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LESBIAN AND GAY ADOPTERS: SOCIAL CONTEXT AND LEGAL POLICIES By MELANIE L DUNCAN A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2014
2014 M elanie L. Duncan
To Mom and Dad, thank you for all of your support throughout three states, moves, and degrees. We did it!
4 ACKNOWLEDGMENTS I would like to thank my parents for their support throughout this process. Ten years of college was not easy, but they helped me through them unconditionally To my dissertation chair, Dr. Connie Shehan, I owe much. She has pushed me forward on this project, even when I was ready to take a step back. Thank you for the endless meetings to help talk me through the little things. I would like to thank Dr. Barbara Zsembik for tirelessly working with me in her seminar to see this project take shape. Were it not for her efforts, I highly doubt that this project would be complete or what it is today. I would like to thank my dissertation committee for making me a better scholar. It was a rough road, but you all supported me and pushed me through until the end. I would have to say that I am happy with the end results and I hope you are as well. I would also like to thank Dr. Markus Kemmelmeier for h is support over the last six years. I count myself lucky to have had him as a mentor. He guided me through many stages of academic life and I look forward to calling him a colleague in the true st sense of the word.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ 4 LIST OF TABLES ................................ ................................ ................................ ........... 8 LIST OF FIGURES ................................ ................................ ................................ ........ 9 LIST OF ABBREVIATIONS ................................ ................................ .......................... 10 ABSTRACT ................................ ................................ ................................ .................. 11 CHAPTER 1 INTRODUCTION: OVERVIEW OF ADOPTION AND ITS LEGAL FOUNDATIONS ................................ ................................ ................................ .... 13 Adoption Law and Policy ................................ ................................ ....................... 14 Federal Regulation of Adoption ................................ ................................ ....... 14 State Regulation of Adoption ................................ ................................ ........... 18 Full Faith and Credit ................................ ................................ ........................ 19 Access to Adoption Records ................................ ................................ ........... 20 The Adoption P rocess ................................ ................................ ........................... 21 Selecting an Agency: Public vs. Private ................................ .......................... 21 ................................ ................................ .................. 24 A Check up On the Home ................................ ................................ ............... 26 Expens es ................................ ................................ ................................ ........ 27 Categories of Adoption: Profiles of Adopters and Adoptees ................................ ... 28 Single, Joint, and Second Parent Adoptions ................................ ................... 29 Where Can Children Be Adopted From? ................................ ......................... 31 2 ADOPTION, LAW, AND SOCIETY: A REVIEW ................................ ..................... 35 Sociological Perspectives on Family Formation and Social Constructionism ......... 36 History of Adoption in the United States ................................ ................................ 38 The Social Origins of Adoption Policy ................................ ................................ .... 41 ................................ ................................ .......... 43 Single Parent Families ................................ ................................ .................... 44 Interracial Families ................................ ................................ .......................... 46 Transnational Families ................................ ................................ .................... 49 Adoption by Lesbians and Gay Men ................................ ................................ ...... 51 Social Attitudes Toward LG Adopters ................................ .............................. 52 Legal Stance on LG Adopters ................................ ................................ ......... 53 Implications for the Future of Adoptive Families ................................ .................... 57 Adoption and Marriage: The Implications of Relationship Recognition on Adoptions ................................ ................................ ................................ ........... 59
6 The Sociology of Law: Theoretical Frameworks ................................ .................... 62 Theoretical Perspectives on th e Sociology of Law ................................ ........... 64 A Comprehensive Approach to the Sociology of Law ................................ ...... 68 Adoption: Social Context, Legal Policies, and The Sociology of Law ..................... 69 3 RESEARCH DESIGN ................................ ................................ ............................ 71 Construction of the Database ................................ ................................ ................ 71 Region ................................ ................................ ................................ ............ 72 General Population Size ................................ ................................ .................. 72 LG Population Size ................................ ................................ ......................... 72 LG Parenting Data ................................ ................................ .......................... 73 Political Affiliations ................................ ................................ .......................... 73 Religi ous Faiths ................................ ................................ ............................... 74 Racial Composition ................................ ................................ ......................... 75 Adoption Statutes ................................ ................................ ............................ 75 Explicit Mention of Sexual Orientation or Gender in Statute ............................ 75 Status of Lesbians and Gay Male Adopters ................................ ..................... 76 Location of Adoption Decision ................................ ................................ ......... 76 Status of Relationship Recognition for Lesbians and Gay Men ....................... 76 A Typology of States Based on LG Adoption and Marriage Laws .......................... 77 Case Study Methods ................................ ................................ ............................. 79 How Are Ca se Studies Conducted? ................................ ................................ 80 The Utility of Case Studies ................................ ................................ .............. 82 Limitations to Case Study Designs ................................ ................................ .. 82 Selection of States for Individual Review ................................ ......................... 83 Execution of Case Studies of Individual States ................................ ............... 83 Analysis of Case Studies ................................ ................................ ................. 86 4 THE PRESENT STATE OF LG COUPLES ACCESS TO ADOPTION AND MARRIAGE: AN OVERVIEW OF STATES ................................ ............................ 88 State Demographics and Statistics ................................ ................................ ........ 88 Regional Variation ................................ ................................ ........................... 88 General an d Same Sex Couple Populations ................................ ................... 90 Political Affiliation ................................ ................................ ............................ 94 Religious Faiths ................................ ................................ ............................... 95 Racial Composition ................................ ................................ ......................... 99 Breakdown of LG Adoption Laws ................................ ................................ ......... 101 Relationship Recognition Laws ................................ ................................ ............ 106 Sex Marriage Laws ........................ 108 Characteristics of States within the Typology ................................ ....................... 111 Yes/Yes ................................ ................................ ................................ ......... 112 Yes/No ................................ ................................ ................................ .......... 113 No/No ................................ ................................ ................................ ............ 114 Unclear/Yes ................................ ................................ ................................ .. 115 Unclear/No ................................ ................................ ................................ .... 115
7 5 CASE STUDY ANALYSES: A COMPARISON OF STATES WITH OPPOSING VIEWS ................................ ................................ ................................ ................. 117 States with Affirmative Stances on Same Sex Couples Adopting and Marrying ... 117 California ................................ ................................ ................................ ....... 118 Connecticut ................................ ................................ ................................ ... 125 States with Prohibitory Stances on Same Sex Couples Adopting and Marrying .. 133 Mississippi ................................ ................................ ................................ ..... 133 Utah ................................ ................................ ................................ .............. 137 6 DISCUSSION ................................ ................................ ................................ ...... 142 The Outlook for Adoption by Lesbian and Gay Couples ................................ ...... 142 Case Study Analyses ................................ ................................ .......................... 144 States with Affirmative Stances on Adoption and Marriage ........................... 145 States with Prohibitory Stances on Adoption and Marriage ........................... 146 Implications of Case Studies ................................ ................................ ......... 147 What Holds the Most Sway: Social Attitudes or Legal Processes? ...................... 148 The Link Between Marriage and Parenthood ................................ ....................... 151 The Future of Adoption by Lesbian and Gay Couples ................................ .......... 154 Research Contributions and Future Directions ................................ .................... 155 LIST OF REFERENCES ................................ ................................ ............................ 157 BIOGRAPHICAL SKETCH ................................ ................................ ......................... 167
8 LIST OF TABLES Table page 3 1 Data to be collected for case studies. ................................ ................................ 85 4 1 Rel igious faiths present in states ................................ ................................ ....... 96 4 2 Racial and ethnic composition of states ................................ ............................. 99 4 3 Type of LG adoptions permitted ................................ ................................ ...... 102 4 4 Detailed breakdown of location of decision concerning adoption law for LG .... 104 4 5 Detailed breakdown of relationship recognit ion laws for same sex couples ..... 106
9 LIST OF FIGURES Figure page 1 1 Timeline of federal regulation of adoption ................................ .......................... 15 4 1 Regional breakdown of the United States ................................ .......................... 89 4 2 Detailed regional breakdown of the United States ................................ ............. 90 4 3 Same sex couples per 1,000 households in each state ................................ ..... 92 4 4 Percent of same sex couples r aising children in each state ............................... 93 4 5 Republican and democrat state map of 2012 presidential election .................... 95 4 6 Types of adoption available to same sex couples ................................ ........... 103 4 7 Same sex relationship recognition laws ................................ ........................... 108 4 8 Typology of states based on same sex ad option and marriage laws ............... 110 4 9 Typology of same sex adoption and marriage laws ................................ ......... 111 5 1 Timeline of adoption and same sex marriage in California .............................. 119 5 2 Timeline of adoption and same sex marriage in Connecticut ........................... 126 5 3 Timeline of adoption and same sex marriage in Mississippi ............................ 135 5 4 Timeline of ado ption and same sex marriage in Utah ................................ ...... 138
10 LIST OF ABBREVIATIONS CAPTA DOMA LG Child Abu se Prevention and Treatment Act Defense of Marriage Act Lesbians and Gay Men SSM Same Sex Marriage
11 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy LESBIAN AND GAY ADOPTERS: SOCIAL CONTEXT AND LEGAL POLICIES By M elanie L D uncan May 2014 Chair: Constance Shehan Major: Sociology Same sex marriage debates have brought attention to the social and legal issues that lesbians and gay men face. However, less attention has been given to the ability of lesbians and gay men to adopt children. This study investigate d the variation between states regarding their legal policies and social context toward lesbians and gay men as adopters. Based on a revi ew of the literature and state laws, a typology of state policies toward lesbians and gay men adopting and marrying was constructed. From this typology, states were categorized into these types and selected for in depth case studies Four states (Californi a, Connecticut, Mississippi, and Utah) were selected for in depth case studies of their legal policies and social context pertaining to lesbian and gay couples adopting and marrying. Case studies cover ed the changes in social context and legal policies in a given state from January 1990 to December 2013. Th e date range encompasse d the majority of movement that ha d been made with regards to adoption and relationship recognition policies pertaining to lesbians and gay couples States were analyzed for pattern s in their adoption policies and similarities /differences to other states The case studies revealed that the states with more favorable policies toward same sex couples adopting and marrying required more steps and time to
12 establish their stances The states that were not in favor of same sex couples adopting and marrying took very firm and decisive stances on their policies by only requiring one step to establish their perspectives. States will take different paths to achieve their stance on same sex couples adopting; however, there does appear to be a relationship between adoption and marriage that should be explored further in future research
13 CHAPTER 1 INTRODUCTION: OVERVIEW OF ADOPTION AND ITS LEGAL FOUND ATIONS The growing attention given to the origins of sexual orientation and the rights that should or should not be afforded to individuals in same sex relationships has sparked heated debates. More often than not, these debates are centered on whether o r not same sex couples should be able to legally marry (Polikoff, 2008). Beyond the same sex marriage (SSM) debate, there is a growing body of research that addresses parenting by lesbian and gay individuals and couples in relation to their fit ness to pare nt and whether or not they should be allowed to adopt ( Fitzgerald, 1999; Patterson, 2002; Patterson, 2009 ) M uch of the research on same sex marriage occurs within the social sciences with the primary focus being on attitudes ; however, attention should be given to how the legal status of lesbians and gay men (LG) as adopters has progressed and what the future may hold for them This project will investigate the status of gay and lesbian couples as prospective adoptive parents This inv estigation will be a state level analysi s of U.S. adoption policy. The specific goals of this project are to: (1) establish a typology of adoption policies for LG adopters on a state level, (2) conduct case studies of different cells in the typology regard ing the history of lesbians and gay men adopting in a given state and (3) compar e and contrast the case studies for the selected states to construct an explanation for the present state of adoption law. Historically restrictions have been enforced that limit who was considered to be desirable prospective adoptive parents which, in turn, shape d their ability to adopt. Marriage is often a central c riterion to couples being able to adopt ( Berebitsky, 2006; Hobbs, 2010 ). Having marriage as a criterion automa tically alters the access lesbians
14 and gay men have to adoption in the majority of the states specifically because they are unable to adopt However, while marriage may play a part in access to adoption, the absence of marital bonds does not fully explain why lesbians and gay men cannot adopt when there is strong research indicating that children who are raised by lesbians and gay men are not significantly different in any substantial way from children who are raised in heterosexual households (Fitzgerald 1999; Patterson 2002; Patterson 2009). Adoption Law and Policy The need to investigate the regulations that govern domestic adoptions will be addressed in this section. While the federal government set s broad guidelines for adoption, the final decisions regarding e ligibility to adopt and who may be adopted lies within the purview of the individual states. Regardless of the state in which an adoption occurs, every other state must recognize an adoption (S EE: Full Faith and Credit). The following is a review of federal and state regulation s of adoption in the United States. Federal Regulation of Adoption States garner the majority of the decision making power regarding who can adopt, who is eligible to be a dopted, and what processes people must go through to adopt. T he federal government has legislation to protect the overall welfare of children, encourage the ir placement in permanent homes, recognize the cultural background of children, and regulate interco untry adoptions ( Bureau of Consular Affairs 2011; Child Welfare Information Gateway April 2012 ). Social and legal policies on adoption have been in effect since the early 1900s; however, for the purpose of this review of federal jurisdiction, legal polic ies from the 1970s to present will be discussed.
15 Figure 1 1. Timeline of f ederal r egulation of a doption The Child Abuse Prevention and Treatment and Adoption Reform Act of 1978 was enacted to help ensure that children were placed in homes as opposed to remaining in foster care Specifically, that children with special needs found permanent adoptive fa milies, certain standards were me t for prospective adoptive parents, and adoption information could be shared on a national level (Child Welfare Informat ion Gateway April 2012). In that same year, the Indian Child Welfare Act (ICWA) was enacted. The implementation of this act was brought about by the continual placement of children of Indian heritage outside of their tribes, specifically in white househol ds. In response to this, the act was written to establish the precedent that Indian children who were available for adoption w ould be placed with families of Native American descent to help preserve the ir culture and heritage (Child Welfare Information Gat eway April 2012).
16 The Adoption Assistance and Child Welfare Act of 1980 made it possible for assistance payments to be available for those who adopted and defined what it meant for a child to be considered special needs (Child Welfare Information Gateway April 2012). In October of 1984, the Child Abuse Amendments required a Federal database to be established to collect adoption statistics This amendment also made efforts to see that child ren with life threatening conditions or special needs were placed with adoptive families (Child Welfare Information Gateway April 2012). In addition to seeing that a task force was formed to address child abuse and neglect, the Child Abuse Prevention, Adoption, and Family Services Act of 1988 saw to it that children who were placed in foster care became eligible for adoption and that minority children were placed with minority families (Child Welfare Information Gateway April 2012). There was a growing urgency to increase the visibility of children who were in need of permanent homes. To facilitate this process, the Child Abuse, Domestic Violence, Adoption, and Family Services Act of 1992 provided a provision to increase awareness of adoption and special needs children who were in need of a home (Child Welfare Informati on Gateway April 2012). The Multiethnic Placement Act of 1994 saw that prospective adoptive parents April 2012 p.19). T his policy was expanded in The Interethnic Provisions of 1996 to require that states and other adoption agencies adhere to the provisions of the 1994 act, especially if they wanted to remain eligible for federal funding. In the same year, amendments were p assed to reauthorize the Child
17 Abuse Prevention and Treatment Act (CAPTA) that had been reauthorized in 1978 (Child Welfare Information Gateway April 2012). In 1997, The Adoption and Safe Families Act made an effort to promote adoption and see that states were more diligent in their efforts to place children in appropriate homes and monitor these children (Child Welfare Information Gateway April 2012). Two years later, the Foster Care Independence Act of 1999 was enacted. This act required that state s mak e provisions to ensure that children were cared for after they were placed with adoptive families (i.e. through adoption incentive programs). In 2000, the Intercountry Adoption Act was enacted. This act was a step taken on behalf of the United States to j oin the Ha g u e Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. By signing on to the act, the U.S. was taking efforts to protect prospective adoptive parents and children from being taken advantage of in the adoption process (Child Welfare Information Gateway April 2012). More recent federal action on adoption has seen a continued effort to promote adoption and increase awareness of the number of children who need permanent homes. Specifically, the Adoption Promotion Act of 2003 reauthorized incentives for people who adopted special needs children and that children over the age of nine were placed in permanent homes (Child Welfare Information Gateway April 2012). The act also had provisions to penalize states that di d not provide accurate adoption and foster care data. In 2008, the Fostering Connections to Success and Increasing Adoptions Act adoptions to occur.
18 The majority of the fed eral measures that address adoption have focused on the promot ion of adoption, the maintenance of adoption and foster care data, and the placement of children in homes that can provide for their cultural, mental, and physical well being While these federa l acts impact the actions that states may take, there is very little about them, with the exception of not denying someone the right to adopt based on race, which to determine who they will or will not permit to adopt. Sta te Regulation of Adoption The federal government has placed boundaries on broad considerations that must be taken into account when adoption is being sought However, it is the finer details of who can adopt, who can be adopted, and what procedures must be followed that are left up to the indivi dual states. The details of every not be reviewed in this section, but what they can regulate will be outlined. S tates can place restrictions on the age, sex, gender, sexual orientation, marital status, religion, socioeconomic status, occupation, residence, and the child they wou ld be best suited to parent in determining whether or not someone will be a desirable candidate to adopt These restrictions are meant to find the best possible p arents for children, but sometimes the restrictions appear arbitrary or deny someone on not meeting one criterion who may be a great parent The num e r ous considerations that are placed on prospective parents also vary based on whether or not they are utili zing a public or private adoption agency to facilitate the process Often, the expectations for adoptive parents far outreach those that are placed on parents who have children biologically.
19 The discretion of states to determine who may or may not adopt w ithin their jurisdictions allows for a wide range of variation. This variation can be studied based on the characteristics of the adopters and it is central to the purpose of this research project. Much of what research has looked at the characteristics of adopters as they pertain to gender, relationship status, and race, but growing consideration should be paid to the impact that sexual orientation has in decisions concerning the appropriateness of p rospective adoptive parents. Full Faith and Credit State a degree of variation amongst their policies. As there is no consensus on who may or may not adopt within all 50 states, it is necessary to see that an adoption that takes place in one state will be recognized in another. To ensure that this happens, the Full Faith and Credit Clause from Article IV of the United States Constitution is invoked ( Hobbs 2010) nd (U.S. Constitution) The states are also able to determine what proof is necessary to give recognition to these proceedings within their own jurisdictions. The i mplications of thi s section are far reaching. The invoking of the Full Faith and Credit Clause means that marriages, adoptions, divorces, etc. that occur in one state must be recognized in any other state. If they were not, anytime someone moved or travele d across state lines, they would have to reestablish their relationships The process of reestablishing these legal bonds would be time consuming, redundant, and problematic for accurate record keeping.
20 While full faith and credit is considered to apply ac ross the board, there do appear to be some instances in which it is not observed. More specifically, the Defense of Marriage Act (DOMA) stated that same sex unions did not have to be recognized by states that did not allow them in their own jurisdictions ( H.R. 3396 1996) This appears to be one of the major exceptions to this clause and it only applie d to marriages between two individuals of the same sex and not adoptions by them. This means that if a same sex couple adopted in a state that legally permitt ed them to do so and then moved to a state that prohibited them from doing so (or was unclear) that their legal rights as parents could not be questioned. Adoption is distinguished from marriage because it involves parental relationships with minor childre n ( Appell, 2012; Ball, 2012; Hobbs, 2010 ) To question the legality of the parent/child relationships would be detrimental to the children and punish them for something that is outside of their control. Therefore, even though same sex marriages were not su bject to recognition under Article IV, Section 1 of the Constitution, adoptions by same sex couples or individuals are. Access to Adoption Records A consideration in the adoption process is how much access birth parents, and the public, should have to adop tion information. Once an agency has been selected, the adoption application has been approved, a home study has occurred, and a child has been selected the remainder of the process is centered on making the adoption legal. Part of this process involves w hether or not the adoption records would be open or closed. Open adoption records are a matter of public record ( Siegel & Smith, March 2012 ) This means that they can be accessed by a nyone who is interested in the
21 adoption proceedings. Typically, this also means that birth parents can seek out their children or have some form of communication with them, or the adoptive parents, from the outset. These adoptions differ from closed adoptions in which the adoption recor ds are sealed ( Siegel & Smith, March 2012 ) It is possible to determine that a child was adopted, but it is not possible to determine by whom and how to get in touch with them. Closed adoptions are typically granted at the request of the birth or adoptive parents (Carp, 2002). The original intention behind sealing adoption records was to assist in were to sever all ties as to not confuse the child about their relation ships to the adults. It was also meant as a safeguard for protecting the child and parent relationship, The Adoption Process This section will address the process that a prospe ctive adoptive parent must go through, from start to finish in order to adopt Within this section, the selection of an agency, completion of an adoption application, homestudy process, and expenses will be reviewed. Selecting an Agency: Public vs. Priva te The path that a prospective adoptive parent takes in the adoption process is determined in large part by the agency that they work with. Adoption agencies are required to work within the confines of the laws of the state in which they reside; however, outside of those laws, some agencies have more flexibility. Often, the choice of agency is split between the public and private agencies ( Hobbs, 2010 ) Regardless of the route taken, the steps to adopt are often the same. The differences often emerge in th e social policies of the agencies and the expense that is incurred with adoption.
22 Public adoption agencies are most often linked to the foster care system. This means that an adoption is most likely going to occur after a child is born, with some having be en in foster care for an extended period before they are adopted. These adoptions will involve the completion of the application process, a home study, and the determination of the best child to be placed with the parents. While there are expenses involved with public adoptions, the overall cost makes this the least expensive route to take when adopting a child. The reduced expense may be linked to public adoptions not being a for profit endeavor ( Child Welfare Information Gateway 2013 ). With public adopti on agencies there is also a greater diversity of children who are available for being adopted, as well as adoptive parents who are looking for children ( Hobbs 2010 ). The social outlook toward adoptive parents is often viewed as being more inclusive in pu blic adoption agencies. This is due to the agencies being an extension of the government and not being grounded in a particular set of beliefs or ideologies that may not agree with certain types of families (i.e. biracial families or same sex couples raisi ng children). Private adoption agencies are subject to the same laws as public adoption agencies, but since they are privately owned and operated they are able to structure themselves in the manner that they see fit. For instance, private agencies may be able to work wi th an expecting mother to find a family for her child that is willing to cover the expense of the pregnancy and is involved in the process from practically the beginning ( Child Welfare Information Gateway 2013; Hobbs 2010 ). These agencies often have coup les on file who are looking to adopt a child and they are able to match the couples with a child earlier than it may be possible to do in public adoption agencies.
23 Unlike public adoption agencies, private adoption agencies have the ability to be selective They can be selective in the children that they place and in the adoptive parents that they will be willing to work with. Sometimes, these parameters are set by the operators of the agency or a larger body governing them (i.e. another business, social gr oup, or religious denomination). The ability of private agencies to be more discerning in their cliental makes them more appealing to certain adoptive parents, but it also allows them to pick and choose who they are willing to work with (Herman, 2008). Ult imately, a private agency can determine if they will allow a certain portion of the population to seek adoptions through them ( Herman, 2008: Hobbs 2010 ). In some states, there is growing concern that faith based adoption agencies will deny same sex couples access to adoption. This has been a concern about agencies that are run by Catholic ch arities in Illinois that have made statements to this effect (Huffi ngton Post November 15, 2011) While these are overt efforts on the part of these agencies to limit access of certain populations to their services, there are more subtle means through which this may occur. The cost, screening process, and other hoops tha t must be jumped through by potential applicants may eliminate candidates from consideration that the agencies find less desirable. By no means is this representative of the entirety of private adoption agencies, but it is a reflection of those who have cu ltivated this type of reputation for the private adoption sector Adoption agencies are the starting off point. The agency that an individual or couple selects will dictate the path that they take through the adoption process Once an agency is selected, t he process of starting the application procedures begins.
