Emerging Gay Adoption Fight Shares Battle Lines of Same-Sex Marriage Debate

Frank Martin Gill and one of his foster sons.

In less than a month, two little boys in Miami will learn if their foster father can become their adopted dad—or if they'll continue to be wards of the state. Frank Martin Gill has fostered the two since 2004, but his petition to adopt them has turned into an emotional court battle. In a worst-case scenario, they could be removed from his home. The hitch? His homosexuality, which, according to a 1977 state law, prohibits him from adopting children.

While Florida allows gay individuals to become foster parents, it is the only state to explicitly ban them from adopting. Even so, it's hardly alone in attempting to restrict placements to more "traditional" families. Mississippi bars same-sex couples from adopting. Utah prohibits both adoption and fostering by unmarried partners who live together, a de facto ban for gay couples. And in Arkansas, conservatives got the 61,794 signatures needed for a ballot initiative in November on a law like Utah's.

Gay adoption hasn't sparked a full-blown culture war—yet. The private nature of the process and piecemeal adoption laws have allowed it to be overshadowed by its hot-button cousin, same-sex marriage. But across the country, the issue is bubbling up. From courtrooms in Florida to the Arkansas ballot to the Tennessee legislature, gay rights advocates and conservative family values groups are fighting it out.

Stable homes. It's a particularly emotional issue, where both sides say the quality of children's lives is at risk. Advocates of gay adoption, joined by child welfare groups and the American Academy of Pediatrics, argue that it's a moral imperative to provide more of the nation's 500,000 foster care kids with stable homes. No credible evidence shows that having gay parents harms children, they say, and a ban only prevents judges from taking the child's best interests into account. But opponents argue that it's in every child's best interest to have both a mother and a father. Allowing gay couples to adopt is also seen by many conservatives as an unacceptable step closer to allowing same-sex marriage.

If the contours of the debate are straightforward, adoption laws themselves often are not. While three states have laws that effectively ban gay couples from adopting, 12 others allow same-sex couples to adopt. That leaves 35 states where gay couples can't be sure how likely it is that an adoption petition might pass.

Take the example of Michigan. The closest it has come to a statewide ruling on the issue is the attorney general's nonbinding 2004 opinion against unmarried couples adopting. Michigan courts tend to be conservative, which means they are very unlikely to allow adoption by gay couples, says Jay Kaplan, an attorney for the American Civil Liberties Union of Michigan who focuses on lesbian and gay issues.

Gay individuals have an easier time adopting because most courts treat the issue differently for singles versus couples. But in 22 states, it's unclear whether the second person in a gay couple can also adopt his or her partner's adopted or biological child. This can leave children without some key legal protections. "Adoption gives the child two legal parents, two people who have to support the child, two people that the child can inherit from. If the parent dies, the child can get security from either," says Jennifer Fairfax, a Maryland-based adoption attorney.

But some advocates fear that trying to increase legal clarity on gay adoption could end up decreasing rights. When Florida state Sen. Nan Rich proposed a bill to overturn the state's ban, she was warned that it could open a Pandora's box of conservative groups seeking to expand the ban to gay foster parents, she says.

Such a movement never materialized, but some advocates say that, in some ways, it might be better for the issue to be decided quietly in the courtroom, where judges grappling with the fates of families might be more understanding. But to groups seeking to ban the option, leaving it up to the courts is not enough. "To purposely create a family that says that either a mom is unnecessary or that a dad is unnecessary goes against all common sense, it goes against all the research, and it goes against 5,000 years of human history," says John Thomas, vice president of the Family Council.

For the Gill household, the equation is more personal. "Whether these kids get to stay in the only home one of them has ever known or get thrown back into the foster care system," says Gill's attorney, Robert Rosenwald, "the stakes couldn't be clearer."

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