Despite Same-Sex Marriage Ruling, Gay Adoption Rights Uncertain in Some States

By: - August 19, 2015 12:00 am

Crystal Keith Photography

Casanova and Daniel Nurse stand with children Ava Rose, 2, and Neijal and Cameron, both 4, whom they adopted from Florida’s foster care system. Some states still have barriers for married gay couples looking to adopt from foster care.

As soon as Daniel Nurse met baby Cameron in 2011, he knew he wanted to adopt him.

“It was just like instant love. He was so sweet and loving, and seeing him smile—it was just an instant connection,” Nurse, of Tallahassee, Florida, said of the baby, then 11 months old.

But going about adopting Cameron proved challenging for Nurse and his husband, Casanova. Florida’s 1977 ban on gay adoption had only recently been overturned when the Nurses began looking to take in foster children in 2011 with the hope of ultimately adopting them.

While same-sex couples have long been able to adopt from private, gay-friendly adoption agencies, adopting children from the foster care system has proved more difficult in some states.

The U.S. Supreme Court decision in June that made same-sex marriage legal nationwide is changing that, but not everywhere—particularly in states with laws that limit joint adoption to a husband and wife.

“Marriage doesn’t create this completely certain playing field,” said Ellen Kahn, director of the children, youth and families program at the Human Rights Campaign, which advocates for gay rights.

And some states have taken up legislation that would allow taxpayer-funded contractors that oversee state adoptions to refuse to let gay or lesbian individuals adopt children if it conflicts with the organization’s religious beliefs. Michigan passed such a law right before the court decision.

The Nurses became familiar with all these roadblocks when adopting Cameron and their two other children.

The couple found they were limited in which contractors they could work with because some wouldn’t allow gay and lesbian couples to adopt. And though Florida’s ban on gay adoption was overturned in 2010, the Nurses were unable to marry in the state until this year. Thus, they couldn’t file adoption paperwork together. The adoptions had to be filed under Daniel’s name only, and the couple faced the added time and expense of adding Casanova’s name later.

Change Comes State by State

Thirteen states—Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas—prohibited same-sex marriage before the Supreme Court decision.

All but Arkansas and Tennessee also had policies that did not allow gay and lesbian couples to adopt foster children jointly, according to the Human Rights Campaign. In Alabama, where a federal court overruled the state’s ban on gay marriage, gay couples were also not allowed to adopt jointly.

But many of those states are changing their policies in the aftermath of the Supreme Court decision. That’s the case in North Dakota, where the law allows single people to adopt but specifies that adopting couples must be “husband and wife.”

“It’s simple,” said Julie Hoffman, adoptions administrator for the state Department of Human Services. “Now that gay couples are allowed to marry, they’ll be treated like any other married couple who’s adopting.”

Georgia, Kentucky, Louisiana, Missouri, Ohio and South Dakota also are changing their practices to allow married gay couples to go through the adoption process together. Some of them said they’re starting to update their forms to make them gender neutral.

In Alabama, married gay couples will be allowed to adopt a foster child, but they’ll have to wait longer than most—the state requires married couples interested in adopting to have been married for a year before beginning the adoption process.

Mississippi is the only state that has a law that specifically bars gay couples from adopting foster children, and Julia Bryan, spokeswoman for the state Department of Human Services, said the law will be followed unless the legislature makes any changes when it reconvenes in January. However, the ban is being challenged in the courts.

The Texas Department of Family and Protective Services also will wait on the legislature before changing how it operates, according to spokeswoman Julie Moody. Gay couples in the state will have to continue to have one member of the couple formally adopt the child, she said, and then the other member has to come back later to do a second parent adoption—a similar process to a step parent adopting a stepchild.

Nebraska policy prevented unmarried couples, gay or straight, from fostering or adopting state wards until 2012, when the state started allowing gay couples to become foster parents, ultimately placing foster children with 15 same-sex couples, according to the Omaha World Herald.

A county judge recently struck down the unmarried couple ban. But the state is planning to challenge that, saying that the broad scope of the order would require its Department of Health and Human Services to treat “unrelated, unmarried adults residing together” the same as it treats individuals and married couples. A statement from the Attorney General’s Office said that would make it more difficult to make placements in the best interest of the child.

Religious Interests

Although the court decision is leading to changes in some states, others are creating new roadblocks to gay adoption.

Michigan is one of the first states to enact a law that allows groups that contract with the state to oversee adoptions to decline service to any person or couple that conflicts with their “sincerely held religious beliefs.” Similar bills were considered in Alabama, Florida and Texas.

Republican state Rep. Thomas Hooker, who worked on the Michigan bill, said he was worried that if the state didn’t pass the law, it might have lost the roughly 30 percent of adoption agencies the state contracts with that are religiously affiliated.

That has happened in other states. Some Catholic organizations in Illinois and Massachusetts shut down rather than violate their conscience by serving gay couples.

But opponents of the Michigan law say its language is too broad, giving religious organizations leeway to discriminate against not just gay couples, but single people, interracial couples, people of other faiths or anybody who they say conflicts with their faith.

“Discrimination shouldn’t be happening at all, and it shouldn’t be done using taxpayer dollars,” said Lonnie Scott, executive director of Progress Michigan, an advocacy group that lobbied against the law.

Hooker said the law doesn’t pose a disadvantage to gay couples because the organizations will have to refer anyone they turn down to an organization that is willing to serve them.

While religious groups often argue that same-sex parents could be damaging to children, nearly all research has found the opposite. A 2015 project at Columbia University assembled scholarly, peer-reviewed studies on the well-being of children with gay parents. Of 77 studies, just four found that having gay parents negatively impacts a child.

Even in states that require agencies to work with gay couples, there are no guarantees against discrimination in deciding whether to allow them to adopt.

“It’s easy to find a way to say no to a couple. It’s easy to prioritize some couples over others,” said April Dinwoodie, chief executive of the Donaldson Adoption Institute, which researches adoption policy. She said if case workers have a bias, “they can find something within a home study that doesn’t suit them or find a reason a child wouldn’t be a good fit for a home.”

‘Love Is Love’

Daniel Nurse went to Florida’s Capitol earlier this year to testify against a bill that would have protected state contractors’ ability to turn him away. He put up pictures of his family. In addition to Cameron, now 4, the couple has adopted Neijal, also 4, and Ava Rose, 2.

Nurse questioned how someone could look at faces like those and argue they didn’t deserve the home that they now have.

“Love is unconditional. Love is love, and it’s what these children deserve,” Nurse said. “A person’s lifestyle shouldn’t matter if they can provide love and compassion.”

The bill passed in the House, but later died in the Senate. It was a big year for gay rights in Florida. The legislature also passed a bill that formally removed the 1977 ban on gay adoption from law. This wasn’t just a symbolic move—it was an appellate court that overturned the ban, but the matter never came before the state’s Supreme Court.

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Rebecca Beitsch

Rebecca Beitsch writes about energy and the environment for Stateline. She covered state government in Missouri and North Dakota, writing about politics and policy for NewsRadio KMOX, the Columbia Missourian and the Bismarck Tribune.