24 Filling out an application involves disclosing a certain degree of information about oneself and personal history. With adoption applications, this can be a rigorous and detailed process that may feel borderline invasive. Prospective adopters are expected to disclose as much information about themselves, their families, and any other details about their life that may be deemed pertinent to them being an ideal candidate fo r adoption. Adoption applications will vary based on the route taken (i.e. public vs private), but there is a base line of information that needs to be collected no matter what route is chosen. This information includes the name(s), address, phone number, date of birth, occupation, and employer of prospective adopters (Hobbs 2010; New York State Office of Children and Family Services 2011; State of California Health and Human Services Agency 2011) Additional information that may be required in this se ction can include: The marital history of the p rospective parents may also be used to determine the stability of the home (i.e. have they been married previously ho w many times, and why the relationship (s) end ed ). Any children who are in residence are also taken into consideration. Specifically, their ages, gender, relationship to the prospective adopters, religion, and race. Children who do not live with the p rospe ctive parents must also be disclosed as they may have interactions with the child at some point (Hobbs 2010; New York State Office of Children and Family Services 2011; State of California Health and Human Services Agency 2011) Some applications may inquire about the criminal history of prospective parents. This is the beginnin g of an investigation into the background of these individuals.
25 Additional information that may be collected includes : whether or not the applicants have previous ly attempted to adopt and what the outcome was, whether or not they are foster parents, and the child they are looking to adopt. Personal references who can attest to the character and ability to parent may also be requested (Hobbs 2010) While applications may not orientation, there are some applications that reinforce heteronormativity. If an not, it excludes same sex coupl es from being considered or feeling welcome. Applications, such as those for California and New York, are gender neutral in their wording (New York State Office of Children and Family Services 2011; State of California Health and Human Services Agency 2 011) They label the name categories that are gender specific, they are not explicitly being asked to classify themselves based on their sexual orientation or relationshi p to one another Once an application has been completed and submitted, it must be reviewed. The length of time that it takes from the submission of an application to making a decision regarding whether it is approved or rejected varies. Any information th at is provided by prospective parents (i.e. tax information or medical records) must be verified and, if necessary, documentation must be provided (Hobbs 2010). However, once an application makes it through the first step of approval, the prospective adop tive parent(s) must go through an intensive personal background check that includes investigations into their lives and their homes.
26 A Check up On the Home One of the steps in the approval process is a home study. Home studies involve a social worker or ag ency representative visiting the h ome of the potential adopter(s). This process also includes the required personal background checks, physicals, and thorough investigations into the character of the prospective parents ( Hobbs, 2010 ) These are very extens ive steps to investigate the potential that the prospective parents have for being successful as adoptive parents; however, the intention is to ensure that children are placed in a safe environment and that they will be taken better care of than they would have should they not be adopted or remain ed in foster care. A homestudy implies that the prospective physical residence is being inspected and to a certain extent it is. However, a homestudy involves investigating the state of the home to make sure it is safe for a child, allows for enough space for a child to grow/play, whether the residence is rented or owned, and that the neighborhood that home is located in is safe for a child to be brought up in. A check up on the home is typically schedul ed, but an agency may determine that another visit is necessary and that visit may or may not be scheduled in advance. Part of the reason for an unscheduled visit would be to see if the conditions that were observed in the scheduled homestudy are the true conditions that the household is in the majority of the time or if it was only made to look that way for the purpose of the visit. The personal background checks, physicals, and investigation of character references tend to be rather thorough. Background checks on prospective parents are done in two phases: criminal records and formal complaints (Hobbs 2010). The investigation into whether or not a prospective parent has a criminal record is to determine whether or not they have been convicted of a crime, either within the state
27 they reside or nationally (Hobbs 2010). Background checks that are looking into formal complaints are used to determine if allegations have ever been made against p rospective parents regarding child abuse or neglect (Hobbs 2010). These are legal investigations into the personal character of the prospective parents and their ability to provide a safe environment to raise children. Physical exams are utilized to determine that the prospective parents are in good health and they hav e not omitted any health problems that would make it difficult for them to care for children (Hobbs 2010). The implications of the physical exam are dependent on the results (i.e. certain conditions may be overlooked while others might prevent a prospect ive parent from adopting). The final step in the homestudy process is the confirmation of references. This process can involve both written and in person references being provided on behalf of the prospective parents (Hobbs, 2010) These references can be provided by family members, friends, co workers, employ ers, spiritual advisors, etc.. This step may also involve interviewing any other children or adults who will reside in the home with the children or come in regular contact with them. All three stages of the homestudy process are thorough and meant to ensure that the best candidates are selected to be adoptive parents. Expenses The expens e of adoption can vary widely. Due to the restrictions placed by state and government agencies, public adoptions te nd to be the least expensive option that a couple can pursue. Private adoptions can run higher due to the expense of working with a private agency as well as the potential need to cover expenses prior to the birth of the child. The one condition that these agencies must adhere to is that the fees must be March 2013). Eleven states have set
28 a specific fee that agencies can charge and eighteen provide opportunities for prospective adoptive parents to receive f ee waivers for adoption expenses (Child Welfare Information Gateway March 2013). Some states limit the expenses that prospective adoptive parents can be held liable for; however, they may choose to cover additional expenses on their own. State law may se e fit to have potential adoptive parents cover the expense of: medical care, legal fees, travel and accommodations, and counseling fees for the birth mother (Child Welfare Information Gateway March 2013). However, while prospective parents may be held lia ble for certain expenses, there are time limits in place for repayment to prevent too much time from lapsing to claim expenses. Seven states restrict the amount that a birth mother may be compensated. In any of these states, this amount cannot exceed $5,00 0 (Child Welfare Information Gateway March 2013) This is potentia lly done in an effort to protect the interests of the adoptive parents, as well as to ensure that birth mothers do not try to take advantage of these situations. While there are general gui delines set by states regarding adoption fees, there is still quite a bit of flexibility for private agencies to determine what they will charge for adoptions. Categories of Adoption: Profiles of Adopters and Adoptees Access to adoption is dependent on the characteristics of the prospective adoptive parents and the child(ren) they are seeking to adopt. If a prospective adoptive parent does not meet certain criteria their application to adopt can be denied. However, for children, if they are not the most desirable type of child to adopt it may take them longer to be adopted, if they ever are.
29 Single, Joint, and Second Parent Adoptions creates a wide range of potential adopters These adopters may vary from one another based on race, ethnicity, gender, sexual orientation, gender expression, occupation, SES, residence, etc.. Regardless of these differences, the common factor that is also considered is how they are petitioning to adopt on their own or with another adult. Single parent adoptions are exactly how they sound. One adult is adopting a child. For the most part, this refers to individuals who are not currently in a legally recognized union who are looking to adopt. Ther e are other adults who adopt on their own, but they may be in a relationship in which the oth er adult may not want to adopt a child. This would occur in situations where a married couple is either separated or the non adopting adult has made it clear that they do not want any legal ties to the potential adoptive child ( Hobbs 2010 ). Adoptions, such as these, do occur, but there may be more steps involved to prove that the non adopting spouse will not have an adverse reaction to the adoption. Another instan ce where only one party may adopt may occur when a couple is not eligible to adopt a child together, but they still want to adopt. This may be seen with couples who are not married or who are cohabitating. In some instances, couples who are cohabitating ma y be ineligible to adopt which would make this type of adoption available only to someone who is dating or not residing with their partner ( Human Rights Campaign, February 14, 2014 ) Joint, or c o parent, adoptions refer to adoptions that occur when two adu lts who have no legal or biological connection to a child seek to adopt it. Typically, this type of adoption is seen with married couples who are pursuing adoption through public or
30 private routes. Couples that fit into this category of adoption are the mo st common type of adoptive parents because they are the most desirable candidates (i.e. a married heterosexual couple is the golden standard for placing children). The challenge for same sex couples who are looking to adopt together is if there are restric tions based on the living arrangements of the couple (i.e cohabitating vs. being married) and their ability to adopt. Second parent adoptions refer to adoptions that occur when one of the adults is related to a child and their partner seeks to adopt said c hild. These type of adoptions are commonly seen with step previous relationship. Second parent adoptions also provide a means for same sex couples to parent. This can be seen with a lesbian couple who uses a sperm donor to help one of the partners conceive. The partner who carries the child is legally considered to be the mother; however, the partner who is not biologically related to the child does not have any legal right to be a parent, even thou gh the child was conceived within the context of the relationship with the intention to co parent. A similar example could be provided for a gay male couple who utilizes the services of a surrogate to become parents where one of the partners pro vides his s perm to help create the child. Regardless of the composition of the couple, or the path they took, either option affords one partner parental rights while the other must seek legal means (i.e. adoption) to ensure theirs. When looking at same sex couples w ho engage in second parent adoptions, one of the adults is typically either the birth parent and/or a contributor of either the sperm or the egg that was used to create the child(ren). In these circumstances, the parent who
31 did not carry the child or contr ibute to their conception in any way would need to have their legal right to parent recognized. Although they are in a relationship with the parent who is biologically connected to the child, this is not a guarantee that their relationship to the child wil l legally be recognized. For this reason, the non related parent will need to adopt the child through a second parent adoption to solidify their status as the second parent to the child. This is especially import for circumstances in which something happen s to the birth parent or the relationship dissolves. Without a n adoption in place, the status of the non birth parent would be in question and this would not guarantee them their parental rights. Where Can Children Be Adopted From? While the dynamics of the relationship between the adopters determines the type of adoption that they can pursue, the route that they take to adopt will also have an impact on the child(ren) that they adopt. Specifically, the gender, age, race, ethnicity, religion, and health of a child may vary based on the manner in which they are available for being adopted. Familial a doptions Life circumstances may require that family members adopt children from a relative. This can be seen in the form of grandparents adopting grandchildren, aunts or uncles adopting nieces and nephews, etc. The reasons why a family member may adopt a relative vary but they are often predicated by the death of their children, or the parents not wanting to keep the children. In these circumstances, the adoption of the child(ren) by a family member will often provide them with a more stable environment than they originally may have lived in. While the family memb er(s) would
32 still need to meet the legal criteria to adopt the child, there is often some flexibility to be able to see that the children stay within their family. Private a doptions Adoptions that are handled privately are often run through a private adoption agency; however, there may be inst ances in which a couple adopt s a child directly from the birth mother with the assistance of legal counsel. Private adoptions have more flexibility in structuring the relationship between birth and adoptive parent s than might be possible through foster care adoptions. As with working with a private adoption agency, private adoptions tend to be more costly and involved, but they often provide prospective parents with the opportunity to adopt the child that they most desire. Specifically, matching prospective parents with children that meet their gender, religion, race, ethnicity, or age criteria. Foster c are a doptions Children that are in the foster care system vary based on their age, race, and physical and develo pmental health (Herman, 2008). The time that a child spends in the foster care system will vary based on where they live, who is looking to adopt, the background of the child, and whether or not they have siblings (to name a few). Length of stay in foster care can be prolonged if a child is labelled as having behavioral or health issues. Groupings of siblings may also take longer to place. This is often due to every effort being made to maintain the family unit and not wanting to split up the children. The larger the sibling group the longer the wait time may be as prospective adopters may only be looking for one or two children to adopt Intercountry a doptions The previously discussed options for adopting a child refer to adoptions that occur within or a cross state lines. An alternative to domestic adoptions is adopting from another country. While domestic adoptions are not easy, the
33 pro cess of intercountry adoptions is more intensive and potential ly riskier than some may anticipate. As with domestic ado ptions, international adoptions should be facilitated by an adoption agency. This is a step that is meant to protect both the prospective adoptive parent and child(ren) from being taken advantage of. Once an agency has been found, the prospective adoptive parents must then determine what country they would like to adopt from. In addition to needing to meet the criteria of adopting within the country, the prospective adoptive parents may be subject to further restrictions based on the country they are seekin g to adopt from. For example, Russia has ceased to allow children to be adopted into the U.S. ( Bureau of Consular Affairs January 24, 2013 ). This restriction stems from the return of Russian children by their adoptive parents. China has also placed restri ctions on the children that may be adopted from their country due to the gender ratio imbalance as well as placing restrictions on same sex couples adopting ( Bureau of Consular Affairs June 2011 ). Adopting from other countries does come with a certain amo unt of risk. Any adoption has the potential of falling through, but there are increased concerns about intercountry adoptions being legal. The concerns are legitimate and are in response to children who were put up for adoption when they were not meant to be ( Custer July 25, 2013 ). To help make the process of adopting from another country more secure, an international convention was signed into effect in 1993 and the United States signed on to the convention in 2008 ( Bureau of Consular Affairs 2014 ). The Hague Convention is meant to safe guard the children that are put up for adoption to other countries. In order for a child to be eligible for international adoption the country of origin must exhaust all
34 efforts to see that the child is placed with their family or someone else in the country. If this is not possible, the child is then eligible to be put up for adoption outside of the country. Countries that have signed on to the convention have agreed to these terms and want to see that the children still have ties to their cultural background. While the co nvention is not a complete safe guard, it is highly advisable that prospective parents adopt from a convention country. There are no such safe guards in place with non convention countries and this may pl ace the adoptive parents at risk of having to return the child at some point. While this chapter has address ed the legal basis for recognizing adoptions and the processes that prospective parents must go through to adopt, there has been little attention pa id to the specific legal and social policies that have shaped adoption as we know it today. Chapter 2 will address the legal and social foundations of adoption, the implications for marriage on adoption proceedings, and why it is vital to utilize a compreh ensive appr oach to the Sociology of Law to gain the greatest understanding possible about how the law and society treats lesbian and gay couples who are seeking to adopt.
35 CHAPTER 2 ADOPTION LAW, AND SOCIETY: A REVIEW There are more than 1.5 million adopted children in the United States (Evan B. Donaldson Adoption Institute 2013). Collection of adoption statistics is no longer required by the federal government. States now have the ability to decide what statistics, if any, will be collected on adoption. This means that there are gaps in estimating the number of children who are adopted annually, as well as the number of children who are waiting to be adopted. While there is no formal way to measure the number of children to be adopted, it is estimated that there are over 100,000 children waiting to be adopted in a given year (Evan B. Donaldson Adoption Institute 2013). Families have been an integral part of the United States since its inception. While this may seem rather commonsense our und erstandings of families regarding their purpose, composition, roles, and provisions/protections have changed over time. The shifts in families have sparked the interest not only of researchers, but also the legal system and society as a whole As these cha nges in families have occurred they have also raised concerns about which policies best address their diversity and how social attitudes shape the acceptance of these changing families. It is in these changes that we see the interaction between public opi nion and family law and policy. An interaction that has highlighted the similarities and differences between what the general public thinks about one family type and how the legal system classifies it, stances that may not always line up with one another. where conversations on family centered on the nuclear family model of mother, father, and children ( Storrow, 2001 ) As time went on definitions of what was considered to be
36 a fa mily changed to encompass the differences in purpose, composition, roles, and provisions/protections that families have taken and the need to understand how society and the legal system deal with these changes ha ve become increasingly important ( Treuthart, 1990/1991 ) Changes in families have helped account for the variety of ways that families could be formed and built upon. For instance, families have traditionally been formed through marriages and/or biological relationships; however, as life situations have changed families began to be formed through newly established legal relationships (i.e. adoption, remarriage) as well as through personal connections that did not necessarily have any prior legal foundations (i.e. friends that are considered to be mem 2006). Taking into consideration the changes that occurred in how families were formed adjustments were made within the legal system. Beyond families being formed through remarriage there were also families that were cr eated through adoption. Much like marriage policies, the laws and social protocol towards families have a way of shaping what family forms are considered to be acceptable. One means of exploring the acceptance of a variety of family types is to analyze ado ption through the social and legal history of how these adoptive families have been constructed. Sociological Perspectives o n Family Formation a nd Social Constructionism When discussing the manner in which families are constructed there are multiple means of defining a given family. Often, there are differences in the way that individuals describe who comprises their family and then the ways in which laws and society define it for them. The manner in which laws and society define families may also vary from one another; however, both legal and social definitions of families are considered to be social constructed in whole or part (Berebitsky, 2006).
37 Social constructionism looks at the way that meanings are formed an d associated with a given object or idea. Socially constructed meanings are often derived from historical contexts or tradition, as well as what is considered to be socially acceptable by the general population ( Berger & Luckmann, 1966 ). What is deemed to be socially acceptable is often determined by those who hold a majority status. This becomes evident when exploring the social construction of such terms as gender, race, sexuality, as well as family (Berebitsky 2006; Haney Lopez 1994; Maill 1996; Osmond & Thorne 2009; Seidman 2010) Gender is believed to be socially constructed as a means to separate men and women and define what is considered to be appropriate or For instance, tradi tional conceptions of gender depicted men as masculine breadwinners whose primary responsibility was to care for a family while women were expected to be models of femininity who were in charge of the domestic sphere and responsible for the rearing of chil dren ( Haney Lopez 1994 ). Social construction can also be applied to concepts of race. Differences in skin tone have often been used as a justification for differences between ethnic groups. The notion that these differences imply a hierarchy of sorts betw een ethnic categories was traditionally used as a means of expl aining variations in treatment ( Haney Lopez 1994 ). However, while social constructionism explains how differences between men, women, and racial groups have been perpetuated it does not necess arily condone the differences in treatment that these groups receive based on their constructed differences (i.e. racism and sexism). While gender and race have both received notable attention within the theoretical framework of social constructionism, family is a different story. Research has looked at
38 the social construction of illness, abuse, divorce, and gender within families; howev er, in looking more closely at the role that adoption plays in the social construction of families the research is less extensive ( Berebitsky 2006 ; Osmond & Thorne 2009 ). Of the research that does look at social constructionism and adoption some scholars have noted how professionals can facilitate a better transition within the adoption process in addition to looking more closely at how social attitudes impacted the state of adoption at a given point and time (Berebitsky 2006; Miall 1996). These studie s highlight not only a progression in research on adoption, but also a glaring need to further explore the relationship between social attitudes and legal policies on adoption and how they interacted with one another to create what a segment of society has socially constructed to be an acceptable type of family. History of Adoption in the United States The origins of adoption can be traced as far back as the Greeks who viewed the purpose of adoptions as a means of meeting the needs and interests of the adoptive families (Presser 2009). However, for the most part, the foundation of U.S. adoption policies is to seek out what situation meets the best interest of the children who were in need of a permanent home (Mabry & Kelly 2010). Adoption statutes seek ing to protect children in this capacity first came about during the mid 1800s (Presser 2009). Prior to any comprehensive legal stance being taken on adoption, Mississippi allowed adoption by deed which was a notation that someone intended to adopt a give n child and thus a paper trail was started (Mabry & Kelly 2010). In 1851, Massachusetts paved the way by being the first state to establish a comprehensive adoption policy which became the cornerstone for the legal foundations of modern adoption policy (Mabry & Kelly 2010; Presser
39 principles pertaining to the consent of the biological parents, the children if they were over a certain age, and both adoptive parents agreement to the a doption. Once these conditions were satisfied and the judge approved of the adoption the rights of the biological parents would be terminated and the adoptive parents legally assumed full responsibilities for the children (Presser 2009). Like marriage po licies, states have the ability to determine what policy best suits their constituents; however, regardless of the adopt there are certain guidelines that are in place to protect the parties involved. As previously some of the key elements that are required for adoptions to occur in any state today. Specifically, the termination of the relationship between the birth child and the biological p arent and the determination of the appropriateness of the future adoptive parents are requirements for adoptions to occur in any state (Harris, Carbone, & Teitelbaum 2010; Mabry & Kelly 2010). While issues may arise with the termination of the parental ri ghts of the biological parents it is more common to see issues arise when determining the fitness o f the adoptive parents (Harris et a l 2010). Around the same time that Massachusetts laid the groundwork for a formal adoption policy there was also the em ergence of private agencies to help facilitate the adoption process alongside the current public adoption agencies (Presser 2009). As time went on public and private adoption agencies have varied in the manner in which they facilitate the adoption process and the placement of children with families. State or public adoption agencies are held to the standards set forth by their jurisdiction as far as who can or cannot adopt and on what grounds someone can be denied the ability to
40 adopt (Mabry & Kelly 2010) Unlike state agencies, private adoption agencies have more discretionary power and t hey can be more selective in whom they permit to adopt; however there are some limitations While adoption policies laid the groundwork for families, primarily married c ouples, to adopt they did not necessarily lay the foundation for the amount of social acceptance these families would receive. This is surprising since social attitudes towards adoption were taken into consideration when determining where to place childre n and with what type of family, thus highlighting an interactive relationship between the overall acceptance of adoption and various adoptive families (Berebitsky 2006). Initially children were placed in two parent households which contained both a moth er and father who were married to one another. These placements were determined not only on the couple meeting the qualifications to adopt but also meeting the social qualifiers of conforming to traditional gender norms and wanting to uphold the nuclear f amily ideal (Berebitsky rospective parents based on what the biological children of the parents would have look ed like. This meant that a couple would have children matched to them that shared similar physical characteristics (i.e. skin tone, hair color, eye color, etc.) so that there would often be little question as to whether the children were theirs. Matching chi ldren based on what look like had strong foundations in the traditional biological constructs of family (Berebitsky 2006). Not only did this manner of matching ease the transition for adoptive parents and children but it also conformed to what society would consider to be a typical family. The policy to match children in this
41 manner was not something that met a set legal requ irement in the adoption process. H owever, it was a socially acceptable practice that helpe d introduce the idea of adoption to the general public in a manner that conformed to traditional conceptions of family and thus garnered more social support for these families (Berebitsky 2006). Often, the social acceptance of adoption seemed to be struct ured around the family type that was permitted to adopt. This can be seen in the transition from a preference for the nuclear family model to a more diverse composition of who is eligible to adopt over the last 100 years. At the onset of adoption in U.S. h istory it was socially acceptable for a married couple to adopt in order to provide children with a home that was considered to be an improvement over their previous life circumstances (i.e. poverty no home or no family). However, over time the type of f amily that was permitted to adopt shifted along with the degree of soc ial acceptance that these families received. The Social Origins of Adoption Policy Throughout the history of adoption within the U.S., the placement of children with an adoptive family w as shaped in large part by the social context as well as the legal system. The social considerations for who is or is not an acceptable adoptive parent tend to closely follow the changing definition of families and their growing acceptance. Married hetero sexual couples who matched the race and religious upbringing of the child(ren) they were seeking to adopt were the most socially acceptable and desirable placements (Berebitsky 2006). For a time, single women were able to adopt children as long as they co ntinued to conform to the traditional notions of motherhood. Once it was ascertained that it was not possible for single women to maintain these standards of motherhood, the consensus among adoption agencies was that these women would no
