On the last day of March 2016, a U. S. District Court judge in Mississippi issued an injunction forbidding state officials from enforcing a state law that prohibited adoption by same-sex couples. Judge Daniel P. Jordan III ruled that the Executive Director of the Mississippi Department of Human Services, which oversees adoption and foster care services in the state, must allow same-sex married couples to adopt children the same as heterosexual married couples. Campaign for Southern Equality v. Mississippi Department of Human Services, S.D. Miss., No. 3:15-cv-00578-DPJ-FKB, March 31, 2016.
Judge Jordan noted that the state had “offered a tepid defense of the statute … .” Regulation of same-sex relationships are so politically unpopular that it seems that many state attorneys are unwilling to provide good faith, zealous competent defense. (That is unprofessional, but, sadly, not uncommon when public lawyers are required to defend controversial laws that they personally dislike.)
The federal court based its order upon the Supreme Court ruling last June in Obergefell v. Hodges which held that same-sex couples are entitled to marry the same as heterosexual couples. However, there are powerful differences between marriage and parenting (including adoptive parenting). Those differences provide a possible basis for distinguishing between marriage of same-sex couples and adoption of children by same-sex couples.
Marriage is a horizontal relationship between two adults (or nearly-adult adolescents deemed to be of adult maturity). One justification for very liberal marriage regulations, including allowing same-sex couples to marry, is that marriage impacts directly and most significantly the persons (adults) who choose to marry. If the marriage is a disaster, at least it is a disaster they chose.
Adoption, on the other hand, is a vertical relationship between persons with different levels of knowledge, experience, and authority. One of the persons in the adoption process is a vulnerable child. The state and society have a profound moral and social responsibilities to protect vulnerable individuals, especially children. That is why adoptions are so strictly regulated by the state.
Marriage (tragically and perhaps unwisely) is very easily terminated. In today’s world of no-fault divorce, either spouse can obtain a divorce for almost any reason – or, literally, for no reasons whatever (hence, “no-fault” divorce). There are nearly a million divorces per year in the United States.
Adoption, on the other hand, is structured to be very difficult to terminate – it is practically permanent. It is intended to last because stability is extremely important for children, and because instability in parent-child relations always harms the children most heavily.
So marriage and adoption are like apples and oranges. Same-sex marriage only directly and immediately impacts the adult same-sex couple. Same-sex adoption directly and immediately impacts a very vulnerable child.
Growing up with two mommies means the child is being raised without any daddy. Growing up with two daddies means the child is being raised without any mommy. Children need both a mother and a father to develop most completely and to fully flourish. Children being raised by two mommies or two daddies are missing an important relationship, and they know it.
A poignant illustrative example of the need for both parents (and children’s hunger for both parents) comes from an opinion commentary published in 2013 in the New York Times by a gay adoptive parent. He wrote:
“SOMETIMES when my daughter, who is 7, is nicely cuddled up in her bed and I snuggle her, she calls me Mommy. I am a stay-at-home dad. My male partner and I adopted both of our children at birth in open domestic adoptions. We could fill our home with nannies, sisters, grandmothers, female friends, but no mothers.
“My daughter says ‘Mommy’ in a funny way, in a high-pitched voice. Although I refer the honors immediately to her birth mom, I am flattered. But saddened as well, because she expresses herself in a voice that is not her own. It is her stuffed-animal voice. She expresses not only love; she also expresses alienation. She can role-play the mother-daughter relationship, but she cannot use her real voice, nor have the real thing.”
All persons who care for a child in need of parenting (either couples or single adults) are performing a very important service. They deserve credit for caring for needy children. Providing duplicate mothering or fathering is valuable in some ways. But it is not as valuable as providing both a mother and a father.
Adoption creates parents for parentless (or partially-parentless) children. Adoption is an imitative legal relationship, designed to mimic the natural relationship of biological parents and children. Same-sex adoption creates a half-orphan parenting situation, permanently depriving a child of a mother or a father.
Sadly, however, Judge Jordan’s assumption that the U.S. Supreme Court is likely to compel states to allow same-sex couple adoption is probably correct. One of the reasons given for mandating same-sex marriage in Justice Kennedy’s opinion for the Court in Obergefell was because marriage “safeguards children,” because “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples.”
Justice Kennedy looked at only half of the ledger in Obergefell – the potential-benefits-to-children side. He failed to consider the potential harms and disadvantages to children from same-sex parenting. He did not do his homework. He simply assumed that there is “no difference” to children between being raised by dual-gender parents and being raised by same-sex parents. That is a very dubious assumption.
The policy questions about which alternative relationships should be allowed to adopt children deserve thorough study and careful consideration. It is not appropriate to decide such questions by judicial fiat or by trying to conform to perceived social trends.
When the California Supreme Court legalized “second-parent” adoptions in Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003), Justice Janice Roberts Brown filed a separate opinion. She powerfully criticized the majority for “[t]rivializ[ing] [f]amily [b]onds” and “import[ing] the principles of the marketplace into the realm of home and family … .” Id. at 586. She reminded the majority that all “[s]ociety has a considerable stake in the health and stability of families. …” Id. She ridiculed the majority’s “the-more-parents-the-merrier view of parenthood,” and noted that single parent adoption presents a “choice … between adoption and foster care,” whereas in some alternative relationship situations “the child may be worse off than if the birth parent had simply raised the child alone.” Id.
Sadly, the same criticism can be made of Judge Jordan’s opinion forcing Mississippi to allow same-sex married couples to adopt. The welfare of children was sacrificed to adult political correctness.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.