Adoption and Same-Sex Couples: Overview

In 2015, the U.S. Supreme Court recognized that gay couples have a constitutional right to marry. It was a decision that also had an impact on adoption rights for same-sex couples.

Although the case before the Supreme Court, Obergefell v. Hodges, didn't explicitly address adoption, some of the plaintiffs in the case raised adoption-related issues. The 2015 ruling explicitly recognized that one of the benefits of marriage involves adopting children.

The picture looked quite a bit different before Obergefell. While some states protected same-sex couples' right to adopt children, others expressly prohibited same-sex couples from adopting. In states where no such prohibitions existed in law, there simply were no laws concerning the matter on the books. By 2015, only Mississippi remained with an all-out ban on LGBTQ+ couples adopting.

The legality of Mississippi's law was thrown into doubt by Obergefell. One year later, a Mississippi federal court blocked the state from enforcing its adoption ban against married same-sex couples. That court explained that the Supreme Court had meant for its gay marriage decision to extend "to marriage-related benefits—which includes the right to adopt."

Read on to learn more about the basics of adoption and same-sex couples.

Adopting as a Same-Sex Couple: After Obergefell

Although Obergefell's reverberations for adoption have yet to be fully resolved, a few things are clear. One is that LGBTQ+ couples must be married to assert the potential adoption right mentioned in the Supreme Court's opinion. After all, Obergefell was a case about the right to marry and receive benefits that flow from married status. It didn't involve unmarried couples or single people whatsoever.

Second, while Obergefell held that the government must not discriminate against same-sex couples, it had little or nothing to say about what private organizations may do with respect to adoption and such couples. Private faith-based adoption agencies may still choose not to work with same-sex married couples, unless the state has an anti-discrimination law that requires otherwise. A number of states do have laws of this kind.

State Law Obstacles to LGBTQ+ Adoption

In a backlash to gay marriage and to Obergefell, a number of states have taken steps that hinder adoption by same-sex couples. In particular, some states have passed laws allowing faith-based, state-funded child welfare agencies to refuse to place children with gay people. Similar legislation was introduced in Congress in 2018 but failed to pass into law. Supporters of such restrictions argue that private agencies should not be compelled to abandon their sincerely held religious beliefs.

Some of these laws have begun to be challenged in court, and a case could eventually wind its way up to the Supreme Court. Although no one knows how the justices would rule, many of them might be sympathetic to protecting religious freedom in this context. The high court has frequently recognized that private individuals and organizations have a First Amendment right not to be forced to take actions that conflict with their religious beliefs.

Of course, whatever may happen with religious freedom laws, not all faith-based child welfare agencies are opposed to same-sex adoption. Many remain open to helping LGBTQ+ couples become foster parents or adopt children.

Help for LGBTQ+ Couples Seeking to Adopt a Child

There are many uncertainties in this fast-developing area of law. If you're looking to adopt as a same-sex couple, a trained legal professional can help you navigate the system. You may wish to speak with an experienced family law attorney near you who has handled adoptions by LGBTQ+ couples.