42 longer be able to adopt (Berebitsky 2006). This social policy is no longer enforced, but preference is still given to married heterosexual couples in the adoption process. This marked the beginning of an emerging pattern in which social attitudes had the potential to shap e who could adopt a child, regardless of what the law said. By no means did this mean that social attitudes broke the law with the placement of children, but they worked within the confines of it. For instance, where preference used to be given to matching adopters with children that closely resembled what their biological children may look like, there was an eventual shift towards interracial adoptions (Berebitsky 2006). Interracial adoptions primarily occurred when minority children were placed with whit e couples. This eventually led to a concern that minority children would not be raised with knowledge of their cultural background and the National Association of Black Social Workers to make a statement in 1972 that African American children should be pla ced first and foremost in homes with adopters of the same race (Berebitsky 2006). This did not change the legal stance on race in adoption proceedings, but it did alter how the agencies would place children. Today, there are fewer restrictions placed on i nterracial adoptions and they are often encouraged, especially for adopting children from outside of the United States. While relationship status and race were some of the first areas in which social support dictated who could or could not adopt, the sexual orientation of adopters would soon follow. The implications of the sexual orientation of adopters in the adoption process was impacted not only by what the law said, but also by what research and the current social attitudes indicated about gay men and lesbians as parents (Berebitsky 2006; Mabry & Kelly 2010). This recounting of the social history of
43 adoption illustrates that there is more to who can or cannot adopt than what the law may indicate. The type of children who are available to adop t and who may or may not be able to adopt them (i.e. matching a desirable adoptive parent with the most highly sought after child) is another aspect of the social history of adoption (Berebitsky, 2006) Beyond the more general history of adoption in the Un ited States, there are the specific social and legal policies that pertained to various adoptive families. This information not only explains how these adoptive families have reached the point that they are at today, but also the process that they went thr ough to get there and how that process was largely shaped by social and legal policy that ultimately paved t he way for new adoptive family structures to develop. Of the various types of families that can be formed through adoption the ones that will be di scussed for the purpose of this analysis will vary based on the relationship status of the adoptive parent(s), the racial/ethnic background of the children and parents, and the sexual orientation of the parents. There may be some crossover with regards to the different categories of adoptive families, but for the most part it is possible to track the development of adoptive families in the following order. Families that conformed as closely as possible to the traditional nucl ear family model were the more favored in adoption proceedings. As previously noted, placement had the most consistent social acceptance throughout U.S. history. Init ially these families conformed to more traditional gender norms with both a mother and father where the husband was the breadwinner and the wife was either a housewife or only worked part time so she was able to remain at home and take care of the children
44 (Berebitsky 2006). It was this structure that also made these families more desirable and considered to be more fit for adopting because even if the couple could not have children of their own they were still upholding the ideal family model as structured by society and wanting to maintain the child rearing element (Berebitsky 2006). Adoptive families that conformed to the more traditional nuclear family norm were often formed based on the desire of the couple to increase their family. Sometimes this mean t that they already had biological children of their own and wanted to adopt or they may have been seeking adoption as a means to have children because they could not have biological children of their own. From the outset of adoption through the 1950s infe rtility was considered to be the most socially acceptable reason for couples to seek adoption and these families were favored in the adoption process (Berebitsky 2006). As time went on and divorce legislation changed and remarriage became more popular the previous relationship. Single Parent Families Early on in the development of adoption polic ies there were exceptions made with regards to who could adopt. Under certain ci rcumstances single women were actually permitted to adopt children; however, the acceptance of these women being able to adopt was based on strict criteria that further illustrated how notions of family and parenthood were socially constructed. Couples see king to adopt were expected to conform to traditional gender norms and there was never really a fluctuation in whether or not they were able to adopt. On the other hand, discussions on the ability of single individuals to adopt were often centered on singl e women more than single men. This was due in part to traditional
45 concepts of gender, but also the fact that women were more likely than a man to independently seek out the adoption of a child as a means of having a family. Single was grounded more firmly in social acceptance than it was in legal precedent, which meant that it was often subject to change on a whim (Berebitsky 2006). Prior to the 1920s single women were permitted to adopt children by meeting the same criteria as a married couple, as well as two additional social criteria: conformity to traditional gender norms and maintaining a lack of sexuality (Berebitsky 2006). This meant that women who were single were expected to maintain a celibate lifestyle in which they did not date and they upheld the ideal that women should maintain the home and raise the children. There were instances in which the ideal single adoptive mother was held up as a model of motherhood for other women to mimic. Mary Hildreth was one of the women that was used to set such an example. She had adopted 10 children and was featured in a magazine article that depicted her as an exemplary model of motherhood and a good person for taking in so many children that she had no relation to (Berebitsky 2006). However, even while women like Ms. Hildreth were being held up as the ideal of what a mother should be there was a shift occurring in the attitudes towards these women being able to adopt over the course of the 1920s. Over the next thirty years single wom en were prohibited from adopting and by the 1950s researchers and professionals alike had taken a stance to outright deny single women access to adopting (Berebitsky 2006). The justification for this shift was that by single women adopting they were moving away from what had been socially acceptable behavior for women and it was only fit for a single woman to be a mother if she were a widow. These
46 shifts in attitudes toward single women only served to reinforce the notion that traditional nuclear families w ere the only acceptable placement for children. Today that stance on single individuals being able to adopt has changed. Not only has the social acceptability of single individuals increased, but it is also acceptable for both single women and single men t o adopt. While there still may be limitations on who can adopt based on other criteria (i.e. income, employment status, sexual orientation, etc.) single individuals are permitted to adopt in every state with only some limitations b ased on their living situ ation (Mabry & Kelly 2010). Overall, the social and legal stance on single individuals adopting has endured some ups and downs, but for the most part single individuals have just as much access to adopting as a married couple. Interracial Families A further analysis of the construction of families through adoption involves interracial families that follow the nuclear family model. These interracial families can vary in composition based on the racial/ethnic background of the adoptive parents as well a s the adoptive children. However, cases involving interracial adoption have more often than not focused on the adoption of children within the United States who are of a different ethnic background than their adoptive parents (Harris et al 2010). The so cial acceptance of couples adopting outside of their racial or ethnic group has had a similar history to that of single women being able to adopt as both were in a state of flux at one point and time. As most families were matched with a child based on the assumption that the child should closely resemble what a biological child of the couple would look like it would be highly unlikely that they would be matched with children of a different racial background than their own (Berebitsky 2006). In fact, most
47 agencies took a stance in their adoptive practices to only place children with families of the same racial/ethnic background, as well as the same religion (Harris et al 2010). However, towards the middle of the 20th century there was a shift towards a gr eater acceptance of interracial adoptions (Harris et al 2010). While the United States saw a growing acceptance for interracial adoptions there were still some instances in which same race adoptions were preferred. In 1972 the National Association of Bl ack Social Workers made a statement to the effect that they would only like to see African American children placed in African American households (Harris et al 2010). This was done in an effort to see that these children were raised in households that m aintained their cultural beliefs, but also so the children were not faced with some of the adverse effects that might have come from them being placed outside of the African American community (i.e. racism or the inability of their adoptive parents to unde rstand the transition that the children were going through). Another instance in which same race adoptions were preferred was seen within the Native American community. There had been notable instances in which Native American children were removed from t heir families, often without any justification, and placed with white families. The removal of these children not only disrupted their lives but it also placed them in households that most likely would not understand their cultural background and were ofte n far removed from any other members of their home community (Harris et al 2010). Based on the blatant disregard for the best interest of the children in removing them from their primary household the Indian Child Welfare Act was established in 1978 (Har ris et a l 2010; Mabry & Kelly 2010). The act required that if children were removed from their families that it was required that they would be
48 placed with other Native American families. This reduced the number of adoptions of Native America children b y white families and saw an increase in case law pertaining to how much power the act had over the placement of children within the Native American community. One of the more notable cases involved the birth of twin babies whose parents were of the Choctaw tribe ( Mississippi Band of Choctaw Indians v. Holyfield 1989) (Harris et al 2010). The children had been born off of tribal land and adopted with the consent of both biological parents by a white family. The adoption was challenged by the tribe stating that the children should have been placed with Native American family and the adoption was therefore not valid. Ultimately it was determined that the tribal court had jurisdiction over the adoption of the children. This case set the foundation for future case law and led states to make caveats to the ICWA where the biological parents have to be a part of a tribal community in order for the act to dictate where the children could be placed (Harris et al 2010; Mabry & Kelly 2010). Interracial adoption i n the U.S. has highlighted that there are certain constraints with regards to race and what is considered to be a socially acceptable family form. While acceptance for these adoptions has increased, as see n in transnational adoptions, what it ultimately co mes down to is what is in the best interest of the child. In an effort to uphold this principle the Multiethnic Placement Act was passed in 1994 that stipulated that children should not remain in the foster care system any longer than was necessary and tha t they could not prolong the stay of a child within the system based on an opposite race family seeking to adopt (Mabry & Kelly 2010). Therefore, a couple cannot be denied the right to adopt a child solely based on their racial/ethnic
49 background; however this does not mean that some adoption agencies may still have a preference for placing children in same race households (Mabry & Kelly 2010). Transnational Families Transnational families have shared some of the same struggles that interracial families within the U.S. have faced. While transnational families are often interracial families not all interracial families are transnational families. Transnational families pertain to the adoption of children from countries other than the United States and thes e families would be considered to be a more recent type of family that has been formed through adoption. Around the time that interracial adoptions were gaining public acceptance in the 1950s transnational adoptions were also increasing in popularity (Buck 2005). While there had been instances in which transnational adoptions occurred prior to the 1950s most were seen directly following the end of a major war and at some point adoption rates would drastically drop (Buck 2005). Transnational adoptions gain ed and maintained popularity following the Korean War where children were often orphaned and in need of new homes (Harris et al 2010). Impoverished living conditions and being orphaned were often the primary reasons why children were available for adopti on from other countries (Buck 2005). What makes transnational adoptions unique from the other forms of adoption discussed up to this point is that states typically have the ability to decide the qualifications for who can or cannot adopt within their juri sdictions; however with transnational adoptions not only do prospective parents need to meet state level qualifications for adopting, but they are also subject to the requirements of the country that they are seeking to adopt from (Bureau for Consular Aff airs 2011). In most cases, the country that the prospective parents are adopting from holds the majority of the decision making power in approving
50 the adoption. This means that these countries may have greater discretion regarding the race, income, sexual orientation, relationship status, etc. of adoptive parents than state or private agencies based in the U.S. might have. For example, only recently has China allowed single women to adopt children and when they are permitted to do so there are usually res trictions placed on the type of child they are able to adopt (Bureau for Consular Affairs 2011). Adoptions through other countries are protected and in part facilitated by the Hague Adoption Convention which went into effect in the U.S. in 2008 (Bureau of Consular Affairs 2011). While there are not many differences in adopting from a country that has Hague status and one that does not, there are certain protecti ons that are given when adopting from a Hague Convention country. The convention seeks to pro tect all parties involved (both legally and financially) and requires a deeper level of scrutiny into the adoption process to ensure that everyone involved is prepared for the transition. The Bureau for Consular Affairs keeps detailed records of how many c hildren are adopted from a given country and what the current status of adoption is based on the country of origin (i.e. whether or not the country of origin has Hague status). There are over 60 countries that have signed on to the Hague Convention; howeve r, not all of the countries that the Unite d States adopts from having signed on (Bureau for Consular Affairs 2011; Mabry & Kelly 2010). The countries that the U.S. ha ve adopted from the most has fluctuated ove r time due to changing policies; however the vast majority of children are adopted f rom China, Ethiopia, and Russia China has presented a unique case for why children have been available for transnational adoptions and what some of the unintended consequences of this may be.
51 In 2010 alone more than 3,400 children were adopted from China and while this number has decreased from where it was even five years ago China is still the country that the U.S. most frequently adopts from (Bureau for Consular Affairs 2011). The vast majority of children who h ave been available for adoption from China have been little boys in Chinese culture (Buck 2005). The adoption of these young girls by families outside of China is one of the reasons why they have seen such a stark difference in the ratio of men and women and in turn do not have enough women to marry the large number of eligible men (CNN January 11, 2010). China provides only one example of the impacts of transna tional adoption, but it has played an integral role in U.S. international adoption policy. In general, transnational adoptions have helped establish a greater level of acceptance for interracial adoptions and in turn interracial families; however, it also highlighted how social acceptance of interracial adoptions varies based on whether the child was adopted within the U.S. or from another country. Adoption b y Lesbian s and Gay Men Adoption and marriage seem to be closely linked, both legally and socially. Same sex marriage may prove to be an important factor in this project in terms of being a prerequisite for same sex couples to adopt but it is merely a piece of the puzzle (Berebitsky 2006; Mabry & Kelly 2010). Of greater importance for this analysis is a necessity to understand the social and legal variation that exists with regards to lesbians and gay men as adopters.
52 Social Attitudes Toward LG Adopters Nonet (1976) highlighted the need to take values and, arguably, attitudes into consideration when engaging in legal sociology. For that reason, attention must be paid to the varying perspectives that the general public hold toward lesbians and gay men adopting. Accounting for these perspectives can be seen in two parts: public opinion polls and researc h studies on lesbians and gay men as adopters. Same sex couples as parents are becoming more commonplace. In some cities, upwards of 65% of same s ex couples are raising children (Rodriguez & Gaitlin May 20, 2013). Whether these couples are becoming parent s through previous heterosexual relationships, ART, or adoption is not always known, but their increasing presence has also seen an increase in the attention that they receive. In 1999 the majority of Americans (57%) opposed gays being able to adopt and this number declined to 52% in 2006 (The Pew Forum July 31, 2012; Pew Research March 22, 2006). By 2008, there was more of an equal division in the country with 46% of Americans favoring gay adoption, while 48% opposed (The Pew Forum July 31, 2012). The most recent polls indicate that in 2012 there was a shift to seeing 52% of Americans favoring lesbians and gay men adopting in comparison to the 42% who were opposed (The Pew Forum July 31, 2012). While these polls do not distinguish between difference s in opinions regarding lesbians being able to adopt in comparison to gay men, this may not be as significant an issue as it once was. There may not be as much emphasis placed on the sex of the parents as there is on their ability to be an effective parent This belief may be exemplified does not impact parenting skills (Pew Research March 20, 2013).
53 Social science research that focuses on lesbians and gay men as adopters has looked at their lived experiences throughout the adoption process, opinions of social workers and other professionals who are central to the adoption process, and the implications of social science research on lesbians and gay men as parents for policy decisions (Patterson & Redding 1996; Ryan, Pearlmutter, & Groza 2004). While this research does not necessarily indicate an assessment or change in attitudes towards lesbians or gay men adopting, there is a growing trend in the research that seeks to assess the t reatment of lesbians and gay men within the adoption system This research also seeks to determine what can be done to facilitate a more inclusive and accepting environment within the adoption system (Fitzgerald 1999; Patterson 1994; Patterson & Redding 1996). Legal Stance on LG Adopters The legal and social precedent that has been established for adoptive families in the U.S. has primarily been shaped by the relationship status of the parents and the racial/ethnic backgrounds of the parties involved ( Berebitsky 2006; Mabry & Kelly 2010). To some extent all of these family types have conformed to the traditional gender norms of having either a single mother or a married mother and father who are looking to adopt a child. However, this does not take in to account how legal and social precedent has treated LG couples and individuals with regards to their ability to adopt children. Same sex couples and individuals have presented a unique case for studying how families are socially constructed. For instanc e, all of the legal documentation that pertains to the birth of a child and their subsequent adoption addresses parents through traditional notions of the nuclear family where there is one mother and one father. This
54 excludes the inclusion of same sex coup les as there would be a need to acknowledge that a child has more than one mother or father. In addition to needing legal documentation that acknowledges the status of the parents, there has also been a social and legal debate regarding whether or not LG couples and individuals should be allowed to adopt. Sexual orientation does not have the protected category that race and gender have when it comes to certain legal rights, adoption being one of them. As with the struggle for marriage equality there has also been a struggle for same sex couples to be able to adopt. Early cases of child custody involving an LG parent would often cite a parent (see Taylor v. Taylor A rk 2003). These arguments were often centered on beliefs that allowing LG individuals to adopt children would increase the likelihood of predation or abuse were used as justifications for to trying to prevent LG individuals from being able to adopt. All of these arguments against LG people adopting have been proven to be false. In fact, children raised in LG households are found to be just as well adjusted as children raised in heterosexual households and they are often more excepting of diverse family s ituations (Joslin & Minter 2009). In addition to these allegations being proven false, numerous professional organizations including the American Bar Association, American Medical Association, and National Association of Social Workers have issued stateme nts supporting the ability of LG parents to adopt (Joslin & Minter 2009). Over the course of the last twenty years there has been a shift in state level policies addressing LG couples and individuals ability to adopt. These changes may be
55 linked to the changes that began in the early 1990s surrounding the rights of same sex couples to marry (i.e. same sex marriages in Hawaii and the Defense of Marriage Act). This is only the initial phase in the growing acceptance of LG families being formed through adop tion; however, there are different approaches to how this can be accomplished. The types of adoptions available to the LG community will vary based on the relationship status of the petitioners. Adoptions by a single LG individual are not prohibited as eve ry state allows single individuals to adopt. This is a more recent development as up until almost two years ago Florida had a statu t e that prohibited petition to adopt sib lings that he had been fostering was decided in his favor, thus granting the petitioner legal parental status over the children (CNN Wire September 22, 2010). There are caveats in states like Utah where anyone in an unmarried cohabitating relationship can not adopt, but this is a unique circumstance (Human Rights Campaign January 18, 2011). It is when a LG couple wishes to adopt that the legal response changes. LG couples can adopt either through joint or second parent adoptions and their access to both i s dependent on the state in which they reside (National Center for Lesbian Rights 2011). This type of adoption allows bot h parties to adopt a child in a similar fashion to how two heterosexual individuals who are not in a relationship with one another wou ld be able to adopt a child (National Center for Lesbian Rights 2011). The availability of joint adoptions varies on a state by state basis; however, sixteen states and Washington D.C. allow same sex couples to jointly adopt. Michigan, Mississippi, and Ut ah all prohibit LG couples from jointly adopting, but the stance of
56 states that do not have statutory or judicial decisions on this issue is unclear (Human Rights Campaign August 2, 2013 ). This means that LG couples who want to adopt in those states will most likely need to petition to adopt and make their way through the judicial system if their petition is denied to determine whether or not they have a constitution al right to be able to jointly adopt. Second parent adoptions occur when there is a biologi cal connection between the children and one of the parties involved. This is most commonly seen in situations where the child was from a previous heterosexual relationship or was born during the present relationship with the assistance of some form of assi sted reproductive technology (i.e. surrogate, sperm donor, or egg donor). This type of adoption allows the other partner to adopt the child without negating the rights of the other parent; thus they both are viewed equally as parents in the eyes of the law (National Center for Lesbian Rights 2011). Second parent adoptions are allowed in twenty six states in addition to D.C., but they are prohibited in Mississippi, Utah, Kentucky, Nebraska, and Ohio (Human Rights Campaign January 18, 2011). As with joint adoptions, the states that have not determine d their stance on this issue will require p rospective adoptive parents to petition to adopt through the courts. The current state of LG parents being able to adopt in the U.S. is in a constant state of flux an d the international perspectives on LG couples are also somewhat varied. As noted with transnational adoptions these adoptions are granted based on the discretion of the country that the child is being adopted from. At present, there are fifteen countries that allow LG couples to jointly adopt and thirteen countries that allow second parent adoptions (International Lesbian, Gay, Bisexual, Trans, and Intersex
57 Association 2011). However, when taking the current state of LG adoption into consideration it is becoming more evident that families have moved beyond the social construct of the nuclear family to become more inclusive in their understanding of what families truly are. I mplications for the Future of Adoptive Families In reviewing the various forms of families that can be constructed through adoption and how our notions of legal and social acceptance of them have been socially constructed it is important to realize that these are not mutually exclusive categories. While single parent adoptive families were discussed in terms of how women have historically been treated it is also important to view these situations through the lens of intersectionality. This means that single parent s and interracial families are not mutually exclusive I t should be note d that the experiences of single individuals of varying racial backgrounds who are looking to adopt a child are going to vary based not only on their income, education level, and religious background, but also based on the region in which they reside. View ing these families through an intersectional perspective helps impacted not only their chances of adoption, but also how society at large views them. The analysis of ho w social constructionism has shaped the definition of families through adoption has highlighted some points of interest. First and foremost, what is discussed in this analysis is only a small portion of what can be researched with regards to social constru ctionism and adoption. There are far more detailed accounts of the legal and social experiences of these adoptive families that can be studied, including more personal accounts of current adoptive families. Secondly, there is a strong need for studying the se adoptive families from a variety of perspectives beyond the limited
58 scope that they were addressed here. This means taking into consideration social class, race, sexual orientation, educational attainment, regional differences, religion, and much more. Utilizing this perspective will help refine the analysis of social constructionism with regards to adoptive families, as well as provide a greater understanding of what these families are like more generally. Finally, the progression of adoptive families o ver the last 100 years has illustrated that their social construction is a dynamic process and LGBT families present the most recent example of how this method of explanation can be applied to adoption. This means that in the future it would be expected that there will be even more families formed through adoption and impacted by the ever changing social and legal policies. Families are dynamic and ever changing. There is no longer one definition that can be applied to explain how they are constructed a nd who is considered to be a family beyond the notion of love. The growth in acceptance and composition of adoptive families has shown how far this country has come, but there is still room to grow. While it is important to understand the legal history beh ind these changes, it is also important to understand the lived experiences of these families. This means talking not only to professionals, but the families themselves to learn about their experiences going through the adoption process and the impacts tha t it has had on their families. Not only will this provide an understanding of individual experiences, but also shared experiences between different types of adoptive families. These experiences can then be compared to legal records but also researched wit h regards to social attitudes towards various adoptive families in an effort to gain a more comprehensive picture of the social construction of family through adoption in the United States.
