Adoption equality is not a sure thing

In his majority opinion ruling that same-sex couples have a constitutional right to marry, U.S. Supreme Court Justice Anthony Kennedy wrote that, “As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.” Agreement across all parties in the marriage litigation that same-sex couples offer suitable homes for children mirrors both scholarly and public opinion. In its friend-of-the-court brief submitted in the marriage cases, the American Sociological Association stated that, “The clear and consistent social science consensus is that children raised by same-sex parents fare just as well as children of different-sex parents.” Gallup polling suggests that 63% of Americans believe that same-sex couples should have the legal right to adopt, up from just 28% two decades ago.

Does ensuring that same-sex couples have equal access to marriage mean that they’ll also have equal access to adoption? Perhaps not. Despite marriage equality, and maybe even because of it, some states may implement policies that allow state-licensed adoption and foster agencies to refuse to serve same-sex couples if doing so violates sincerely held religious beliefs.

Same-sex couples play a disproportionate role in the nation’s adoption and foster care systems. They are three times more likely than their different-sex counterparts to be raising adopted or foster children. Among married couples, that gap is even wider as same-sex couples are five times more likely. Analyses of 2013 American Community Survey (ACS) data show that, in states where same-sex couples could legally marry, more than three percent of adopted or foster children have same-sex parents. Since only about 0.3 percent of all children in those states have same-sex parents, it means that adopted and foster children there are nearly ten times more likely than children in general to have same-sex parents.

Adoption, even from public agencies, can be expensive. It’s no surprise then that same-sex couples with adopted children have relatively high household incomes. In the 2013 ACS, the median household income of same-sex couples with an adopted child under age 18 was $120,000. Among same-sex couples with children who were not adopted, it was just $67,500. The comparable gap among different-sex couples is much narrower, $87,000 versus $79,000.  What might explain such a big difference?

Historically, some states have put barriers in the way of same-sex couples adopting children. For example, Florida only recently formally lifted its decades-old ban on adoption by lesbians and gay men. Among the four marriage cases that were before the Supreme Court, DeBoer v. Snyder began as a challenge to Michigan’s law that permitted only married couples to jointly adopt. With restricted access to public adoption and fostering agencies, same-sex couples likely turned to more expensive private adoption agencies more often than their different-sex counterparts. As a result, same-sex couples who are raising adopted children today tend to be those with substantial economic advantages.

Only seven states actually have laws that prohibit discrimination in adoption based on sexual orientation (and only two prohibit discrimination associated with gender identity). Three states (Virginia, Michigan, and North Dakota) allow state-licensed child welfare agencies to refuse to place children with same-sex couples or LGBT people if doing so conflicts with religious beliefs. Florida, and likely some other more socially conservative states, may soon follow their lead. Barriers to adoption may remain, and even grow, for same-sex couples while barriers to marriage have fallen.

Same-sex couples may need to rely on adoption more than ever before in order to form their families. The proportion of them raising children under age 18 has been declining from 25% in 2005 to 18% in 2013. This is likely because as lesbians and gay men come out earlier in life, they are becoming less likely to have sexual relationships with different-sex partners while young. These early different-sex relationships were responsible for a large portion of lesbian and gay parenting. As fewer lesbians and gay men have children with different-sex partners, adoption and reproductive technologies will become more attractive to those who want to have children.

Without efforts to ensure that LGBT people and same-sex couples have equal access to public adoption and foster placements (and insurance coverage for reproductive technologies), parenting may become something that only relatively wealthy LGBT people can afford. Despite widespread agreement that same-sex couples can create loving and nurturing homes for children, it appears likely that efforts will be made to restrict their parenting options. High rates of adoption show that same-sex couples play a disproportionate role in caring for some of the nation’s most vulnerable children. Constructing barriers to their access to public adoption when an estimated 100,000 children in foster care currently await adoption is a bad idea for America’s kids.

Gary J. Gates is the Blachford-Cooper Distinguished Scholar and Research Director at the Williams Institute, UCLA School of Law. He co-authored The Gay and Lesbian Atlas and studies the geography and demography of the LGBT population. (Justice Kennedy cited Gates’ demographic research in his majority opinion holding that same-sex couples have a constitutional right to marriage.) Follow him at @DrGaryJGates.

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