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Experts: Supreme Court adoption ruling puts in doubt about 90,000 adoptions by unmarried couples
From a Oct. 11, 2011 Williams Institute news release
2011-10-12

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Today's decision by the U.S. Supreme Court declining to hear a case in which Louisiana refused to recognize an adoption by an unmarried gay male couple could potentially affect over 90,000 adopted children in the United States, according to research by The Williams Institute, a leading think tank producing research on issues of law and public policy related to sexual orientation and gender identity.

The Supreme Court decision in Adar v. Smith leaves in place a Fifth Circuit Court of Appeals ruling that upheld the right of the Louisiana state registrar to refuse to issue a birth certificate for the child adopted in New York by the gay male couple because Louisiana prohibits adoption by unmarried couples, including both different-sex and same-sex couples, within its borders. The 5th Circuit decision is a departure from a well-established line of cases interpreting the federal Constitution's "Full Faith and Credit" clause as requiring that the judgments issued by a court in one state, including adoptions, must be honored and enforced in other states.

The Fifth Circuit's decision could have broader implications, because Louisiana's law is not unique. Like Louisiana, at least five other states prohibit second-parent adoption by an unmarried partner of a child's legal parent per official construction of state law. One additional state expressly limits adoption to married, different-sex couples by statute, and one other allows adoption by unmarried, different-sex couples, but not same-sex couples, whether married or unmarried.

The Williams Institute's research reveals the breadth of this decision's potential impact:

- Over 90,000 adopted children in the United States could potentially be affected if the other states mentioned above followed Louisiana's position in this case.

- According to 2009 data from the U.S. Census Bureau, an estimated 47,000 unmarried, different-sex couples currently are raising over 64,000 adopted children in the United States.

- Additionally, an estimated 20,000 same-sex couples are raising nearly 30,000 adopted children.

While it cannot be determined how many of these children have been adopted by both members of these couples rather than by only one member, these are the best data available for estimating the entire population of families potentially affected by laws and policies such as Louisiana's.

Analysis of Census Bureau data also show that these couples are geographically diverse and live in every state in the United States:

- On average, individuals in same-sex or unmarried, different-sex couples raising adopted children are more likely to be racial and ethnic minorities than individuals raising adopted children as a whole in the United States.

- Parents in these families are younger and more likely to be employed, but have lower household incomes than families with adopted children generally.

Families in this population can be potentially affected by laws such as Louisiana's even if they don't live in, or move to, one of the states that does not allow unmarried couples to adopt. Even when in a state temporarily because of travel, legal recognition — or not — of an adoption can become relevant when a parent must make a medical decision on the child's behalf or if a child simply becomes lost and must be identified to be released to the parent ( s ) by the relevant local authorities. In an even worse scenario, if a child dies during such a trip, only adoptive parents whose legal status is recognized will likely be able to recover their child's body.

The Williams Institute filed an amicus brief in the Supreme Court in Adar v. Smith presenting data on the population of families potentially affected and the legal issues that could arise even for families who live outside these states. The Supreme Court's decision not to grant review in this case leaves for another day the question whether the Fifth Circuit has interpreted the federal Full Faith and Credit clause properly. Supreme Court review in the future will be more likely if another federal appellate circuit considers the same question and reaches a different conclusion about what the U.S. Constitution requires.

About the Williams Institute

The Williams Institute advances sexual orientation law and public policy through rigorous, independent research and scholarship, and disseminates it to judges, legislators, policymakers, media and the public. A national think tank at UCLA Law, the Williams Institute produces high quality research with real-world relevance. For more information go to: www.law.ucla.edu/williamsinstitute/home.html


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