59 Adoption and Marriage: The Implications of Relationship Recognitio n on Adoptions The distinction between marriage and family is often indistinguishable So often, the definition of family is grounded in marriage and the presence of children where marriage precedes the introduction of the children. While single parenthood has gained greater visibility, two married adults with children are still considered to be the norm and the preferred composition for families ( Powell, Bolzandahl, Geist, & Steelman, 2010 ) However, while a two parent household is t he preferred composition in which to raise children (biological or adopted) there is often a distinction made that it is a two parent heterosexual household ( Powell et al., 2010 ). The legal and social preference to place children with a married couple is observed in the structuring of state laws and policies of adoption agencies ( SEE: The Social Origins of Adoption Policy ). The stipulation that a couple seeking to adopt be married may deter or prevent certain couples from adopting. Specifically, cohabitat ing couples and those who are unable to enter a legally recognized union may be denied the ability to pursue adoption outrigh t due to the status of their relationship in the eyes of the law. For same sex couples, the preference, and often the requirement, that a couple seeking to adopt is married is especially challenging. Same sex marriage has been a hotly debated topic within the United States since the early 1990s. Hawaii sparked this discussion in 1991 when gay and lesbian couples began a court battle t o see that they could be married (CNN, December 3, 1996). This process was ongoing through 1993 with the Baehr v. Lewin case which led to the ruling that restricting same sex couples from marrying was an unjustified discrimination and same sex marriages sh ould be permitted in Hawaii ( Baehr v. Mi i ke
60 1996) (Lambda Legal, 2014). Following the ruling in Baehr v. Miike a constitutional amendment passed restricting marriage to one man and one woman and in 1999 the final decision was handed down in the case stat ing that same sex marriages were no longer protected under Hawaiian law (Lambda Legal, 2014). The events that took place in Hawaii led the federal government to take specific actions regarding the legal recognition of marriages between two individuals of t he same sex. In 1996 President Clinton set the precedent for future discussions pertaining to same sex marriage by signing t he Defense of Marriage Act (DOMA) (H.R. 3396, 1996) There were t wo main components to the act: (1) that states did not have to recognize same sex unions or legal acknowledgement of relationships that were performed by other states and (2) that for the purposes of the federal government, that a marriage would be defined as a union between one man and one woman (H.R. 3396, 1996). DOMA effectively stated that the federal government would not recognize any same sex marriage and that states had the ability to determine whether they would permit same sex couples to marry in t heir jurisdiction or recognize same sex unions f r o m other states. Following the passage of DOMA, there was little movement in the policies pertaining to same s ex couples being able to marry until the 2000s. In 2004, Massachusetts became the first state to allow gay men and lesbians the ability to marry if they wanted to (Human Rights Campaign, February 19, 2014). Four years later, Connecticut became the second state to permit same sex couples to marry and so began the path for other states to extend marr iage benefits to same sex couples. As of December 2013, 17 states a llow same sex couples to marry and an additional 4 states extend some relationship recognition benefits to these couples (i.e. civil unions or
61 domestic partnerships) (Human Rights Campaign February 19, 2014). However, while advancements were being made on the state level, there was little discussion occurring on the federal level until the second term of the Obama administration. In February 2011, the Obama administration made a public st atement in which they stated that they could no longer defend DOMA ( The Huffington Post, February 23, 2011 ) While this was not meant to be a public de claration that the Obama administration was in support of same sex marriage, it did indicate that they we re opposed to a la w that placed unnecessary restrictions on the rights of same sex to public ly denounce DOMA was aptly timed with two cases that were pending decisions in the federal courts that dealt with issues pe rtaining to DOMA. The cases pertained to same sex couples gaining access to the federal ly funded FMLA benefits and inheritance laws following the death of a spouse. Spring of 2013 brought two landmark cases before the Supreme Court. One of the cases ( Holli ngsworth v Perry ) addressed the battle over same sex marriage and Proposition 8 that were ongoing in California. The other case ( United States v. Windsor ) addressed the constitutionality of DOMA, which was being challenged by the New York inheritance case that was being tried in 2011 when the Obama administration denounced DOMA. The a rguments were heard by the Supreme Court in March and after three months of deliberation on June 2013, the Supreme Court determined that DOMA was unconstitutional and could no longer be enforced. This effectively eliminated any federal opposition to recognizing same sex marriages and affording the same federal level benefits that opposite sex couples were entitled to. decision struck down a federal p olicy that had been in place for almost 20 years and
62 opened the door to further discussions on same sex marriage. This was most noticeable in the four states that legalized same sex marriages in their jurisdiction decision. The importance of marriage being an available option for same sex couples who wish to enter into them and the federal government acknowledging the legality of these unions goes beyond whether or not someone can marry. Legal recognition of intima te relationships provides a sense of legitimacy for these relationships in the eyes of the law and the general public. affection for a romantic interest and the first step in forming a family. As t he preference in most states is to place children in homes with married couples, an increase in the number of states that permit same sex couples has potentially shaped the ability of these couples to adopt. Marriage offers gay and lesbian couples the same legitimacy that it offers opposite sex couples and it prevents them from being denied the option to adopt solely based on their relationship status. Thus, the interaction between relationship status and ability to adopt should be explored further, especi ally as this pertains to same sex couples seeking to adopt. The Sociology of Law: Theoretical Frameworks Much of the discussion thus far has addressed that the legal system and society have both had impacts on modern adoption policy. However, the importa nce of taking both into consideration when discussing a particular issue within family studies may not be apparent. The field of Sociology of L aw provides a means through which to consider both the legal and the social perspectives while still giving consi deration to the respective differences between the two fields The following is a brief overview of the Sociology of Law and its utility for this project.
63 Sociology of Law, as a field of inquiry, is relatively new. While its origins can be traced back to the late 1800s, it was the works of Timasheff (1937) and his contemporaries in the 1930s that sparked the interest in the field and assisted in its growth from the 1950s on (Trevino 2007). Alternatively, jurisprudence has been a part of the legal system s ince its inception. While many scholars have questioned whether S ociology of L aw is merely a renaming of jurisprudence, others have argued that this is not the case (Timasheff 1937). Jurisprudence is the study of law, its purpose, processes, and the role that various types of law play in structuring a legal system. This field of study focuses specifically on legal norms in a historical, comparative, or timeless manner (Timasheff 1937). The Sociology of Law takes into consideration legal norms, but it als o opens the doors to discussion of human behavior, cultural norms, and the interaction between the law and social attitudes (Timasheff 1937). It should not try to replace jurisprudence, but work with it to establish a comprehensive understanding of law an d society (Timasheff 1937). Additionally, incorporating sociological inquiry into legal studies allows for the study of power and ethics, as they can be observed by an outside party. This offers a unique perspective through which underrepresented populati ons can be studied in relation to their interactions with the legal system. Ultimate ly, the Sociology of Law carrie s the heavy burden of investigating the linkages between the legal system and society, but it also can shed light on an issue from multiple p erspectives (Trevino 2008). It fills a void that is made by only looking at an issue from a legal or social perspective The ability to study and issue from multiple angles makes the Sociology of
64 Law a valuable lens through which to study the state of gay men and lesbians as adopters (Trevino 2008). Theoretical Perspectives on the Sociology of Law Some of the founding fathers of Sociology have commented, to some degree, on the Sociology of Law. Writings by Marx, Weber, and Durkheim have chosen a lens through which to view the function of law in society; however, there are theoretical frameworks that have developed beyond the early foundations of the Sociology of Law. To highlight the variation in theoretical perspectives that have been utilized in discussions of sociology and law, four differing paradigms will be discussed. Structural functional, beh avioral, jurisprudential, and conflict theories have all had their supporters and detractors over the course of the past 80 years, but they each highlight a particular approach to the study of Sociology of Law (Timasheff 1937; Trevino 2007; Trevino 2008 ). Str uctural functional perspectives The main tenants of this paradigm are that an overarching system is comprised of numerous interconnected parts that work to meet the needs of the entire system and maintain balance (Trevino 2007). The application of th is paradigm to the legal system is evident i n the number of parts that make up a functioning legal system. Each part has a given set of goals and parameters that they must operate within and if they do not, then the legal system becomes dysfunctional and does not maintain its responsibilities. Talcott Parsons wrote about the intersections of sociology and law (Parsons 1980). He noted that the law is an institution and that it should be studied accordingly. This means understanding the purpose of the law and how it is meant to maintain social control (Parsons 1980). Other authors from a structural functionalist perspective have
65 advocated for larger social interests and the interests of groups to be taken into consideration when determining the focus an d scope of responsibility that the legal system has in acknowledging the diversity of the population (Cowan 1980; Pound 1980). Most of the theoretical work on the functionalist perspective of S ociology of L aw was prominent in the 1980s and 90s (Trevino 2007). While there may still be applications of structural functionalist thought today, it is not as common as it once was. Behavioral perspectives Donald Black has made his mark on the study of law within sociology. He is best known for his classic text The Behavior of Law, in which he introduced his paradigm of pure sociology (Trevino 2007). According to this paradigm, there are certain behavioral patterns that the law follows (Black 1972). This means that even if it varies and fluctuates over time, that it does so in a predictable manner (Black 1972). A behavioral model of the law has been tested and yielded mixed results since its inception in the 1970s. Black (1972) believed that the focus of legal sociology should be the juxtaposition of the legal reality and the legal ideal that some would strive for. He cautioned against comparing what is currently possible in the legal system and what it is that society would like to see happen, but does not have a foundation in leg islation or case law (Black 1972). The belief in a pure S ociology of L aw is grounded in a positivist philosophy. Based on this perspective, there are three basic guidelines: (1) only what is known and written into law can be studied, (2) and scientific co nclusion must be grounded in empirical evidence, and (3) values are not empirical and cannot be a part of any analysis (Black 1972). One of the most significant statements that Black made concerning the division of sociology and the law was,
66 al conflict arises only when the sociologist makes policy recommendations (Black 1972). If this is the case, then how do policy changes occur and what is the point o f social science research as a support of legal proceedings and policy changes? than forty years and it will most likely continue to hold its place as a major theoretica l approach within the sociology of law. Jurisprudential perspectives Philippe Nonet (1976) and his contemporaries ha ve been criticized for wanting to look at the social norms and processes that have lead society to hold a particular ideal about the legal system. The approach of these legal scholars has been to move towards a normative model of legal theory that is in ivist pure S ociology of L aw (Nonet 1976). According to Nonet (1976), to engage in pure S ociology of L aw would be to ignore the foundations of sociological inquiry and also result in an incomplete understanding of the legal system. He further states that t o engage in pure S ociology of L aw would be promoting ignorance (Nonet 1976). Specifically, it would encourage ignore the rules, principles, and policies that constitu te law, as understood by all pure 1976). Nonet is heavy handed in his criticisms of pure sociology, but, in doing so, he highlights the need to consider the role of values in society and the ind fault in this, so much of sociological inquiry touches on values and aspects of society that may not be normative in order to shed light on issues of inequality.
67 As an alternative to pure sociology, Nonet (1976) proposes jurisprudential sociology. He n otes that it is impossible to give full consideration to legal matters without also considering the values and norms that are associated with them (Nonet 1976; Nonet & Selznick 2001). Sociology of L aw should highlight the problems in society, be receptiv e to ideas and progress, and the study of law (Nonet 1976). This approach to the S ociology of L aw allows for evaluation and an acknowledgement of ethics, politics, and purpose of the law. Conflict perspectives Much like a general conflict theory, S ociolo gy of L aw from a conflict perspective implies that the law is formulated to benefit those who are in power (Trevino 2007). This imbalance in power also serves as a means to maintain a particular power structure, but also to see that the law is reflective of the ideals of a narrow majority. Often, those who are in positions of political power are also of a higher social class (Trevino 2007). The delineation of social class and power serves to create a larger divide between segments of society and may even lead to the alienation of some (Trevino 2007). While conflict perspectives still have a place within discussions of law and society, they are not the preeminent focus of theoretical work within the Sociology of L aw today. These are only four examples of t heoretical frameworks that have been applied to the Sociology of Law. As with any subfield within the discipline, there has been an expansion of theories that address various aspects of law and society. This can be seen in the application of theories such as critical legal studies, critical race theory, and feminist perspectives on jurisprudence to the sociological study of the legal system. However, for the purpose of this research design, the focus will be on applying a
68 normative perspective of the Sociol ogy of Law to the study of lesbians and gay men as adopters. A Comprehensive Approach to the Sociology of Law perspective on law will lay the theoretical foundation. Nonet (1976) stated that legal sociology needed to move beyond the positivist perspective and did not need to be dependent on only quantifiable information. Instead, Nonet (1976) proposed that there were several necessary components to the S ociology of L aw (1) that it take s into consideration what may impact the implementation of the law (i.e. legal system, politics, history, and values), (2) that there must be some purpose for the projects that provide a contribution to policy, (3) there must be an understanding of the legal system, its jargon, and its rules, and (4) the study of the legal system should be linked to evaluation and policy analysis (Nonet 1976; Trevino 2008). This normative approach to the S ociology of L aw appears to be the most comprehensive means of a nalyzing the impacts of a specific area of specialization within the legal system. jurisprudence system is seen in the interaction between values and norms in the legal system (Nonet 1976; Nonet & Selznick 2001). More specifically, how are the values of a population integrated into the legal system and how does the legal system determine and define what is normative? Durkheim was one of the earliest sociologists to bring value s and norms to the field to study, but later sociologists highlighted why there was a need to balance values and norms and how to do so. Taking culture into consideration within the legal system occurred as societies evolved and a greater cultural diversit y emerged (Deflem
6 9 of values and norms illustrates that in a democratic society, the legal system can fulfill its purpose by setting legal precedents that mediate the range of values hel d by its members (Deflem 2008). Without this mediation, it is no longer truly a democratic society and it runs the risk of favoring a particular portion of the population and ignoring another. The balance between the values that U.S. society holds and the norms that are set forth in the legal system is a fine one. Family law is one area of the legal system that provides a multitude of examples of attempts to maintain this balance. This area of l aw covers a broad spectrum of topics ranging from reproductive rights, marriage, divorce, adoption, custody, support, and visitation. Family Law may be studied within the S ociology of L aw, but it is not synonymous with it. Within Family Law, balancing nor ms and values can be observed in the moral debates that arise over the legal decisions surrounding abortion and same sex marriage, as well as the less prominent discussions surrounding gays and lesbians adopting (Deflem 2008). As Family Law is not often e xplored through the lens of the Sociology of Law, this project presents a unique perspective on two growing fields of inquiry. Adoption: Social Context, Legal Policies, and The Sociology of Law The previous review of literature illustrates that adoption has been studied from both the social and legal perspectives. While each has played a role in the outcomes of who has been able to adopt, there has been little comparison of the interaction that m ay occur between them. So often, fields of study maintain a level of separation that may lead to similar lines of research occurring, but without much crossover or consideration given to the contribution that other fields may have to offer. The Sociology o f Law, as
70 outlined by Nonet (1976), advocates for moving beyond the study of law and taking into consideration the entirety of an issue and how this may impa ct the outcomes that we see. Looking strictly at what the law says about who can or cannot adopt ov erlooks the impact of social context, just as strictly taking into consideration the social context, as it relates to adoption, overlooks the contribution that the law has to offer. By taking to ognition to both sides of the equation, the social and the legal, and fully investigate the access that lesbians and gay couples have to adopting in a way that has not been done before. Essentially, Nonet (1976) is arguing that an intersectional approach s hould be taken toward issues that have traditionally been considered to be strictly part of the legal field. Thus, this project intends to bridge the gap between legal and social research on same sex couples as prospective adopters through the adoption of Law and an intersectional approach to the research design.
71 CHAPTER 3 RESEARCH DESIGN This project s ought to explore current perspectives on adoption by lesbians and gay men. While federal guidelines play ed a role in this projec t, the analyses were conducted on the state level, with the role of the federal level data to be determined at a later date. The exploration of individual state perspectives on lesbian and gay men as adopters was facilitated by constructing a database of i nformation for each state pertaining to their adoption laws and demographics. Utilizi ng this database, a typology was established using adoption and same sex marriage laws. Four cases studies were conducted based on their adherence to the typology. States were selected based on their location in specific cells within the typology that address ed the intersections of adoption and same sex marriage laws. A detailed explanation of the construction of the database, the construction of the typology, utility of ca se studies, and the process involved in implementing the case studies are addressed below. Construction of the Database Although information exists regarding access to adoption on the state and federal levels, there does not exist a comprehensive resource that consolidates this information for ease of access and comparison A v ari ety of organizations and researchers have created resources indicating whether or not joint or second parent adoptions are available to lesbian and gay male couples in a given sta te, but they often do not cite a source, how the decision was reached (i.e. case law or statute), or if access to adoption is in a state of flux or constant. Additional information regarding the general social outlook toward adoption by lesbian and gay male couples is often linked to specific
72 been For these reasons, I have collected information that is relevant to the historical context and current discussions surrounding lesbians and gay male couples adopting. This information has been collected for all fifty states and been compiled into a database that will be used for future analy ses. This database was developed to collect data that was used to create the most comprehensive picture of the status of lesbian and gay male couples being able to adopt in a state. Essentially, this information was used to create state profiles that woul d become the impetus for future research. With this in mind, the following information was collected: Region Each state was assigned to one of the four regions indicated by the U.S. Census (i.e. West Midwest, Northeast, and South ). Regional assignment wa s important for making comparisons between states that are from similar geographical areas. Each region can be broken down even further to account for more precise comparisons (i.e. New England within the Northeast ). General Population Size Populations for each state were collected from the 2010 census data. While current estimates were available from the Census Bureau, additional statistics that wer e used throughout the database are only available from the 2010 census. Thus, for the purposes of being consi stent, 2010 populat ion data wa s used. LG Population Size This information was collected from the 2010 census and compiled into state population profil es by The Williams Institute (Gates & Cooke 2010) As Census data
73 was collected in terms of household c omposition, the available state level data pertain ed specifically to same sex couples. Specifically, the number of same sex couples that we re present in a state and the number of same sex couples per 1,000 households we re recorded in the database. While ha ving an idea of how many same sex couples live in a given state wa s useful, this does tend to exclude single lesbians and gay men from being counted. For this reason, a greater emphasis was placed on couples as these we re the data that we re readily availab le and most closely related to the subject matter being investigated LG Parenting Data The information that was collected for this portion of the database was also da ta. Data on LG parenting included the number of LG couples that we re raising their own children and the percentage of LG couples that we re raising their own children. The children are never married, children under 18 who are sons or daughters of one partner or spouse by birth, marriage (stepchild), or (Gates & Cooke 2010 p.3 ). This definition does not make it possible to distinguish between biological or adoptive children, but it does give us insig ht into the number of couples and children who may be impacted by adoption. As with the overall estimates of the LG population, these percentages pertain strictly to same sex couples raising children and do not address single LG parents. Political Affiliat ions The political outlook in a state may have an impact on lesbians and gay men adopting. For this reason, the voter turnout for the 2012 President Election was used as a marker of political affiliation. This information was retrieved from the New York T
74 closing accounts of the election and includes a breakdown of the percentage of voters who voted republican or democrat and whether the Electoral College final count was for a republican or democratic president (New York Times November 29, 2012) Whi le the voter registration for each state may have been a more accurate representation, it would not have been possible to obtain data for all fifty states that were collected at the same time period in reference to voter registration. Additionally, it coul d be argued that using actual voting data wa s the best means of gathering this information because it implie d that these are the individuals who are actively participating in decision making processes and would have a vested interest in the status of lesbi ans and gay men being able to adopt. Religious Faiths Religion wa s also a strong component for discussions surrounding sexual orientation and parenting. While it was not possible to imply a causal relationship based on the religious faiths, having a gener al understanding of the religious faiths that we re predominate in a state provide d a deeper understanding to the environment that exists toward same sex couples and parents. Th ese data w ere gathered from a Pew Research study (Lugo 2008) Information about number of people within the state population affiliated with each of the following religious faith s Evangelical Protestant, Mainline Protestant, Historically Black Protestant, Catholic, Mormon, Jewish, Muslim, Buddhist, Other, and Unaffiliated was collect ed from this study The division of the Protestant faiths into specific denominations may provide insight into the social context for past and present stances on same sex couples adopting and marrying.
75 Racial Composition This portion of the database look ed at the self reported racial composition of the population of each state. While race wa s not necessarily an indicator of the reception that same sex couples receive, it may speak to the experiences that occur when sexual orientation and race are both tak en into consideration (i.e. the experiences of a White lesbian may differ from those of a Black or Latino lesbian, especially in different parts of the country). This information was also retrieved from the 2010 census data and the racial categories includ ed: White, Black & African American, American Indian & Alaskan Native, Asian, Native Hawaiian & Pacific Islander, and Other Information was also collected on whether individuals identified as being of Hispanic descent. Adoption Statutes State statutes p ertaining to adoption address ed who c ould adopt, who c ould be adopted, and what need ed to happen for adoptions to occur ( Child Welfare Information Gateway January 2012 ). For the purpose of this database, the portion of the statute pertaining to who c ould adopt w as recorded. This information include d the citation for referencing the statutes at a later date and the exact wording of the legislation. It was important to be able to follow the path of a statute, but it was also necessary to have the original so urce to ensure that it wa s being correctly interpreted and applied. Explicit Mention of Sexual Orientation or Gender in Statu te Whether or not the sexual preference or gender of the partners looking to adopt wa s taken into consideration in the adoption process was an important distinction. For this reason, statutes were reviewed to determine whether or not they explicitly mentioned homosexuality or same gender relationships. This distinguishe d overt exemptions from adopting based on sexual orientation fr om those who we re more
76 subtle (i.e. only married couples c ould adopt, but you c ould only be married if you are in an opposite sex relationship). Status of L esbians and Gay Male Adopters This portion of the database pertained to three categories of adopter s: single lesbians and gay men, lesbians and gay men who were looking to jointly adopt, and lesbians and gay men who were looking to obtain a second parent adoption. Unless explicitly noted, the ability of single lesbians and gay men to adopt was derived f rom state adoption statutes. As it may not be required that a single individual who wa s looking to adopt disclose their sexual orientation, it may not be readily apparent that a prospective adopter wa s not heterosexual. The ability of same sex couples to a dopt jointly or through a second parent adoption was collected from the issue maps create d by The Human Rights Campaign ( August 2, 2013; August 3, 2013 ) and the work of Appell (2012). Location of Adoption Decision This portion of the database pertain ed to where the decision was made concerning whether or not lesbians and gay men could adopt. Specifically, we re the adoptions permitted or banned by statute, case law, or is it unclear ? For the decision to be rooted in statute typically mean t that legislation was voted on and passed to see policy enacted. This wa s i n comparison to decisions that we re gro unded in case law and a ruling was passed down based on a specific case. Status of Relationship Recogni tion for Lesbians and Gay Men Data i n this section were primarily focused on same marriage; however, in the event that marriage was not an option, data were also collected on whether or not states permitted same sex couples to enter into civil unions
77 or domestic partne rships. Access to same sex marriage was broken down based on it being permitted or banned. Data for this section were obtained from state fact sheets that were compiled by The Human Rights Campaign ( January 14, 2014 ; January 14, 2014 ) and the National Coun cil on Lesbian Rights ( 2011 ). A Typology of States Based on LG Adoption and Marriage Laws Research designs often rely on the construction of categories or groupings to define the parameters of a phenomenon of interest. One strategy for constructing categor ies is through the use of typologies. Typologies are a useful tool for researchers to use to organize information with a wide range of variation (Collier et al 2009; Mjoset 2009). The construction of a typology is meant to be a reflection of reality and is variable based on the research question (Elman 2009). This means that even though the same information may be used in two studies, the framing of the research question will determine the construction of the typologies (Elman 2009). While typologies are a means of organizing information, there needs to be a justification behind their construction. For this reason, typologies are constructed to achieve the goals of describing, classifying, or explaining phenomenon. Often, an explanatory typology is als o descriptive and classificatory (Elman 2009). Regardless of the goal of a typology, it is not meant to be complete and will continue to evolve and be refined throughout the life of the research project (Elman 2009). Typologies are broken down based on their overarching concept, row and column variables, the matrix, and the types (Collier et al 2009; Collier, Laporte, and Seawright 2012). The overarching concept is what the typology is trying to measure. The row and column variables correspond to the labels that are used to construct the types and create the matrix (Collier et al 2012). The matrix contains a given number of
78 with matrix and the row and column variables (Collier et al 2012). In creating the typology, new categorical variables are constructed and can be used in both qualitative and quantitative analyses (Collier et al 2009; Collier et al 2012). The utility in constructing a typology of states based on their stance on adoption and same sex marriage is in organizing a large amount of information in manner that is justifiable and facilitates the implementation of the case study design (Collier et al 2009). While the focus of this study wa s on the legal status of treatment of gay men and lesbians as adopters, marriage wa s often a key requirement for anyone to be approved as a potential adoptive parent ( Child Welfare Information Gateway January 2013 ; Mabry & Kelly 2010 ). This typology empl oyed a 2x3 cross tabulation of the intersection of state policies on LG couples adopting and marrying. The overarching concepts being measured we re the variation in adoption policies for lesbian and gay adopters in relation to same sex marriage policies. The row variables we re state policies concerning adoption. These we re broken down into the distinct variables of yes, no, and unclear to avoid overlap. Any state that explicitly allow ed same sex couples to adopt was distinctio n wa s being made regarding the type of adoption that may have occurred (i.e. joint or second parent). A state that expressly prohibit ed same sex couples from adopting fell within the wa s unclear or undecided in their policy on same se x couples adopting then they fell wa s the most basic breakdown of adoption policies and in th e execution of the case studies the variation between these states was explored further.
