation or marital status.
9 Lofton v. Kearney, 157 F.Supp.2d 1372 (S.D. Fla. 2001).
10 358 F.3d 804 (11th Cir. 2004). This marked the first time a federal appellate court addressed the constitutionality of
banning adoption by homosexual individuals.
11 Id.
12 Id. at 809-811.
13 Id.
14 Id.
15 539 U.S. 558 (2003) (holding that substantive due process does not permit a state to impose a criminal prohibition on
private consensual homosexual conduct between adults). For a legal analysis of this decision, refer to CRS Report
RL31681, Homosexuality and the Constitution: A Legal Analysis of the Supreme Court Ruling in Lawrence v. Texas,
by Jody Feder.
16 Lofton v. Sec. of the Dept. of Children and Family Services, 358 F.3d 804, 816 (11th Cir. 2004).
17 Id.
18 Id.
19 Id.
Congressional Research Service
2

---

Same-Sex Adoptions

addition the court stated that “the asserted liberty interest is not the negative right to engage in
private conduct without facing criminal sanctions, but the affirmative right to receive official and
public recognition.”20 Therefore, the court concluded that the Lawrence decision could not be
extrapolated to create a right to adopt for homosexual persons.21
Addressing the equal protection argument, the court rejected the plaintiffs’ assertion that the court
should apply strict scrutiny in analyzing the statute. The court noted that as Florida’s adoption
statute burdens no fundamental right nor suspect class, the appropriate standard of review was
rational basis. The court found that Florida has a legitimate interest in encouraging a stable and
nurturing environment for the education and socialization of its adopted children.22 In addition,
the court reasoned that the state has a legitimate interest in encouraging an optimal family
structure by seeking to place adoptive children in homes that have both a mother and father.23
The court rejected appellants’ argument that the statute was not rationally related to this interest
by noting that “it is entirely irrelevant for constitutional purposes whether the conceived reason
for the challenged distinction actually motivated the legislature.” Moreover, the court stated that
neither the fact that a statutory classification may be overinclusive or underinclusive nor the fact
that the generalization underlying the classification is subject to exception renders such a
classification irrational, for purposes of equal protection.24 Instead, the court stated that the
question “is whether the Florida legislature could have reasonably believed that prohibiting
adoption into homosexual environments would further its interest in placing adoptive children in
homes that will provide them with optimal developmental conditions.” The court found that there
are plausible rational reasons for the disparate treatment of homosexuals under Florida adoption
law.
Finally, the court noted that “any argument that the Florida legislature was misguided in its
decision is one of legislative policy, not constitutional law. The legislature is the proper forum for
this debate, and we do not sit as a superlegislature ‘to award by judicial decree what was not
achievable by political consensus.’”
On January 10, 2005, the United States Supreme Court, without comment, declined to
hear the case.25

Author Contact Information

Alison M. Smith

Legislative Attorney
amsmith@crs.loc.gov, 7-6054



20 Id. at 817.
21 Id.
22 Id. at 818.
23 Id.
24 Id. at 819.
25 358 F.3d 804 (11th Cir. 2004), pet. for cert. denied 73 U.S.L.W. 3399.
Congressional Research Service
3

---