79 Like the row adoption variables, a simila r breakdown was seen in the column variables pertaining to same sex marriage. States that allow ed same sex couples to marry were sex couples from marrying were include e wa s ambivalent or ha d not yet reached a decision on same sex marriage then it was create d six types: adoption yes/marriage yes, adoption yes/marriage no, adoption no/marriage yes, adoption no/marriage no, adoption unclear/marriage yes, and adoption unclear/marriage no. As with adoption, there wa s a noticeable amount of variation from state to state regarding relationship recognition and the variables in this cross tabulation we re a basic overview and more detail was achieved in the analysis. A review of the states that fit into each type was conducted to determine if there we re any commonalitie s between the states in a given cell. This review address ed each socioeconomic status, proportion of the population that is gay or lesbian, and where the states fa ll in terms of other relevant social issues (i.e. sa me sex marriage and abortion). Case Study Methods A case study is an in depth investigation of a single unit (i.e. a state) (Gerring 2004). In general, case studies are not a commonly used research desi gn (Gerring 2004). Case study research designs are beneficial for explaining a phenomenon within its context and being very focused (Yin 2003). These designs take into consideration interactions between a range of variables and there is a strong emphasi s on temporality (Yin 2003). Context is an extensive chunk of what occurs in the execution of a case study, which requires rich data that comes from a multitude of sources (Yin 2003). Case studies also provide the opportunity to test or construct theory (George & Bennett
80 2005; Yin 2003). They can situate themselves within a research design where they explore, describe, or explain events (Kaarbo & Beasley 1999; Yin 2003). There is no one perfect case study, but in conducting a case study, it is possibl e for a design to be selected that truly taps at what the research is interested in. How Are Case Studies Conducted? Case studies are completed in three phases (George & Bennett 2005). Phase one is where the researcher outlines what the case study will en tail. This means establishing the objectives, design, and conceptualization for the project (George & Bennett 2005). The initial concepts seeking to be studied should be fully conceptualized prior to the start of the case study (Yin 2003). This is to hel p ensure that the researcher is explicit in what it is that they are seeking to investigate and are able to determine the scope of the literature review that will need to be conducted (Yin 2003). After determining the concept(s) that are to be studied, th e researcher should then determine what the unit of analysis for the case study will be. The unit of analysis can be a state, an organization, a policy, or any other phenomenon that the researcher may be interested in investigating, as long as they are exp licit in stating their selection criteria and their purpose for selecting each unit (Yin 2003). Once the unit of analysis has been determined, the development of the case study will vary based on whether this is a small N, qualitative, or ethnographic des ign (Gerring 2004). The design of the case study determines what will occur once all the data have b een gathered. For instance, a qualitative case study may look for patterns within the data to then formulate an explanation for what is occurring (i.e. cur rent debates regarding abortion rights and Roe v. Wade and why this is an ongoing discussion). Researchers should also take into consideration how their cases are
81 selected. This means checking that the criteria for selection are explicit, especially in cir cumstances where there are multiple potential cases to choose from (Seawright & Gerring 2008). Phase two of the case study is the actual implementation of the research design (George & Bennett 2005). After the framework and design for the case study hav e been determined, the carrying out of the case study should flow naturally. This will be facilitated by keeping the analysis structured and focused so the researcher is not distracted by irrelevant data (George & Bennett 2005). Maintaining structure and focus in a design is also facilitated by one researcher designing and implementing the case study (George & Bennett 2005). This focus must be maintained throughout the data collection and organizational process to ensure that only relevant information is used in the analysis. This also helps in eliminating alternative explanations for what is observed over the course of the case study (George & Bennett, 2005). Phase three of the case study is the analysis (George & Bennett 2005). Because the designs can vary, this phase is more broadly focused on looking for patterns within the cases. This may mean looking for associations or causal paths, types, or interactions that may have led to a particular outcome/result (George & Be nnett 2005). Process tracing should be used when looking at cases that occur over time to determine if there are areas in the data that are weak or missing as this may impact the results (George & Bennett 2005). It would also be important to be able to e xplain each case independently and then collectively determine if any of the cases were outliers. Another area to focus on is whether or not the case studies can be used to develop
82 theories that can later be tested and generalized to a larger body of resea rch (George & Bennett 2005). The Utility of Case Studies Unlike larger scale studies, case studies provide the opportunity for in depth investigation of specific phenomenon. Not every study lends itself to this level of inspection; however, for those tha t it does, there is the opportunity to determine whether a chain of events is more impactful than the key players that are involved or if the location of a decision makes a difference in the events that follow. For instance, a brief review of same sex marr iage in California would i ndicate that there was an extended time line of events to see same sex marriages legalized; however, what that review may overlook are the motivations behind the events that occurred and the uniqueness of the chain of events that led up to the final outcome. Case studies provide the opportunity to fl u sh out the minutest details about something to determine whether or not they play an integral role in an outcome. Additionally, case studies provide researchers with the means and oppo rtunity through which they can obtain a comprehensive understanding of whatever it may be that they are investigating and utilize what is learned for future case studies and research (i.e. are the patterns observed in one setting similar to those in anothe r setting and what might those similarities and/or differences imply?). Limitations to Case Study Designs Case studies have primarily been used in political science, but the reception of this research design has not always been a warm one. It has been suggested that case studies are one of the weaker research designs because they are observational and, in comparison to their counterparts, they are not as rigorous (Van Evera 1997). However, while there are some who do not believe that case studies are a s useful as other
83 methods, other researchers have pointed out that case studies are a stepping stone in the research process and they are not meant to be the end point (Van Evera 1997). Another criticism of case studies is that they are not generalizable (Van Evera 1997). In the instance where only one case is studied then this criticism has merit; however, if more than one case is studied, then this criticism loses weight (Van Evera 1997). There are safe guards that can be put into place during the resea rch process that can protect against some of the criticism of this method and help ensure that it is being as methodologically rigorous as possible. Selection of States for Individual Review From two cells in the typology, two state s were selected to repr esent the best example of states with a given policy on lesbians and gay men adopting. The purpose for selecting two cells from a given category wa s to provide for maximum variation within the cases. Additionally, one of the purposes of this project wa s to gain a greater understanding of adoption laws and this c ould not be achieved without taking into consideration the full spectrum of adoption laws. The determination of which state s were selected was informed by the review of the data in the general state database and in the construction of the state typologies. Execution of Case Studies of Individual States In conducting each case study, the first step, following the selection of the five states to be reviewed, wa s to gather the necessary data from Januar y 1990 to December 2013. Preliminary data already exist ed on each state based on the demographic information that was collected during the construction of the typologies. As these we re state level analyses, the data used in each case study only c a me from the state level (i.e. state newspapers, organizations, etc.). While there may have be en
84 national level data that wa s relevant to the analysis it c ould not be directly used in the analyses. However, this data was collected, as national level information may have factor ed into the overall analysis, but to what extent was as of yet un determined. For instance, it may have be en a change in federal policy that led to a change in state policies or the actions of national level organizations sparked action in a spe cific state and this wa s important to the larger analysis, even though it occurred at the national level. The national level data collected was an extension of the state level data detailed in the table below (i.e. Federal policies on LG adoption, national level special interest groups, and national media coverage). Based on the normative approach advocated by Philippe Nonet (1976), data was collected for each state that reflect ed the legal system, politics, history, and values of norms as they pertain ed to adoption by lesbians and gay men in the United States. This mean t that information on the present adoption statu t es and case law and stance on same sex marriage was collected to reflect the legal systems response to this type of adoption and relationship recognition. Information on lawyers, judges, government officials, and special interests groups that were key players in cases, legislative processes, or public advocates for the various sides of the LG adopter debate was also collected History wa s addres sed in covering the timeline of adoption in a given state from January 1990 to December 2013 and situating the discussion in its historical context (i.e. comparison of treatment of LG adopters in comparison to other types of adoptive parents). Finally, nor ms and values were measured in surveys of public opinion on lesbians and gay men adopting. There may have also be en instances where news coverage of specific cases or legislation were reflective of public discourse and
85 opinion on a given event. The type of data and its inclusion was determined on a case by case basis. Efforts were made to ensure that between states, comparable data wa s collected. Table 3 1. Data to be collected for case studies. Data Item What wa s to be included? Anticipated Source(s) Demographics Region; Population Size; Portion of the Population that is Lesbian/Gay; Political Affiliations; Religious Affiliations Census; State Website Adoption Statutes Initial Statu t e; Changes to Statute; Current Statute; Political Supports/Detractors of Statu t e; Funding of Legislative Changes; Results of Votes on Adoption by LG State Records Adoption Cases Case history pertaining to adoption; Outcomes of Cases; Present Case that establishes Case Law; Research Used; Expert Testimon y State Records; Legal Search Engines Stance on Same Sex Marriage Current Position on Same Sex Marriage; Alternative Unions Offered?; Supporters/Opposition to SSM; Discussion in relations to adoption State Records; Legal Search Engines Key Players Lawyers Who tries cases?; Public Statements State Records; Case Transcripts Judges How did they get into office?; Support or Opposed LG Adoption; Backers of legislation; Publicly Stated their Stance on LG Adoption Government Officials Support or Opposed LG Adoption; Backers of legislation; Publicly Stated their Stance on LG Adoption News Archives; State Records Data Item What is to be included? Anticipated Source(s) Special Interest Groups Who are they?; Are they independent or a part of a larger organization?; Stance on LG Adoption; Public Attention Garnered; Stance on LG Adoption; Policy Statements Websites; News Archives Media Coverage New s papers/Online News; What do they say?; How many are there?; Frequency (Onl y during cases etc. or constant discussions occurring?) All Media must be from State/Local Sources. Lexus Nexus and Google will be used to search for data. Public Opinion For or Against LG Adoption?; Personal Statements (Op Eds and Blogs); Comments to News Coverage Exit Polls for Voting; Gallup; GSS
86 Once the data was gathered, they were organized in a database that wa s constructed for each state. As a variety of data sources were used, an Excel file was used to catalog the data and hardcopies of all d ata were retained. Analysis of Case Studies The analysis of the data collected for each state varied based on the data obtained. While the approach to the analyses was the same, there were different gaps in the data that need ed to be accounted for. Also, because each state represents a different type of stance of lesbians and gay men adopting, the case study was more relevant for comparisons to similar states. These case studies establish ed the basis for future case studies that could compare the trajector and gay men adopting. An additional part of this analysis determine d whether there we re similarities between the paths that the states in each typology took to reach their current policy. While the details of the analys e s varied there we re steps that were taken to ensure that the analysis wa s thorough and well thought out. In conducting the analyses, each conclusion would be tentative until the researcher wa s relatively certain that they ha d eliminated the alt ernative ex planations for what occurred (George & Bennett 2005). This was considered an integral check in the analysis process that help ed the research ensure that the focus of each piece of data wa s the same and that they were not comparing incomparable data source s (i.e. state vs. federal level data). It wa s also important to vet data sources for bias on the part of the authors (George & Bennett 2005). This was especially important in historical accounts or research studies because while it was be possible to full y omit bias from the case studies, it wa s important to be aware of it and how it impact ed the outcome.
87 In addition to bias, it wa s also important to consider the sources of data, the context in which they were written, and the accuracy of the archival data (George & Bennett 2005). As the majority of data for these case studies was from 1990 to present day there should not be as much concern over the quality of the archival data as there would have be en if data collection started in the 1960s or 1970s; howe ver, attention was still be given to this matter. The details of what occurred during the analysis of data for each case study would require extensive explanation The steps that are taken in vetting the data are often more apparent than the processes the mselves because the steps in the analysis are unique to each case. However, it is important to explain the analysis process in depth and how conclusions are reached (George & Bennett 2005). This is an important conclusion to the case study process as it e xplains the process to readers who were not as immersed in the data to the extent that the researcher has been and may require more details regarding how conclusions were reached than someone would who is familiar with the data and area of study might (Geo rge & Bennett 2005). This step will be achieved in the discussion chapter.
88 CHAPTER 4 THE PRESENT STATE OF LG COUPLES ACCESS TO ADOPTION AND MARRIAGE: AN OVERVIEW OF STATES The database that was constructed for this project was meant to be as inclusive as possible. The breadth of information that was collected in the construction of the database allows for a variety of analyses pertaining to demographics, politics, religion, and laws of states to be conducted. This portion of the results will address the overall picture that the states present individually in relation to their demographics and their stance on LG couples adopting and marrying. Data will be organized in the form of descriptives for each of the data points and how the states adhere with one another. Following a review of the more general descrip tives, the data will be analyzed using the ting and marrying. This will involve a comparison of the states within each cell of the typology to determine if there are commonalities beyond their stance on adoption and marriage as well as how they may differ from the other cells in the typology. State Demographics and Statistics A breakdown of information on each state occurred in terms of the regional variation among states, the distribution of the same sex couples, the political leanings of states, and the religious affiliations of the state populat ion. R egional Variation The U.S. Census Bureau has divided the country into four regions. These regions will be used as the primary indicators of locations and regional comparisons throughout this project. While the regional breakdown of the country, in i tself, is not a means for comparison when it is combined with other data that has been collected in the database it is possible to draw conclusions based on regional variation. The regional
89 breakdown of the U.S. is indicated in Figure 4 1 There are thirte en states in the Western region, twelve states in the Midwest, ten states in the Northeast, and fifteen states in the South. Figure 4 1. Regional breakdown of the United States In addition to the broader regi onal categories highlighted in Figure 4 1 certain analyses may call for more precise regional classification of states. A more detailed regional breakdown is illustrated below in Figure 4 2 This more detailed breakdown of the regions divides the country into nine areas. While some of the regiona l distinctions may not be necessary, there is a need to further explain variation. For instance, California and Montana are both classified as Western states, but there is a noticeable difference in social attitudes in coastal Western states versus those t hat are more inland.
90 Figure 4 2. Detailed regional breakdown of the United States General and Same Sex Couple Populations The population size of the country varies state by state. The overall population of each state is measured by the number of indiv iduals in residence However, as previously noted, Census data pertaining to the LG population is measured in terms of the number of same sex couples per 1,000 households as opposed to the number of individuals who identify as lesbian or gay (Gates & Cook e, 2010) This does create a slight discrepancy in comparing individuals to couples (although the couples could be extrapolated to account for individuals), but the primary focus of this section is the port i dentifies as being in a same sex relationship and, of those, what percentage are parenting. The population of a state does appear to be related to the number of same sex couples per 1,000 households in that the larger the population of a state the larger the propor tion of same sex couples are likely to reside there This may be a result of
91 general population size and as overall population increases, so might the population of certain portions of its population; h owever, this may have more to do with the state, benef its, and other life choices that may account for this relationship. This would be something that could be explored in future research. Figure 4 3 details the number of same sex couples per 1,000 households who reside in each state. The proportion of same s ex couples in the United States range s from 2.0 to 8.4 couples per 1,000 households in a given state. In reviewing the map, there are interesting patterns that emerge. The state with the smallest proportion of same sex co uples residing in it (n < 2. 0) is North Dakota. The states with the second smallest proportion of same sex couples residing in them (n = 2.1 to 4.0) those that are co ncentrated in the north western portion of the country as well as some in the southern region ( Alabama, Arkansas, Idaho, Io wa, Kansas, Michigan, Mississippi, Montana, Nebraska South Carolina, South Dakota, West Virginia, Wisconsin, and Wyoming) and tend to have relatively smaller populations in comparison to the rest of the nation These states also tend to be less likely to be supportive of same sex couples adopting or marrying (SEE Table 4 6 ). The exception to this would be Iowa and Wisconsin. However, the proportion of same sex couples residing in a state are not indicative of the benefits they may have access to. Eight een states have between 4.1 and 6.0 same sex couples per 1,000 households yet four of them ( Connecticut, Maryland, New Jersey, and New Mexico ) have laws that are highly favorable toward same sex couples. This pattern can also be observed in the states with th e highest proportion of same sex couples ( 6.1 couples or higher). The state with the highest p roportion of same sex couples is Vermont ( n = 8.4 couples) allows same
92 sex couples to adopt and marry In fact, the thirteen states with the highest proportion of same sex couples per 1,000 households are all favorable in some capacity toward same sex couples. Of the states with 6.1 couples or higher, only Arizona and Florida are opposed to same sex coupl es marrying and are unclear in their stances on adoption. The proportion of same sex couples in a state may make a compelling argument in the favor of affording rights to these couples, but it is only part of the picture. Figure 4 3. Same sex couples per 1,000 households in each state The proportion of same sex couples living in a given state may speak to the need for laws that benefit them (i.e. parental rights and partnership recognition); however, while the proportion of same sex couples living in a state is of interest, what is more compelling is the percentage of same sex couples who are raising children in these states While it is not known whether these couples have had to take advantage of the
93 adoption system to have their parental rights lega lly recognized, Figure 4 4 illustrates that there are same sex couples raising children in every state making discussions of legal recognition of parenthood and adult relationships a relevant point of interest. Figure 4 4. Percent of s ame s ex c ouples r aising c hildren in e ach s tate This map details the percentage of couples who are raising children. What this map does not include are the number of children that are being raised. This means that, at a minimum, that there is one child being raised by each couple. The states with the smallest percentage of couples raising children also tend to be those who have the more favorable policie s toward these couples adopting (n = 11% to 16% ). The exceptions to this would be Arizona and Virginia. The states with the highest percentages of same sex couples raising children (Wyoming 25% and Mississippi 26%) are also the states with legal policies t hat are less favorable toward same sex couples adopting and or marrying. While the percentage of same sex couples raising children
94 should not be an indicator of the rights afforded to these couples and their children it is a compelling argument for offer ing more favorable same sex parenting laws that the states with the highest percentages of same sex couples raising children are those who are less likely to provide them with legal protection This argument is e specially relevant in the states with the la rgest concentration of same sex couples raising children in metropolitan areas (populations above 1 million) These states (Michigan, Tennessee, Texas, Utah, and Virginia) are the ones that are either unclea r or unfavorable toward same sex couples adopting ( Rodriguez & Gaitlin May 20, 2013 ). Political Affiliation The link between political affiliation and attitudes toward homosexuali ty has been studied extensively. Typically individuals who consider themselves to be more conservative will have less favora ble attitudes towards lesbians and gay men than those who co nsider themselves to be liberal ( Haslam & Levy, 2006 ) Arguably, this could be extended to attitudes that people hold toward lesbian and gay male couples adopting and/or marrying. Figure 4 5 indic ates how each state voted in the 2012 presidential election ( New York Times, November 29, 2012) In this election, 24 states were re publican and 26 states were democrat This meant that a slight majority of states voted liberally as opposed to those who vo ted conservat ively. The states that voted republican tend to fall within the Midwestern mountain states and the southern portion of the country. The democratic states tend to be coastal states and those that are in the northeast and Great Lakes regions. This information can be used to look at regional patterns in conservatism and liberalism in addition to correlations between political affiliation and the abilit y for same sex couples to adopt and/or marry.
95 Figure 4 5. R epublican and democrat st ate m ap of 2012 p residential e lection Religious Faiths Much like political affiliation religious doctrines can have an impact on attitudes toward homosexuality, lesbia ns and gay men adopting, and sa me sex marriage ( Whitehead, 2010 ) There may be correlations between higher percentages of particular faiths being practiced in a given state and the attitude towards lesbians and gay men. The religious composition of a state may also be indicative of the likelihood that a same sex couples.
96 Table 4 1. Religious f aiths p resent in s tates Religious Faiths State Evangelical Protestant Mainline Protestant Historically Black Protestant Catholic Mormon Jewish Muslim Buddhist Other Unaffiliated Alabama 49 15 18 6 0 <.5 <.5 <.5 1 8 Alaska 26 19 2 14 4 <.5 1 <.5 2 27 Arizona 23 15 2 25 4 1 <.5 1 2 22 Arkansas 53 16 10 5 <.5 <.5 <.5 <.5 <.5 13 California 18 14 4 31 2 2 <.5 2 2 21 Colorado 23 19 2 19 2 2 <.5 1 2 25 Connecticut 10 13 4 43 <.5 1 <.5 1 2 23 Delaware 15 18 14 27 <.5 2 <.5 <.5 4 19 Florida 25 15 8 26 <.5 3 1 <.5 1 16 Georgia 38 16 16 12 1 1 <.5 <.5 < .5 13 Hawaii 26 18 <.5 22 5 <.5 <.5 6 2 17 Idaho 22 16 <.5 18 23 <.5 <.5 <.5 2 18 Illinois 19 17 9 32 <.5 2 <.5 1 1 15 Indiana 34 22 6 18 1 1 <.5 <.5 <.5 16 Iowa 24 30 1 25 1 1 <.5 <.5 1 15 Kansas 29 27 3 23 1 <.5 <.5 <.5 1 14 Kentucky 49 17 5 14 < .5 <.5 <.5 <.5 1 12 Louisiana 31 9 20 28 <.5 <.5 1 1 <.5 8 Maine 15 26 <.5 29 1 <.5 <.5 1 2 25 Maryland 15 20 18 18 <.5 5 <.5 1 1 17 Massachusetts 11 15 2 43 <.5 3 <.5 1 2 17 Michigan 26 19 8 23 1 1 1 1 1 17 Minnesota 21 32 1 28 <.5 1 1 1 1 13 Mississippi 47 11 23 9 1 <.5 <.5 <.5 1 6
97 Table 4 1. Continued Religious Faiths State Evangelical Protestant Mainline Protestant Historically Black Protestant Catholic Mormon Jewish Muslim Buddhist Other Unaffiliated Missouri 37 18 6 18 1 1 <.5 <.5 1 16 Montana 26 21 <.5 23 5 <.5 <.5 1 2 20 Nebraska 21 27 3 31 <.5 <.5 <.5 <.5 1 16 Nevada 13 11 2 27 11 1 2 <.5 3 21 New Hampshire 11 23 <.5 29 1 1 <.5 1 7 26 New Jersey 12 13 5 42 <.5 6 1 1 1 12 New Mexico 25 15 2 26 2 2 <.5 2 1 21 New York 11 16 5 39 <.5 6 1 1 1 17 North Carolina 41 21 13 9 <.5 <.5 <.5 1 1 12 North Dakota 24 35 <.5 25 1 <.5 <.5 <.5 2 12 Ohio 26 22 7 21 <.5 1 1 <.5 1 17 Oklahoma 53 16 3 12 <.5 <.5 <.5 1 1 12 Oregon 30 16 1 14 5 1 <.5 2 2 27 Pennsylvania 18 25 7 29 <.5 2 <.5 <.5 1 13 Rhode Island 10 13 4 43 <.5 1 <.5 1 2 23 South Carolina 45 18 15 8 <.5 1 <.5 <.5 1 10 South Dakota 24 35 <.5 25 1 <.5 <.5 <.5 2 12 Tennessee 51 18 8 7 1 <.5 1 <.5 1 12 Texas 34 15 8 24 1 1 <.5 1 1 12 Utah 7 6 1 10 58 <.5 <.5 <.5 1 16 Vermont 11 23 <.5 29 1 1 <.5 1 7 26 Virginia 31 20 10 14 1 1 <.5 <.5 1 18 Washington 25 23 1 16 2 1 <.5 1 1 23 West Virginia 36 32 2 7 <.5 1 <.5 <.5 <.5 19 Wisconsin 24 23 3 29 <.5 <.5 <.5 <.5 1 16 Wyoming 26 21 <.5 23 5 <.5 <.5 1 2 20 Note: Data are reported as the percentage of the population that identifies as a particular faith. Source: Lugo, 2008
98 The religious denominations that are present in the United States certainly extend beyond those addressed in this table, but these denominations are the ones that are most commonly discussed and people affiliated with. In reviewing the table, Evangelical Protestants, Catholics, and Mormons are the largest denominations that people identified with. Evangelical Protestants garner ed the highest percentage of followers in eight states where more than 40% of the population identified with this denomination Catholicism seems to be more predominate in the northeastern region of the country with the highest percentages (43 % ) being foun d in Connecticut and Rhode Island. Mormonism is relatively infrequent across the country (0 to 5 % ), but there are higher concentrations of self identified Mormons in Idaho (23 %), Nevada (11% ), and Utah (58 % ). Individuals who identified as Jewish, Muslim, B uddhist, and Other were all faith, others prefer to not label their faith or spirituality. The unaffiliated populations of states ranged from 6 % to 27% Overall, there are a range of religious faiths that are practiced across the country with the highest percentages of Protestants and Catholics being located in the south and northeast. These numbers may be shaped by relative size of the population ; howev er, they still present an interesting picture. There may be outlook towa rd same sex couples adopting Especially considering that, with the exception of Arkansas, the states wi th the highest percentages of Evangelical Protestants are the states that are either unclear or opposed to same sex couples adopting and all of the states (including Arkansas) are opposed to same sex couples marrying.
99 Racial Composition The racial diversi ty of a state varies regionally. The degree of variation that exists in a state may speak to the challenges that are faced by certain portions of the population, as well as speak to the challenges of being part of more than one marginalized group (i.e. bei ng gay or lesbian and a racial minority). Table 4 2. Racial and e thnic c omposition of s tates Racial and Ethnic Categories State White Black & African American American Indian & Alaskan Native Asian Native Hawaiian & Pacific Islander Other Hispanic Descent Alabama 68.5 26.2 0.6 1.1 0.1 2.0 3.9 Alaska 66.7 3.3 14.8 5.4 1.0 1.6 5.5 Arizona 73.0 4.1 4.6 2.8 0.2 11.9 29.6 Arkansas 77.0 15.4 0.8 1.2 0.2 3.4 6.4 California 57.6 6.2 1.0 13.0 0.4 17.0 37.6 Colorado 81.3 4.0 1.1 2.8 0.1 7.2 20.7 Connecticut 77.6 10.1 0.3 3.8 0.0 5.6 13.4 Delaware 68.9 21.4 0.5 3.2 0.4 3.4 8.2 Florida 75.0 16.0 0.4 2.4 0.1 3.6 22.5 Georgia 59.7 30.5 0.3 3.2 0.1 4.0 8.8 Hawaii 24.7 1.6 0.3 38.6 10.0 1.2 8.9 Idaho 89.1 0.6 1.4 1.2 0.1 5.1 11.2 Illinois 71.5 14.5 0.3 4.6 0.0 6.7 15.8 Indiana 84.3 9.1 0.3 1.6 0.0 2.7 6.0 Iowa 91.3 2.9 0.4 1.7 0.1 1.8 5.0 Kansas 83.8 5.9 1.0 2.4 0.1 3.9 10.5 Kentucky 87.8 7.8 0.2 1.1 0.1 1.3 3.1 Louisiana 62.6 32.0 0.7 1.5 0.0 1.5 4.2 Maine 95.2 1.2 0.6 1.0 0.0 0.3 1.3 Maryland 58.2 29.4 0.4 5.5 0.1 3.6 8.2 Massachusetts 80.4 6.6 0.3 5.3 0.0 4.7 9.6 Michigan 78.9 14.2 0.6 2.4 0.0 0.0 4.4 Minnesota 85.3 5.2 1.1 4.0 0.0 1.9 4.7 Mississippi 59.1 37.0 0.5 0.9 0.0 1.3 2.7 Missouri 82.8 11.6 0.5 1.6 0.1 1.3 3.5 Montana 89.4 0.4 6.3 0.6 0.1 0.6 2.9 Nebraska 86.1 4.5 1.0 1.8 0.1 4.3 9.2 Nevada 66.2 8.1 1.2 7.2 0.6 12.0 26.5 New Hampshire 93.9 1.1 0.2 2.2 0.5 0.9 2.8
100 Table 4 2. Continued Racial and Ethnic Categories State White Black & African American American Indian & Alaskan Native Asian Native Hawaiian & Pacific Islander Other Hispanic Descent New Jersey 68.6 13.7 0.3 8.3 0.0 6.4 17.7 New Mexico 68.4 2.1 9.4 1.4 0.1 15.0 46.3 New York 65.7 15.9 0.6 7.3 0.0 7.4 17.6 North Carolina 68.5 21.5 1.3 2.2 0.1 4.3 8.4 North Dakota 90.0 1.2 5.4 1.0 0.2 0.5 2.0 Ohio 82.7 12.2 0.2 1.7 0.0 1.1 3.1 Oklahoma 72.2 7.4 8.6 1.7 0.1 4.1 8.9 Oregon 83.6 1.8 1.4 3.7 0.3 5.3 11.7 Pennsylvania 81.9 10.8 0.2 2.7 0.0 2.4 5.7 Rhode Island 81.4 5.7 0.6 2.9 0.1 6.0 12.4 South Carolina 66.2 27.9 0.4 1.3 0.1 2.5 5.1 South Dakota 85.9 1.3 8.8 0.9 0.0 0.9 2.7 Tennessee 77.6 16.7 0.3 1.4 0.1 2.2 4.6 Texas 70.4 11.8 0.7 3.8 0.1 10.5 37.6 Utah 86.1 1.1 1.2 2.0 0.9 6.0 13.0 Vermont 95.3 1.0 0.4 1.3 0.0 0.3 1.5 Virginia 68.6 19.4 0.4 5.5 0.1 3.2 7.9 Washington 77.3 3.6 1.5 7.2 0.6 5.2 11.2 West Virginia 93.9 3.4 0.2 0.7 0.0 0.3 1.2 Wisconsin 86.2 6.3 1.0 2.3 0.0 2.4 5.9 Wyoming 90.7 0.8 2.4 0.8 0.1 3.0 8.9 Note: Data are reported as the percentage of the population that identifies as a particular race/ethnicity. Source: 2010 Census how receptive the population may be to heterogeneity in other aspects of life (i.e. religious d enominations, sexual orientation, and alternative family forms). Almost half of the states ( n = 24) have a White population that is 80% or higher and an additional twenty five states have a white population of 50% or more. As with the nation population, this makes the white population the majority in 49 out of 50 states. The second largest racial group is black and African American individuals. In seven states (Alabama, Delaware, Georgia, Louisiana, Maryland, Mississippi, and South Carolina)
101 the percent o f the population that is African American is above twenty percent. With the exception of Delaware and Maryland, all of these states are located in the southern portion of the United States. The portion of state populations that are comprised of American I ndian/Alaskan Native, Asian, Native Hawaiian/Pacific Islander, and Other are typically 10% or less, with a few exceptions. Alaska has the highest portion of American Indians/Alaskan Natives (14.8%). California and Hawaii have the highest portion of the pop population that identified as another racial category in California, Nevada, and New Mexico was all higher than 10% While the self identification of being of Hispanic descent highlight that there is a wide variation amongst states with who considers themselves to be Hispanic (1.2 to 46.3 % ). Overall, the majority of states have predominately white po pulations, but there are some states that have a larger degree of variation in racial composition than others. Breakdown of LG Adoption Laws Scholars and special interest groups have tracked the status of gay men and lesbians being able to adopt on the st ate level. This tracking has been as intricate as whether the law is based on statute or case law to as simplistic as to whether or not it is even possible for gay men and lesbians to adopt individually or as a couple in a given state Based on a review of these documents and legal records, a table has been constructed regarding the legal status of adoption law for gay and lesbian couples for each state as of December 2013. The notation of states adoption policies is based on the legal decisions made in 2013. Some of the decisions that were made in 2013 will
102 not be in effect until 2014; however, to prevent a misrepresentation of the state of laws that are already in a state of change, the information is presented a ccordingly. Table 4 3 details each state s policy regarding lesbians and gay men being able to adopt. This table distinguishes between same sex couples being able to jointly adopt or to have a second parent, of the same se perspectives on single gay men and lesbians adopting have also been included as a point of reference. Currently, 16 states permit 5 states prohibit, and 29 states are either unclear or do not have an adoption policy that pertains to lesbians and g ay couples Table 4 3. Type of LG a doptions p ermitted State Single Adoption Joint Adoption Second Parent Adoption State Single Adoption Joint Adoption Second Parent Adoption Alabama X Montana X X Alaska X Nebraska X Arizona X Nevada X X X Arkansas X X New Hampshire X X X California X X X New Jersey X X X Colorado X X X New Mexico X Connecticut Maybe X X New York X X X Delaware X X X North Carolina X Florida Maybe North Dakota X Georgia X Ohio X Hawaii X X X Oklahoma X Idaho X Oregon X X X Illinois X X X Pennsylvania X X Indiana X X X Rhode Island X X X Iowa X X X South Carolina X Kansas X South Dakota X Kentucky X Tennessee X Louisiana X Texas X Maine X X Utah X Maryland X X X Vermont X X X Massachusetts X X X Virginia X Michigan X Washington X X X Minnesota X X X West Virginia X Mississippi X Wisconsin X Missouri X Wyoming X Sources: Appell (20 12), Human Rights Campaign (2013 ), National Council on Lesbian Relations (2012).
103 Perhaps a more telling visual representation of this data is Figure 4 6. This map illustrates the dispersion of favorable adoption policies. It also illustrates how certain regions of the country are more receptive to benefits being afforded to same sex couples than others. Figure 4 6. Types of a doption a vailable to s ame s ex c ouples This map illustrates the dispersal of state policies on same sex couples adopting. Two states (Arkansas and Maine) only allow same sex couples to adopt jointly and additional two states (Montana and Pennsylvania) allow same sex couples to obtain second par ent adoptions. Nineteen states allow same sex couples access to both joint and second parent adoptions. This means that these couples can adopt children who
104 are not hi ghlighted may not have a definitive stance on same sex couples adopting or the information on it is not readily available. Further review of the individual states laws indicated that of those who did have a policy in place, the policies were either base d on statute or case law. To illustrate these variations in adoption policies, Table 4 4 was constructed to detail the distinctions have a clear policy on same sex couples adopting or they have not made a decision, they have been classified as unclear. The breakdown of the states within this table are as follows: 9 states per mit adoption based on statute ; 13 states permit adoption based on case law ; 29 states remain unclear in their adoption polic i es ; adoptions are banned in 3 states based on case law, and adoptions are banned by statute in 2 states. Table 4 4. Detailed b reakdown of l ocation of d ecision c oncerning a doption l aw for LG State Permitted By Statute Permitted By Case Law Unclear Banned by Case Law Banned By Statute Alabama X Alaska X Arizona X Arkansas X California X X Colorado X Connecticut X Delaware X Florida X Georgia X Hawaii X Idaho X Illinois X Indiana X Iowa Kansas X
105 Table 4 4. Continued State Permitted By Statute Permitted By Case Law Unclear Banned by Case Law Banned By Statute Kentucky X Louisiana X Maine X Maryland X Massachusetts X Michigan X Minnesota X Mississippi X Missouri X Montana Nebraska X Nevada X New Hampshire X X New Jersey X X New Mexico X New York X X North Carolina North Dakota Ohio X Oklahoma X Oregon X Pennsylvania X Rhode Island X South Carolina South Dakota Tennessee X Texas X Utah X Vermont X X Virginia X Washington X West Virginia X Wisconsin X Wyoming X States that have no information or have more than one box indicated may be unclear in their current policies. Sources : Appell (2012), Human Rights C ampaign (2013 ) and National Council on Lesbian Relations (2012 )
106 Relationship Recognition Laws Marriage is often a stipulation, or preference, for those who are looking to adopt. For the purpose of the typology, marriage is the only type of legally recognized relationship that is being used; however, if states offer some form of relationship recogni tion it may be relevant to the analysis. For this reason, Table 4 5 details state policies on same sex marriage, civil unions, domestic partnerships, and where no decision has been made. Table 4 5. Detailed b reakdown of r elationship r ecognition l aws for same sex couples State Same Sex Marriage Permitted Same Sex Marriage Banned Unclear/No Decision Civil Unions Domestic Partnerships Alabama X Alaska X Arizona X Arkansas X California X Colorado X X Connecticut X Delaware X Florida X Georgia X Hawaii X Idaho X Illinois X Indiana X Iowa X Kansas X Kentucky X Louisiana X Maine X Maryland X Massachusetts X Michigan X Minnesota X Mississippi X Missouri X Montana X
107 Table 4 5. Continued State Same Sex Marriage Permitted Same Sex Marriage Banned Unclear/No Decision Civil Unions Domestic Partnerships Nebraska X Nevada X X New Hampshire X New Jersey X New Mexico X New York X North Carolina X North Dakota X Ohio X Oklahoma X Oregon X X Pennsylvania X Rhode Island X South Carolina X South Dakota X Tennessee X Texas X Utah X Vermont X Virginia X Washington X West Virginia X Wisconsin X X Wyoming X Sources: Human Rights Campaign (2013) and National Council on Lesbian Relations (2012). As with adoption laws, a visual representation of this information highlights the variation in policies between geographical regions is detailed in Figure 4 7 This map highlights the overwhelming number of states that have placed bans on same sex marriage These bans have been put in place through legislation or constitutional amendment. In some instances, while marriage is banned, couples may have access to civil unions or domestic partnerships. Four states grant either civil unions or domestic partnershi ps to same sex couples; however, an additional sixteen states permit same
108 sex couples to marry. Of these states, the majority have passed favorable same sex marriage laws since 2008, with nine of those states passing such laws in 2013 alone. Figure 4 7. Same s ex r elationship r ecognition l aws Sex Marriage Laws Drawing on the data that were c ollected in the construction of the database, the following table was constructed. This table details the curren t stance that each state takes on lesbian and gay male couples adopting and marrying. For the purpose of referencing particular cells in the typology, the cells will be labelled such that the first the second to their stance on same sex marriage (i.e. Yes/Yes, Yes/No, No/Yes, No/No, Unclear/Yes, and Unclear/No ). Each state was input into its corresponding cell. Upon completing this process, the only cell that did not contain data corresponded to states that did not allow lesbian
109 and gay male couples to adopt, but also did not allow them to marry. As of December 20 13, no state meets this criterion With the except of New Mexico, a ll of the states that issue marriage licenses to same sex couples, also allow them to adopt ( n = 1 6 ). Eight additional states allow same sex couples to adopt, but they do not allow them to marry. This means that twenty five states allow same sex couples to adopt. The remaining states do not allow same sex couples to adopt. Of these, t here are nine states that do not allow same sex couples to adopt or get married. The remaining sixteen states are unclear in their stance on same sex couples adopting but they are clear on the issue of same sex couples not being able to marry This table illustrates a fair amount of variation in state policies on same sex couples adopting and marrying. However, knowing which states are similar in same sex marriage laws is only a portion of this discussion. Figure 4 9 provides a visual representation of this data.
110 Note: This figure was constructed based on Tables 4 3 and 4 5. Figure 4 8 Typology of s tates b ased on s ame s ex a doption and m arriage l aws At first glance, there does appear to be a pattern in the location of a state and its location within the typology. Specifically, that states on the pacific coast, north central, and northeast tend to be more favorable toward same sex couples adopting, regardless Same Sex Marriage Permitted Same Sex Couples Permitted as Adopters Yes No Yes California Connecticut Delaware Hawaii Illinois Iowa Maine Maryland Massachusetts Minnesota New Hampshire New Jersey New York Rhode Island Vermont Washington Arkansas Colorado Florida Indiana Montana Nevada Oregon Pennsylvania No Mississippi Nebraska North Carolina North Dakota Ohio South Carolina South Dakota Utah Wisconsin Unclear New Mexico Alabama Alaska Arizona Georgia Idaho Kansas Kentucky Louisiana Michigan Missouri Oklahoma Tennessee Texas Virginia West Virginia Wyoming
111 of their stance on same sex marriage. However, the remainder of the states appear to be undecided or unfavorable in their stance on same sex couples adopting. The specifics of the variation within each cell of the typology will be explored further below. Figure 4 9 Typology of s ame s ex a doption and m arriage l aws C haracteristics of States within the Typology The database that was constructed provided a means of looking at various data points that are relevant to discussions of lesbians and gay men adopting. The purpose of the typology is to create a more refined and logical means through which to view the more generalized data. By viewing the commonalities and differences that exist within and between the cells in the typology, steps are being taken toward achie ving a more comprehensive understanding of the variations in adoption policies. With this in mind, each cell of the typology will be analyzed.
112 Yes/Yes States in this cell of the typology allow same sex couples to adopt, either jointly or as second parents and allow same sex couples to marry. There are sixteen states that meet these criteria. Regionally, the states fall along the west coast, north central, and northeastern portions of the United States. These states share similarities in their same sex ado ption and marriage policies, as they do with other aspects of their social and legal policies. The demographic composition of these states varies considerably. In terms of the number of same sex couples living in these states, most of them seem to have p opulations that fall within the range of 2,001 4,000 and more than 14,000 couples. There is even more variability in the number of couples that are raising children in these states with numbers ranging from 412 to 15,698 couples. These states cover the ran ge of same sex couples raising children, which does not hold that the states with the highest number of same sex couples raising children are the ones with the most favorable policies toward same sex couples adopting and marrying. All of these states were democratic states in the 2012 election, making their populations more democratic than other states. The religious compositions of these states are relatively similar. Unlike some states, none of the faiths in these states comprise more than 55 % of the po pulation. The predominant faith in these states is divided between Protestants and Catholics; however, there are a range of faiths that are represented in each state. While there appears to be coherence in the dispersal of religious faiths in these states, the same cannot be said for their racial and ethnic composition. In fact, states like California, Hawaii, and Maryland all have racial ly diverse populations where the portion of the
113 population that is white is below 60 % This is in comparison to states li ke Iowa, Maine, New Hampshire, and Vermont which tend to be more racial ly homogenous with white populations of 90 % or more. Overall, while religious faiths and racial compositions may not be clear indicators of the reception that same sex couples will receive, the less secular and more diverse a state is does appear to be linked to more liberal views on certain issues Yes/No States that fall under this category have favorable laws toward same sex couples adopting, but they do not permit these couples to marry There are eight states that fall within this cell of the typology. Unlike the states in the Yes/Yes cell, t hese states do not adhere to any regional pattern; however, these states do complement the patterns observed with the aforementioned cell. Also unlike the states in the Yes/Yes cell, the political affiliations amongst these states are not identical. Specif ically, Arkansas, Indiana, and Montana were all republican states in the 2012 election while Colorado, Florida, Nevada, Or egon, and Pennsylvania were democratic states. While a split in the political affiliations in these states may not be wholly responsib le for why same sex marriage is not permitted in these states, it may be part of the explanation. The population of same sex couples in these states covers the spectrum. This ranges from Montana with 1,348 couples to Florida with 48,496 couples. A simil ar pattern can be observed with the number of same sex couples who are raising children. In this instance, Montana has 297 couples raising children and Florida with 6,453 couples raising children. In terms of the dispersal of religious faiths in these sta tes, there is a similar pattern to what was observed with the states in the Yes/Yes cell when very few states
114 had a predominant faith with percentages over 50% The exception to this being Arkansas and Indiana with Protestant populations over 60 % The rema ining six states were relatively heterogeneous in their religious faith dispersal. The populations of these states are also predominantly white, with more than 75% of the population of each state being white with the exception of Nevada which has 66% of t self identifying as white. No/No The states that have laws that do not allow same sex couples to adopt or marry are included in this portion of the cell. These states are the ones that have made definitive decisions to restrict the access that same sex couples have to certain benefits that are afforded by the legal recognition of parenthood and partnership. Regionally, these states tend to fall in the west north central, east north central, east south central, and south Atlantic port ions of the country. The majority of the nine states that are contained within this cell voted Republican in the 2012 presidential election. Ohio and Wisconsin are the exception to this as they both voted Democratic in the election. The number of same s ex couples residing in these states is spilt between states with smaller populations ( n < 4,000) (i.e. Mississippi, Nebraska, North Dakota, South Dakota, and Utah) and those with the largest populations ( n > 6,001) (i.e. North Carolina, Ohio, South Carolin a, and Wisconsin). There is an equally distributed breakdown of the number of same sex couples raising children, with the most being raised in Ohio ( n = 3,480) and North Carolina ( n = 3,380). While Mississippi may not have the largest number of same sex co uples raising children, it does have the highest sex couple population raising children at 26 %
115 Unclear/Yes New Mexico is the only state that falls within this cell. It is located here due to it being unclear what its stance is on same sex couples adopting, even though they are permitted to marry Regionally, New Mexico is located in the south eastern portion of the mountain states. Unlike the states surrounding it, New Mexico voted democrat in the presidential election. This may have something to do with its move from the Unclear/No to Unclear/Yes cell in 2013 following the Supreme Court decision on DOMA. There are 5,825 same sex couples residing in the state of New Mexico. Of these 5,825 couples, 1,038 of them are raising children. Much like the other states that are favorable toward same sex couples marrying, New Mexico does not have a majority religious faith. Forty two percent of the population is Protestant, but there are higher percentages of Catholics and Unaffiliated individuals too ( n > 20 % ). The racial composition of New Mexico is relatively diverse although the majority of the population is still white ( n = 68.4 % ). Unclear/No The sixteen states that fall within this cell are all unclear in whether or not they will allow same sex couples to adopt in their jurisdiction; however, these states are definitely opposed to same sex couples marrying. Thes e states span the breadth of the country from the western most portion of the mountain region to the southernmost portion of the United States Much like the states that are in the No/No cell, all but two of the sixteen states in this cell voted r epublican in the 2012 presidential election. The exceptions to the majority were Michigan and Virginia, which both voted democratic in the president election.
116 The number of same sex couples who reside in these states varies significantly. Idaho has the smallest n umber of same sex couples residing in it ( n = 2,042). The four states with the largest number of same sex couples residing in them are Georgia ( n = 21,318), Michigan ( n = 14,598), Texas ( n = 46,401) and Virginia ( n = 14,243). Of these states, same sex coup les in Georgia and Texas are raising the most children ( n = 4,179 and n = 9,191, respectively). The remainder of the states span ned the spectrum regarding the number of same sex couples who are raising children (i.e. 455 couples in Idaho to 2,650 couples i n Michigan).
117 CHAPTER 5 CASE STUDY ANALYSES: A COMPARISON OF STATES WITH OPPOSING VIEWS sex couples adopting and marrying illustrates the variation of perspectives that exist within the United States. Taking this variation into consideration, an exploration of the paths that states took in establishing their policies on same sex couples adopting and marrying may provide further insight into what may have attributed to the divergent paths that have led to the range of policies. While all fifty states meet the criteria to fill five out of the six cells in the typology, the cells containing the states that are either for or against both same sex couples adopting and marrying are the two cells that illustrate the polarized views on these issues. For this reason, two states from each of these cells ( Yes/Yes and No/No ) will be selected and investigated using in depth case studies of the progression of their policies on same sex couples adopting from January 1990 to December 2013. While same sex marriage is a part of the typology, for the purpose of these cases studies, the primary focus will be on adoption with marriage being a secondary portion of the analysis. The hope is that these case studies will provide greate r insight into the processes that states go through in establishing their stance on same sex couples adopting and parenting. This insight may be beneficial for understanding the future of same sex couples on a state by state level on these issues. States w ith Affirmative Stances on Same Sex Couples Adopting and Marrying The states included in this cell of the typology permit same sex couples to both adopt and marry. There are sixteen states that meet this criterion ; however, only two will be selected for fu rther investigation. With that being said, case studies will be conducted
118 on California and Connecticut. These states were selected because California is often at the center of debates concerning the rights of same sex couples (i.e. Proposition 8) and Conn ecticut permits same sex couples to adopt, but there is a stipulation that adoption process. Based on the discussion of the cells in the previous chapter, these states are s imilar in their political leanings and religious diversity, but they differ in their racial/ethnic composition and the number of same sex couples that live with in their borders. Both of these states exemplify a range within the Yes/Yes cell that includes r egional and racial/ethnic variation. California California is often viewed as one of the more progressive and liberal states. An example of this can be seen in the state voting in favor of a democratic president in the 2012 election (59.3% for Obama and 38.3% for Romney) ( New York Times, November 29, 2012 ) In terms of the social context of the state, California is considered to be socially liberal. This can be observed in the debates that have arisen over the legalization of marijuana and same sex marri age. The legalization of marijuana for recreational or medical use raises numerous concerns, but California became the first state to legalize marijuana for medical use in 2010. California also has a contentious history regarding the legal recognition of r ights for same sex couples; however, this will be discussed more in depth in the sections pertaining to same sex marriage in California. California is often considered to be one of the most diverse states in terms of th e composition of its population Thi s can be seen in the religious and racial/ethnic diversity of the state. California is religiously diverse with the highest percentages of a
119 particular faith being Catholics (31 % ) followed by Evangelical Protestants (18%) ( Lugo, 2008 ) Similar variation c an be observed in the racial and ethnic composition of the state. Specifically, while white is still the largest racial category (57.6 % ) other racial categories range in size from 1 to 17 % With 37 million residents, California maintains its diversity thr ough representation as well as numbers by being the state with the largest population As of the 2010 census, there are 98,153 couples that identify as being in same sex relationships (Gates & Cooke, 2010) This means that 7.8 out of every 1,000 households are being headed by same sex couples. Of the more than 98,000 couples in California, 16% of them are raising children (Gates & Cooke, 2010) This means that there are at least 15,698 children who are being raised by same sex couples in California. Figure 5 1. Timeline of a doption and s ame s ex m arriage i n California
120 History of adoption same sex couples. Same sex couples can adopt jointly or one partner can adopt through a second parent adoptio n. This means that as long as the couples meet the that they will most likely be eligible to become legally recognized parents. The establishment of adoption laws that are friendly toward gay and lesbian couples has occurred t hrough code and case law. California Code full y details the process that must be gone through to vet an applicant for approval to adopt (CAL. CODE REGS. tit. 22, Â§ 35181). While California code does not explain how, if at all, the sexual orientation of pro spective adoptive parents is taken into consideration, the Foster Care Non Discrimination Act (2003) does Specifically, the act states that an agency cannot discriminate in the placement of ld imply that sexual orientation may be taken into consideration in determining whether or not a couple can adopt in California, but that it cannot be the reason that their application to adopt would be denied. The ability for same sex couples to jointly adopt a child that does not have a legal or biological connection to either adoptive parent is unquestioned in California; however, there is little explanation as to why this is the case. In terms of second paren t adoptions, the legal standing for same sex couples to pursue this route of adoption is more evident. Second parent adoptions are available to same sex couples who are co parenting and/or in a legally recognized union. For gay and lesbian couples in whi ch a child is from a previous relationship or conceived in the context of the present
121 relationship, the co parent without any legal or biological relationship to the child can petition to adopt the child(ren) based on the decision reached in Sharon S. v. S uperior Court of San Diego County in August of 2003. The case pertained to legal recognition of ( Sharon S. v. Superior Court, 2003 ) The women had been in a committed relationship with one another for almost 20 years and, during that time, Sharon conceived two sons through artificial insemination. Annette was able to obtain a second parent adoption for the first so n, Zachary; however, for the second son, Joshua, the documentation provided would have leg ally in or der for Annette to legally obtain hers, even though the intent was for both women to have legal rights over both children. When the parental rights came into question because the adoption proceedings for Joshua were never completed ( Sharon S. v. Superior Court, 2003 ) Sharon did what she could to block Annette from seeking visitation and having the adoption finalized; however, the cou rts ultimately decided in favor of Annette being able to pursue the adoption of Joshua even though the relationship between the women had ended. This case established the foun dations that intentions and the best interest of the child should be taken into consideration even when relationships between parents end. Additionally, it reinforced that there are grounds within the statutes for second parent adoptions between couples of the same sex ( Sharon S. v. Superior Court, 2003 ) parented and was conceived within the context of a committed relationship addressed
122 the ability of same sex partners to secure parental rights in situations where no legal parental rights for couples who are in a legally recognized relationship. Section 9000(b) of the California Family Code states t hat with couples who are in a legally recognized domestic partnership, the partner who does not have a legal or biological connection to the child may petition to adopt them (Family Code 9000 ) This would be the equivalent to a step parent adoption of a ch ild from a previous relationship or a child who was conceived in the context of the current relationship. Based on the recent changes that have occurred in California following the Supreme Court decision on Proposition 8, gay and lesbian couples who are ma rried would also be eligible to adopt children through second parent adoptions. History of relationship recognition The history of relationship recognition for same sex couples in California is a complex and convoluted one. The earliest discussions about the recognition of same sex relationships in California were most likely sparked by the events that took place in Hawaii, the implementation of DOMA, and the GLB community in central California. In March of 2000, Proposition 22 was passed. This propositio n, also known as the Knight Initiative, was an act of legislation that stated that only marriages between a man and a woman would be legally recognized. The Knight Initiative effectively limited the legal options for same sex couples to have their relation ships legally recognized to domestic partnerships or civil unions. California made headlines four years later when the mayor of San Francisco made the decision to issue marriage licenses to same sex couples. This was a
123 controversial move on the part of May or Gavin Newsom, but he justified his actions by citing that the Equal Protection clause of the California constitution gave him the ability to issue licenses to same sex couples. In a two month time frame (February March 2004) nearly 4,000 marriage lice nses had been issued to same sex couples. However, an injunction was eventually put in place to prevent more marriage licenses from being issued. It was ultimately determined that Mayor Newsom acted outside of the boundaries of his office and the marriages were considered invalid. Marriage continued to be an option that was not available to same sex couples, but a year later, in September 2005, A.B. 849 was passed. This bill removed th e stipulation put forth by Proposition 22 that married couples must be of the opposite gender. However, as soon as the bill was passed, it was vetoed by governor Schwarzenegger. After much back and forth, 2008 marked a year of major changes for California regarding its same sex marriage policies. In May, the California Supreme Court convened to determine the fate of Prop osition 22. The court ultimately determined that enforced. As the Supreme Court wa s making their decision on Proposition 22, Proposition 8 was being proposed as an addition to the ballot for the November election. Unlike Proposition 22, if passed, Proposition 8 would have amended the California constitution to state that only marriages between one man and one woman would be lega lly recognized. The addition of Prop osition 8 to the ballot sparked controversy across the state. Many sought to see that their voices were heard on this issue, but the proposition pass ed with a narrow majority of 52% of the votes. The passing of Proposit ion 8 was
124 alarming because it was shocking to see such a decision made in California, especially one that seemed to signify an end the ongoing discussion about same sex couples having the ability to get married. It also called into question the fate of the 18,000 marriages performed from the time that Prop osition 22 was overturned through the implementation of Prop osition 8. While it was determined that these marriages would stand, going forward, there would be no more marriages for same sex couples. Oppon ents of Proposition 8 were not giving up. They took Proposition 8 to the courts where it was determined by the California Supreme Court that Prop. 8 was valid. A year later, District Court Judge Vaughn R. Walker overturn ed Prop 8. This is the beginning of a pattern of back and forth, within the various levels of the courts, regarding the validity of Proposition 8. For over four years the state of California was in flux regarding whether or not it would permit same sex couples to adopt. The battle over Propo sition 8 was taken to the highest court, the Supreme Court of the United States, where it was determined that private parties had no grounds for supporting Prop. 8 if the state would not. This meant that the discussion over Prop. 8 was effectively closed b ecause California would not support it and that the decision made by Judge Walker in 2010 was valid, effectively ending the discussion concerning the state of same sex marriage in California and the legality of Proposition 8. Summary. California has been known for being a rather progressive state ; however, that does not mean that it has not had its challenges along the way The path that the state has taken toward permitting same sex couples to adopt has been rather tumultuous. It took from 1996 to 20 13 to see that same sex marriage was legalized in California. While there was much back and forth regarding whether or not same sex
125 couples could marry, there was less controversy over whether or not they could adopt. 2003 solidified the right for lesbian and gay couples to partake in second parent adoptions, regardless of whether or not they were in a legally recognized union. The lack of availability for same sex couples to marry did not impact whether or not couples could adopt, but its passage has solid ified their legitimacy in the eyes of the law and public, which may make the adoption process easier than it once was (i.e. by having legal recognition of their commitment to one another, these couples may not have to validate their commitment to one anoth er when looking to pursue adoption). Connecticut As one of the more northern states in the northeast, Connecticut is well situated between states that share similar political and social beliefs. Connecticut tends to vote democratic in presidential electio ns, but this does not mean that they are liberal in all areas of politics. In the 2012 presidential election the majority went to Obama (58.4%); however, it was not a landslide in his favor ( New York Times, November 29, 2012 ) The religious composition of the state is rather diverse in terms of the portion of the population that is comprised of Protestant, Catholic, and unaffiliated individuals. While Catholicism is the predominate faith (43 % ), Connecticut is not as religious as other states that have more than 50 % of the population affiliated with a specific religious faith ( Lugo, 2008 ) The religious diversity of the state is not observed in its racial and ethnic composition. Specifically, the majority of the population is white (77.6 % ) and any other raci al minority comprises less than ten percent of the population ( Lugo, 2008 ) In terms of overall population, Connecticut has more than 3 million residents. Of those 3 million, 7,852 couples identify as being in a same sex relationship (Gates & Cooke, 2010) This means that 5.7 out of every 1,000 households are headed by a gay
126 or lesbian couple. 17% of same sex couples in Connecticut are raising at least one child (Gates & Cooke, 2010) This means that there are at least 1,338 children being raised by same s ex couples. Figure 5 2. Timeline of a doption and s ame s ex m arriage i n Connecticut History of adoption t e is rather unique. The statu t e does not explicitly state that only married couples are permitted to adopt which means that even if same sex marriage was not an option in Connecticut that same sex couples could potentially adopt. While the relationship status of prospective adoptive pa rents is not as critical of a requirement in Connecticut as it is in some states, what makes Connecticut unique is that the sexual orientation of the prospective adopters can be taken into consideration in the adoption process. Although same sex couples h ave the ability to adopt children in Connecticut, their sexual orientation is still something that can be taken into consideration in this process (H B 5813, 1996). In 1996, Section 45a 726a of the Connecticut General
127 Statutes was repealed and in its plac e the following considerations were to be taken for prospective adoptive parents: (1) that the sexual orientation of the prospective parents could be taken into consideration when placing children and (2) that based on the consideration of sexual orientati on, the Commissioner of Children and Families or adoption agencies were not required to place children with adoptive parents who identified as homosexual or bisexual (H B 5813, 1996). While this new consideration did not mean that prospective adopters who were not heterosexual would be explicitly denied adopting solely based on their sexual orientation there was now a potential justification for doing so. It is unclear to what extent sexual orientation is taken into consideration in adoption proceedings; however, in January 2013 Connecticut House Bill No. 6220 was proposed. Among the changes proposed in the bill was the repealing of Section 45a 726a of the general statutes to exclude sexual orientation from adoption proceedings and to remove language that was not favorable toward same sex couples or unmarried individuals (H B 6220, 2013). In 2013 Public Act 13 81 (SB 984) was passed (Office of the Probate Court of Administrator, 2013). This public act stated that as of October 1, 2013, the changes propose d in HB No. 6220 would go into effect. The implementation same sex couples who are seeking to adopt by removing sexual orientation from being a consideration in adoption p roceedings (Office of the Probate Court of Administrator, 2013). Under Connecticut law, same sex couples can adopt jointly or as second parents. This means that couples can adopt a child that has no previous legal or
128 biological connection to either partne r (joint adoption) or one partner can adopt a child that is biological ly related to the other partner (second parent adoption). The ability for same sex couples to pursue either route for adoption is the result of a 1999 Connecticut Supreme C ourt case pert cohabitating same sex partner. The partner was ultimately denied the ability to adopt Baby Z and a year later legislation was passed that would make such adoptions possible. In re the Adoption of Baby Z highlighted discrepancies in Connecticut adoption law that would permit unmarried cohabitating same sex partners from both being parents in the eyes of the law. Specifically, the conception of the child was a joint endeavor that was planned by both women (Anne and Malinda). One of the partners carried the child (Anne), but both were involved in the parenting. The partner that was unrelated to the child (Malinda) sought to have her parental rights recognized, but was unable to do so due to the inability of the legal system to account for a child having two mothers or two fathers simultaneously. In order for Malinda to have her relationship to Baby Z legally recognized, the parental rights of Anne would have had to have been terminated. This created a diffic ult situation in which there was no solution and Malinda was ultimately denied the ability to adopt Baby Z due to the limitations of the legal system. In response to the challenges brought to light In re the Adoption of Baby Z Substitute House Bill No. 58 30 Public Act No. 00 228 was passed by the Connecticut Congress in 2000. This bill provided greater clarification of the
129 see them placed in a loving and caring home in which their interests are central. The composition of the home that they are placed in did not seem to be of great concern, although i t was noted that, under current law marriage was defined as being between one man and one woman. While this means that the relationship between two partners of the same sex would not be legally recognized and thus make them ineligible to adopt as a married couple, the adoption statu t e was r eworded to include the following any parent of a minor child may agree in writing with one other person who shares parental responsibility for the child with such parent that the other person shall adopt or join in the adoption of the child, i f the parental rights, if any, of any other person Based on this wording, as long as the biological parent is in agreement a co parent may legally be able to adopt the child without rescinding law should allow same sex cohabitating couples to both have legal parental rights over their children and pursue the equivalent to a second parent/step parent adoption. Based on Connecticut l aw, same sex couples can both be legally recognized parents to their children; however, if a couple would like to jointly adopt a child they must be in a legally recognized civil union or marriage. Second parent adoptions can occur for couples in which one parent is biologically related to a child or has previously adopted them and the partner wishes to adopt the child on a separate occasion to secure their parental rights. History of relationship recognition In 2008, Connecticut became the second state t o issue marriage licenses to same sex couples. The decision followed the repeal sex
130 marriage policy made Connecticut the second state to pass and maintain the right for same s ex couples to marry. The ability for same sex couples to marry was brought about by a case that was heard by the Connecticut Supreme Court. Kerrigan v. Department of Public Health, 289 Conn. 135 was the case that was heard before the Connecticut Supreme Court in 2008. This case can be traced back to 2004 when eight gay and lesbian couples were denied marriage licenses in Madison, CT. The case was brought against the Department of Public Health and the couples stated that it was their belief that they were denied marriage licenses strictly because of their being a same sex couple. To support their claims that they should have access to marriage licenses, the couples cited the due process and equal protection clauses of the Connecticut Constitution. The goal of this suit was to ensure that sexual orientation could not be used as an exclusion factor for couples to get married and that marriage license s should be issued to all couples of the opposite and same gender accordingly. In 2005, while the case was pen ding, the Connecticut legislature proposed and passed PA 05 10. This legislation granted civil unions to same sex partners, with the stipulation that marriage would still only be accessible by opposite sex partners. According to PA 05 10, civil unions woul d afford same sex couples all of the rights that they would have obtained through a marriage without having to open marriage up to them. Following the passage of this legislation it was ruled that the plaintiffs in Kerrigan v. Department of Public Health h ad no standing in their claim as they were now able to gain the same benefits of marriage through civil unions. Unsatisfied with the outcome of the case, the plaintiffs filed an appeal with the Connecticut State Supreme Court The outcome of the appeal in Kerrigan v.
131 Department of Public Health was a 4 3 decision in favor of the plaintiffs. The court ruled sex couples from being denied access to marriage. Thus, it was determined that same sex m arriage was legal in Connecticut and that marriage licenses should start to be issued to same sex couples as of October 2008. Following the legalizing of same sex marriages, a senate bill was written and passed in 2010 to further differentiating between m arriages and civil unions. According to S.B. 899, ma Office of Legislative Research 2010; State of Connecticut October 1, 2010 ). There is no distinction to be made regarding the sex, gender, or sexual orientatio n of the two individuals; however, provisions have been put in place to protect the interest of religious entities that receive federal funding from going against the tenants of their faith in performing services for couples that violate their faith ( Offic e of Legislative Research 2010 ). This bill is in line with the decisions made in Kerrigan v. Department of Public Health and it ensures that there is less room for confusion regarding who can be married and who is required to provide services to couples, regardless of their sexual orientation. In addition to clarifying what it means to be married, this bill also stated that legal civil unions that were entered into prior to September 30, 2010 would convert to marriages ( Office of Legislative Research 2010 ). This meant that any same sex couple who had previously obtained a civil union would now be married without having to go through an additional ceremony and paperwork. Summary. path toward same sex marriage and adoption were not as
132 along the way. Similar to California, there was more movement made with regards to state policies concerning same sex couples marrying than there was about them adopting. Connecticut is one of the earliest states to begin discussions on same sex couples being able to obtain legal recognition of parental rights. This was seen in the passage of H.B. 5813 in 1996. While this bill gave consideration to the sexual orientation of prospective parents in adoption proceedings, potentially to the extent that it could count against them, it still brought these families to attention as opposed to ignoring lesbian and gay couples all together. By 2000, Connecticut had adjusted their adop tion statute to bridge the gap of second parent adoptions by couples of the same sex. The discrepancy in the legal system that was highlighted by In re adoption of Baby Z motivated this change, but it also ensured that both joint and second parent adoption s were available to lesbian and gay couples. As of October 1, 2013, Connecticut removed the stipulation set forth in H.B. 5813 that the sexual orientation of prospective adopters could be considered in the adoption process. This change has made Connecticut one of the friendlier states toward same sex couples who are seeking to adopt. In terms of lesbian and gay couples being able to marry, most of the discussion began in 2004 when gay and lesbian couples were denied access to marriage licenses. Although th e state pa ssed civil unions in 2005 under PA 05 10, the couples who were seeking to have their relationships legally recognized were unsatisfied. This was evident in the continued pursuit of same sex marriage on the part of the couples and the subsequent c ase making it to the Connecticut Supreme Court (Kerrigan v. Department of Public Health). As of 2008, same sex marriage was legal in Connecticut and as of
133 2010 all civil unions that had occurred between 2005 and 2008 became legally recognized marriages und er Connecticut law. Connecticut solidified its position early on in discussions surrounding lesbian and gay couples being able to adopt and marry. As one of the more favorable states toward these couples, it exemplifies the process that states can go thro ugh in being friendlier toward the diversity of families. While it did take time to see these policies implemented, Connecticut did not face the roadblocks and opposition to marriage that was seen in California. Arguably, Connecticut had a relatively easy path toward securing the rights of same sex couples. States with Prohibitory Stances on Same Sex Couples Adopting and Marrying There are nine states that fall within the No/No cell of the typology. These states prohibit same sex couples from adopting and marrying. From these states, Mississippi and Utah have been selected for further investigation through the case studies. Based on the summary of the states from the previous chapter, Mississippi and Utah are similar in their political context and the numb er of same sex couples residing with in their borders, but their religious and racial/ethnic composition differ. Mississippi has written clause that cohabitating couples may not adopt, because they cannot marry. Mississippi As one of the southernmost states in the U.S., Mississippi tends to embody the perceptions that most have of the south. As a state that tends to be conservative and voted Republican in the 2012 President ial election, Mississippi tends to be viewed as both politically and socially conservative (Newport, February 3, 2012). In the 2012 election, 55.5% voted for Romney and 45.5% voted for Obama ( New York Times,
134 November 29, 2012 ) Further evidence of the cons ervatism of Mississippi can also be sexuality education, contraception, abortion, et c. (Guttmacher Institute, 2012: Guttmacher Institute, 2014). Mississippi is a highly religious state. More than 80% of the population identifies as Protestant, with 47% of the self identified Protestants identifying as Evangelical 11% self identifying as Mainline Protestant, and 23% self identifying as Historically Black Protestant ( Lugo, 2008 ) However, while t he state is religiously homogen ous, its racial and ethnic composition is rather diverse. Less than 60% of the population is white and the second largest racial group is African American (37%). While Mississ ippi is one of the least receptive states regarding extending benefits and securities to same sex couples, it does have a rather large population of gay and lesbian couples ( Gates & Cooke, 2010; Rodriguez & Gaitlin, May 20, 2013 ). There are 3,484 same sex couples residing in Mississippi as of the 2010 Census. This means that for every 1,000 households in Mississippi 3.1 of them are headed by either a gay or lesbian couple. Of the 3,484 couples residing in Mississippi, 895 of them are raising children. Based on these numbers, 26% of the same sex couples are raising at least one child
135 Figure 5 3. Timeline of a doption and s ame s ex m arriage i n Mississippi H istory of a doption Same sex couples are not permitted to adopt in Mississippi. This restriction is in place for couples who are looking to adopt jointly as well as those in which one of the partners is looking to adopt a child that has a biological or legal tie to the other partner. Mississippi is the only state that has it written i nto statute that individuals of the same gender cannot adopt children. This restriction prevents same sex couples as well as two individuals of the same sex who do not have a romantic relationship from jointly adopting. The Mississippi statu t e that restri cts same sex couples from adopting is Â§ 93 17 3(5 ) The legislature saw that this stipulation was included to restrict who was eligible to adopt in 2000 (Ball, 2007) This inclusion of same gendered individuals not being eligible to adopt in Mississippi ma de it the third state to place a restriction on same sex couples. Although it was the third state to place this restriction, it was the second to outright state that the sex/gender of the couple played a role in their ability to adopt. Florida was the firs t state to place such a restriction i n on same sex individuals and couples not being able to adopt as early as 1977 (Ball, 2007). At the time that this ban on same sex couples adopting was put in place, the ACLU released a statement noting that the ban wa s unconstitutional and would prevent out of state adoptions from being recognized in Mississippi (ACLU, March 7, 2000). The ACLU press release also sought to highlight the disparities between Mississippi and other states that held more favorable laws towar ds gay men and lesbians as parents. Weigand v. Houghton (1999) was a case that was cited to highlight this disparity. Mississippi courts had decided against a gay father having custody over his son, even than ideal. While the Mississippi
136 courts placed restrictions on the amount of visitation of the father, the case was reheard in California (where he resided) and custody was granted to him (ACLU, March 7, 2000). Thirteen years after the bill was signed i nto effect and limited adoption to heterosexual couples, the former governor has stated that he regretted his decision to sign the bill. Former Governor Ronnie Musrgrove signed the bill amid mixed reviews by religious denominations and supporters of the bi ll. Musrgrove now firmly believes that same sex couples should have the right to adopt and marry in Mississippi. History of r elationship r ecognition As one of the twenty nine states that has passed a constitutional amendment restricting marriage to one ma n and one woman, Mississippi has effectively banned same sex marriages (Human Rights Campaign January 14, 2014). In November 2004, Mississippi was a part of an eleven state sweep sex couples from marrying ( CNN Library May 31, 2012; Roberts September 30, 2004). Amendment 1 passed with an overwhelming majority of 86% of voters in favor of banning same sex marriage and only 14% opposed to the ban (Human Rights Campaign 2012). This Amendment is a fo llow up to legislation that was passed in 1997 stating that Mississippi would not recognize same sex unions performed in other states (Shapiro December 5, 2013). Since the passage of Amendment 1 there has been little discussion or concern over repealing t he ban on same sex marriage. In fact, in spite of other states seeing marked changes in their same sex marriage stance since the overturning of DOMA, Mississippi remains strong in its position on same sex marriage (Jan July 14, 2013). Based on historical trends as well as the political and social context in the state,
137 Mississippi will most likely be one of the last states to legalize same sex marriage (if it ever does) (Jan, July 14, 2013) Summary. As a state with a firm stance against extending rights to same sex ma rriage, Mississippi provides an interesting case for study. In fact, Mississippi was quite decisive in establishing its stance on lesbian and gay couples being able to marry se issues: (1) the adoption to couples of the opposite sex and (2) the passage of a constitutional amendment to restrict marriage to one man and one woman ( Ball, 2007; CNN Library, May 31, 2012; Roberts, September 30, 2004 ). In spite of the former governor spea king out regarding his regret in passing the amendment to the statute denying same sex couples access to adoption, there is little chance that Mississippi will alter its stance on eith er of these issues any time soon (Associate Press, March 22, 2013 ). Utah Mormonism and polygamy are often the two things that come to mind when referencing Utah. This is exemplified in Utah being the state with the highest portion of Mormons out of any sta te at 58%. The second largest religious faith is Catholics (10%) followed by Evangelical Protestants ( 7 %). While it may be argued that Utah is relatively diverse in its religious composition, the fact that it is skewed in the direction of Mormonism makes i t unique from other states The only other state that has a significant portion of the population that identifies as Mormon is Idaho (23%) ( Lugo, 2008 ) Every other state has less than 5% of the population that identifies as Mormon ( Lugo, 2008 )
138 The strong Mormon presence in Utah may also account for it s relative political conservatism. In the 2012 presidential election Utah voted Republican with more than 72.8% vo ting for Mitt Romney and 24.9% voting for Barack Obama ( New York Times, November 29, 2012 ) I n terms of the racial and ethnic composition of the populat ion, Utah is relatively homogen ous with 86.1% of the population identifying as white and all other racial categories are less than 6% of the population. While Utah may not be as accepting as other states are of LG couples adopting and marrying, they do have a number of same sex couples with or without children living in their jurisdiction. There are 3,909 same sex couples residing in Utah (Gates & Cooke, 2010) This means that 4.5 in every 1,000 ho useholds are headed by lesbian or gay couples. Of the 3,909 same sex couples, 20% of the m are raising children. This means that 786 couples are raising at least one child, if not more (Gates & Cooke, 2010) Salt Lake City is one of the cities with a popula tion of 1million that has the highest number of same sex couples raising children at 26% ( Rodriguez & Gaitlin, May 20, 2013). Figure 5 4. Timeline of a doption and s ame s ex m arriage i n Utah
139 History of a doption In 2000, legislation was passed that clarified who was permitted to adopt. Utah Code Ann. Â§ 78B 6 117(3) specifies that cohabitating couples may not adopt a child (Child Welfare Information Gateway, January 2012). The law specifies that a cohabitating coup le is one that lives together and is engaged in a r elationship of a sexual nature (Winters, January 24, 201 1 ). This statute effectively limits adoption to marrie d couples or single individuals. itly state that couples of the same sex cannot adopt. However, the statute does state that only married couples, a step parent, or single individual s may adopt (Marx, 2008) Same sex ma rriage is not legal in Utah which effectively restricts these couples f rom adopting as they would be considered cohabitating couples even if they were willing to get married in order to adopt. While the law does not state that single gay men and lesbians may not adopt, there is a strong preference to see that children are pl aced in households with married couples over single parents. Prior to the addition of the non may have been possible for cohabitating couples of the same and opposite sex to adopt. Considering the preferen ce that exists for children to be placed with married couples it is unlikely that they would be placed with a cohabitating couple and, if by some chance they were, the couple would most likely be heterosexual. In a 2011 survey, households in Utah were pol led on a number of issues pertaining to sexual orientation and whether or not certain rights should be afforded to lesbians and gay men (Lee, December 16, 2011). The results indicated that Utah residents held more favorable views toward housing and employm ent protections for
140 lesbians and gay men than they were of marriage and adoption laws. Of those polled, 52% were opposed to same sex couples adopting a child that they had no legal or biological ties to (i.e. joint adoptions) (Lee, December 16, 2011). Howe ver, respondents were more favorable of same sex couples adopting than they were of them marrying (65% opposed same sex marriage) (Lee, December 16, 2011). History of r elationship r ecognition On November 2, 2004, Utah passed a constitutional amendment th at restricted marriage to one man and one woman (CNN Library May 31, 2012). Constitutional Amendment 3 passed with 66% in favor of the amendment and 34% opposed (Human Rights Campaign 2012). The status of the ban on same sex marriage in Utah ha d gone unquestioned for almost ten years, until the Supreme Court overturned DOMA. On December 20, 2013, a Federal District Court Judge (Robert J. Shelby) d ban on same sex marriage was unconstitutional (Savage & Healy January 10, 2014) This decision led to an outpouring of opinions from those in support and opposition to this decision. Immediately following the ruling marriage licenses were distributed to more than 1,000 same sex couples; however, pending an investigation, same sex mar riages have been halted in Utah (Barnes Janu ary 6, 2014). In the meantime, President Obama has stated that the Federal government will recognize the marriages that were performed in Utah (Savage & Healy January 10, 2014) While the decision on the part o f Judge Shelby came prior to the end of 2013, the status of same sex marriage in Utah is at a standstill. For this reason, Utah has remained classified as a state that does not permit same sex couples to marry for the
141 purpose of this analysis. Arguably, Ut ah has the potential to become a battle ground state on same sex marriage, much like what was seen in California. Summary. The religious environment in Utah makes it a unique case to study in comparison to other states who hold similar views on same sex c ouples adopting and marrying. The Mormon Church has been extremely vocal in its stance against same sex marriage. It even went so far as to back supporters of Proposition 8 to see that same sex marriage was not legalized in California ( PBS, May 22, 2009 ). Almost identical patterns pertaining to the establishment of a stance on lesbian and gay couples adopting and marrying occurred in Utah as it did in Mississippi. 2000 saw the passage of the amendment to the Utah statutes that prevented unmarried coh abitants from adopting, thus preventing same sex couples from adopting jointly or constitution to restrict marriage to one man and one woman. The difference between Utah an d Mississippi only became apparent at the end of 2013 when Amendment 3 was declared unconstitutional by a Federal District Court Judge. The implications of this statement will be investigated further in the discussion section.
142 CHAPTER 6 DISCUSSION Family is an integral part of discussions pertaining to marriage and parenting The ability for couples to start a family is often marked as the next step in the progression of their relationship, following marriage. Couples who choose to adopt may do so because they cannot have children biologically or because they would like to provide a home for children who might not otherwise have one. This project sought to investigate the status of gay and lesbian couples as prospective adoptive parents. This investigation addressed state level analyses of U.S. adoption policy. The specific goals of this project were to: (1) establish a typology of ado ption policies for LG adopters on a state level, (2) conduct case studies of different cells in the typology regarding the history of lesbians and gay men adopting in a given state, and (3) comparing and contrasting the case studies for the selected states in the hopes of constructing an explanation for the present state of adoption law. I believe that this project has been successful in achieving those goals. This research has investigated the stances that all fifty states have taken on same sex couples ad opting the interaction between social attitudes and the law, the role that marriage may play in determining whether these coupl es have the right to parent, and other areas of interest that may explain the variation that we see in state policies. The Out look for Adoption by Lesbian and Gay Couples Almost half of the states permit same sex couples to adopt (n = 24, 48%) either jointly or through second p arent adoptions. This is in comparison to 34% (n = 17) of states that allow these couples to marry. With the exception of New Mexico, all the
143 states that permit same sex couples to marry also allow them to adopt. This is a relationship that should be explored further. Regionally, the majority of the states that permit same sex couples to adopt are located o n the eastern and western coasts. The states that fall in the middle and southern regions of the country are amongst the states that are least likely to permit lesbian and gay couples to adopt. These states are also more likely to be democratic states, alt houg h Colorado and Arkansas were republican states in the most recent presidential election. Similar patterns emerged in reviewing the states that did not permit same sex couples t o adopt. For the most part, these states tended to be political ly conservati ve and a larger number of states had high percentages of one particular religious denomination tha n were amongst the states that favored same sex couples being able to adopt. Beyond the regional and political similarities, there are a few commonalities between their demographic information amongst the states that favor allowing same sex couples to adopt. These states have a wide range of variation in their racial/ethnic composition, religious affiliations, and representation of same s ex couples with and without children. Although the population of same sex couples that reside in states is variable, it does provide a means for illustrating who would benefit from legal protections. As noted in Chapter 4, the p roportion of same sex coupl es, with or without children, in a given state provides insight to the need for policies that address their circumstances. The proportion of the population that is comprised of same sex couples or the sheer number of couples in a given state should not be the only point used to
144 advance the need for laws and social policies that address the legal recognition of parenthood and marriage; however, they do lend credibility to the arguments that may otherwise be made. It is especially compelling that the states t hat are least favorable toward same sex couples adopting are the ones with the largest percentage of same sex couples who are raising children (i.e. Utah and Mississippi) (Rodriguez and Gaitlin, May 20, 2013). To review the nation, as a whole, in terms of the state by state variation in policies toward same sex couples adopting is a rather daunting task. It is also difficult to make inferences about causal relationships and correlations. Instead, this portion of the analysis was simply looking for patterns in the data. It seems as if the typology provides a more precise means for making comparisons and establishing a more refined means of parsing out patterns amongst states with similar legal policies. The typology, and subsequent case studies, also make it possible to investigate patterns in the process that states took to achieving their current stance on same sex couples adopting. This method of process tracing may provide the opportunity to speculate what the outcome would be for certain states down the l ine, considering what paths states have taken thus far. Case Study Analyses In comparing the trajectories of the four states that were analyzed in the case studies, there were some patterns that emerged. These patterns will be discussed in terms of simila rities and differences between the states in the same cells (i.e. California and Connecticut) as well as making comparison across cells. While these patterns are not representative of every state in the respective cell of the typology they do provide
145 insig ht into the paths states take to determining their adoption policy and what the future may hold for states that do not currently permit same sex couples to adopt. States with Affirmative Stances on Adoption and Marriage California and Connecticut were am ongst the first states to extend marriage rights to same sex couples, even though this was short lived for California. Both of these states have established themselves as having legal policies that are favorable toward lesbians and gay men. What was intere sting about both of these states is that they established early on (2000 and 2003) their stance on same sex couples being able to parent. While the gay rights movement has been ongoing since the 1970s, the majority of the discussions pertaining to parentho od and marriage have occurred since the 1990s. To establish such firm and favorable stances at a relatively early stage set the tone for how these states would address issues of parenthood later on. In fact, there was little back and forth on the issue of lesbian and gay couples being able to adopt. For both states, the decisions regarding adoption were made in two or three major stance on same sex couples adopting. With regards to same sex marriage, both states experienced some back and forth in their policies toward relationship recognition before they reached their current stance. California presents an interesting case for review, especially i n light of the controversy surrounding same sex marriage and its constant state of flux. However, while California provides a multitude of information to analyze, I believe that it is a unique case. Specifically, that the events that occurred in California were manipulated at given points and time by those who were trying to make a statement or see that laws were shaped in a particular way. This is not to say that this does not and cannot occur
146 in other states, but California may be the exception in terms of the constant battle over Proposition 8 and the number of outside parties that get involved. Connecticut experienced some fluctuation in its stance on recognizing same sex relationships; however, it was not to the extent of what was seen in California and it was over the course of four years as opposed to the almost ten years that it took for California to solidify its stance. In both cases, it seemed easier and less controversial to solidify parental rights than it was to provide legal recognition of a relationship b etween two pa rtners of the same sex. This was evident in the two steps it took to solidify parent rights in comparison to the four or more steps it took to solidify the stance on same sex marriage. States with Prohibitory Stances on Adoption and Marriage Mississippi and Utah were selected for in depth analysis because they both had different approaches to exclude same sex couples from adopting. For Mississippi, this involved explicitly stating in statute that c ouples of the same gender could not adopt a child. In the case of Utah, this was done by stating that unmarried cohabitants could not adopt and as same sex marriage is not permitted this effectively excluded same sex couples from being able to adopt. Both of these states also have constitutional amendments that restrict the definition of marriage to being between one man and one woman. While the states took their own approach to restricting who could or could not adopt and marry, they were both decisive in their efforts. In fact, it took one move on each issue adopt and marry. For both states, their stance on lesbian and gay couples adopting was
147 determined through changes in the statutes in 2000 and their constitutional amendments were both passed in 2004, thus limiting marriage to opposite sex couples only. up until this point sex marriage is curre ntly being called into question, Mis sissippi is still firm in its stance on same sex couples adopting and marrying ( Jan, July 14, 2013 ). It is also interesting that there is not a greater push to see that same sex couples can adopt in these states considering they have some of the highest po pulations of same sex couples raising children in metropolitan areas. Although, the current discussions on same sex marriage in Utah may see a larger push on recognizing the parental rights of gay and lesbian couples, especially when the children of these couples get involved in the discussion (Shapiro, March 4, 2014). Implications of Case Studies Case studies are not meant to be representative of every case possible; however, they do provide more in depth information about a subject than might have been obtained otherwise. In this instance, the selection of cases that represent opposite ends of the typology illustrate not only the variation in perspectives on lesbian and gay couples adopting and marrying, but also the divergent paths that these cases have taken to reach their current legal and social stance. I do not believe that the same conclusions would have been reached using an alternative investigative method. It is unsurprising that the states hold such diverse opinions; however, the paths that the y took to establish their perspectives is of particular note. Specifically, the states with more favorable policies toward lesbian and gay couples adopting (California and Connecticut) took more time and multiple steps to solidify their positions. However, with
148 both Mississippi and Utah, state s with less favorable stances on lesbian and gay couples adopting and marrying, there was only one step necessary to establish their stance on these issues and it was within a limited time frame that this occurred. Whi le other states with more favorable views on LG adoption and marriage may not have taken as long or as ma n y events to establish their present stance, but they most likely had a greater degree of activity than their counterparts. It is somewhat surprising t hat the states with less favorable stances were so swift and decisive in their stances; however, it seems less likely that states would take the path of being supportive of sam e sex rights and then backpedal ing to being less supportive. It would be expecte d that the states would instead establish a less favorable stance at the outset and then move toward a more favorable stance, if they opted to do so. Although these cases studies are not representative of their respective cells in the typology they provide insight into the patterns and relationships that may exist on the state level in relation to establishing a stance on lesbian and gay couples adopting and marrying. Additionally, these case studies provide the stepping stones for future case couples as well as establish the foundation for future projects tackling these issues. What Holds the Mo st Sway: Social Attitudes or Legal Processes ? Nonet (1976) advocated on the behalf of a comprehensive approach to the Sociology of Law. He noted the importance of looking at the entirety of an issue, as opposed to focusing strictly on the social or legal aspects. The utility of this approach to the Sociology of L aw is that it offers the potential to see the spectrum of what may account for the present state of legal issues (i.e. what has shaped current adoption
149 laws) and what has and will cause them to change. One of the biggest questions that arise from this approach is whi ch has a larger impact: social attitudes or legal processes? After reviewing the general data that were collected on all fifty states and the in depth case studies I am not certain that there is a definitive answer to this question. I am inclined to believ e that social attitudes plays a significant role in the willingness of the general public to afford certain rights to lesbian and gay couples; however, this is something that cannot definitively be proven and there is also evidence that legal processes pla y a role in initiating changes With that being said, there are examples that illustrate that social attitudes have made a big push towards the present state of adoption and marriage rights that may be available to same sex couples. democratic state phenomenon of being more socially liberal (Cahn & Carbone, 2010) This is exemplified in their support for same sex couples being able to adopt and marry. However, when considering th e status of lesbian and gay relationships and parenthood in Mississippi and Utah, there are higher levels of religiosity and conservatism that would indicate a greater degree of opposition to homosexuality and, by extension, same sex marriage and parenthoo d. This opposition can be seen in the Mormon Church backing Proposition 8 in California in 2008, the backlash against the recent ruling on the sex marriage, and the speculation that Mississippi would b e one of the last states to see same sex marriage legalized (if they were ever to do so).
150 In terms of legal processes initiating changes in policies towards lesbians and gay couples, Connecticut has illustrated how events that were set into motion by the circumstances that pertained to a select few individuals has the potential to change the This is seen specifically in the cases of In re adoption of Baby Z (1999) and Kerrigan v. Department of Public Health (2008). Both cases pe rtained to life events specific to the parties involved, but they mirrored circumstances that families of similar backgrounds may have found themselves in. With both cases, there was no legal precedent for acknowledging two pare nts of the same sex or marriages between two men or two women. The ruling against the adoption of Baby Z highlighted the need to codify law that would address the changing diversity of families. It was from t his case that H.B. 5830 secured the ability for a co parent to legally adopt a child with the permission of the biological or legal parent. Similar circumstances were seen with Kerrigan v. Department of Public Health in which the case determined that couples of the same sex should have the ability to m arry in Connecticut just as any opposite sex couple who met the legal requirements to obtain a marriage license would. This case was the culmination of a four year endeavor on the part of eight lesbian and gay couples to see that they had the ability to ma rry. The distinction between marriage and civil unions was an important one and following the decision in Kerrigan, changes were once more made to Connecticut law to see that couples who had previously entered into civil unions, prior to the availability o f same sex marriages, would have legally recognized marriages under Connecticut law ( S.B. 899, 2000).
151 With both of these cases, it was legal processes that were motivated by the efforts of a small portion of the population that saw these changes come abou t. While public opinion may have been in favor of these changes, it seems as if the legal system made an effort to acknowledge changes in family diversity and provide legal recognition and protection for these evolving families. Both social attitudes and legal processes provide plausible paths for changes in the law and the acceptance of family diversity. It seems that the driving force explaining which are the strongest motivator s depends on the circumstances. In so me cases, advocates of social change may see that their actions play a larger role than a case on the same issue might. Ultimately, the path to change may come down to the timing, location, parties involved, and relative social context across the nation. While California may have always been poised to be a tipping point in the same sex marriage discussion, it was evident that the social action on the part of the mayor of San Francisco in 2004 was something that the state was not ready for. The timing was o ff. However, four years later, the legal change instigated with Proposition 8 highlighted that the timing was right, but that the path to change would not be through changing social attitudes, but through the legal processes of the judicial system. At this point, it is not possible to speculate that one path is more powerful than the other, but they each have their place and purpose in seeing that change occurs. The Link B etween Marriage and Parenthood The typology revealed that there are a range of combin ations of policies regarding whether or not same sex couples can adopt or marry. In the majority of states, same sex marriage is not permitted; however, the majority of states that permit same sex couples to adopt also allow them to marry. While the typolo gy does not
152 explicitly indicate that there is a relationship between marriage and the ability to adopt, it does open the door to explo ring this relationship further, especially in light of the common law tradition of using marriage as the standard for esta blishing legal recognition of parenthood (Harris, et al ., 2010). In reviewing the general data on all 50 states, as well as the data on the states in the case studies, there is some argument to be made for a relationship existing between the ability to ma rry and the ability to adopt. Preference is still given to couples who are married (sexual orientation aside) as it seems to imply a greater degree of commitment to one another as well as the relationship. A commitment that would then be extended to future relationships with adoptive children that might not be present in relationships where couples are cohabitating, regardless of the time commitment the adults have put into their relationships While more states are inclined to let lesbian and gay couples adopt than they are sex marriage sex marriage was recently declared unconstitutional and while this does not mean that same sex marriages will be occurring anytime soon it does require that they recognized out of state same sex marriages and it opens the door to further discussion ( Vilines, February 28, 2014 ). The discussion however may not have an impact on adoption policies, which are currently unclear. Future changes in state policies on same sex marriage in states that either prohibit or are unclear about LG adoption may provide the opportunity to further investigate the degree to which a re lationship exists between marriage and adoption on the part of same sex couples.
153 New York would provide an interesting case for investigating the relationship between adoption and marriage. Same sex couples can legally marry in New York as of 2011 and they can either jointly adopt or partake in a second parent adoption to secure their parental rights. While the state is favorable toward same sex couples on both adoption and marriage the understanding has typically been that even if a child is conceived wit hin the context of a same sex marriage with the intention of both parties co parenting that the non biological parent would need to adopt the child to secure their parental rights. A January 6 th ruling by a New York judge called this pattern of establishin g legal parentage into question when a lesbian couple petitioned to have one parent adoption (McKinley, January 28, 2014) birth cert ificate and they had been married since 2011 yet they wanted to make sure that both of them were legally recognized as parents. The judge ruled that it was not necessary for the adoption to occur because both women were legally considered to be parents und er New York law. Under New York law, any child conceived in the context of a marriage is considered to be the legally recognized child of both parents, even when assisted reproductive technologies may have been used to conceive (McKinley, January 28, 2014) This case mirrored family law case history pertaining to opposite sex couples in which the wife conceived from an extra marital relationship, but the child was legally considered to be the child of her spouse ( Michael H. v. Gerald D. 1989 ). This case pe rtained to a California law which held that any child that was conceived in a marriage was viewed as the child of the father, even if he was not the biological father (Harris, et al., 2010). While this is positive news for same sex couples who are married
154 and conceive children within their marriages, it is also nerve wracking because they are used to having to obtain adoptions and may be concerned for the recognition of their parenthood if they were to go out of state or do not have legal documentation of t he relationship (i.e. adoption records). This may be a circumstance that is unique to New York; however, it would be interesting to explore this relationship between adoption and marriage further. At this time, this relationship only exists in circumstance s where couples are seeking to obtain a second parent adoption and one parent is the biological parent to the child. It would not apply to circumstances in which married lesbian and gay couples are seeking to jointly adopt a child that neither of them has a biological connection to. The relationship between lesbian and gay couples having access to marriage and adoption is something to be explored further. The rash of changes that has been DOMA provide ample material to study this relationship with. This analysis would be especially insightful as traditionally conservative states such as Kentucky, Oklahoma, Texas, and Utah are seeing a push to recognize same sex unions (Eckholm, March 3, 20 14; Lang, March 6, 2014; Lindenberger, February 18, 2014; Vilines, February 28, 2014). The Future of Adoption by Lesbian and Gay Couples It is unclear whether there will be much change in adoption laws pertaining to lesbian and gay couples. Much of the dis cussions that are occurring address access to same sex marriage and adoption appears to be a secondary issue. However, because adoption deals with the placement of children and what is in their best interest, I would hypothesize that the laws would be incl ined to become more favorable toward placing children with lesbian and gay couples especially if research continues to indicate that
155 there are not negative effects of placing children in households with same sex parents. In light of the changes that have o or unclear regarding same sex couples adopting may see positive changes occurring sooner rather than late. Regardless of th e changes that may occur, much like same sex marriage, not every state will be inclined to implement more favorable policies toward same sex couples adopting, especially if the feel that the policy would go against the wishes of the general population of t he state. Research Contributions and Future Directions This project represents the initial stages of research on lesbian and gay couples access to adoption It is the foundation for understanding the legal processes that have led to present day adoptio n law as well as the social c ontext toward same sex couples being able to adopt. This project has the potential to shape our understanding of same sex couples being able to adopt and marry on an individual and societal level. Expanding the body of research on same sex couples being able to adopt gives a voice to this portion of the population and draws attention not only to the issues that these couples face, but also issues that may arise across the board in relation to adoption, marriage, and the defining of who is a family. The results of this project may have implications for how politicians and professionals approach matters relating adoption, marriage, and other legal benefits that may be afforded to same sex couples. Further contributions of this rese arch may be seen through statistical analyses of the data that was collected during the construction of the database to be able to make causal inferences that I am presently unable to make.
156 From this project, additional case studies may be conducted on particular states to further investigate the paths that were taken to establish their perspective on adoption (i.e. the history of LG rights in Florida, its implications on adoption law, and the present state of adoption i n Florida following the ruling in the Gil case). This project has also provided me with the understanding of legal and social processes that is necessary to conduct further research with prospective adoptive parents, social workers, adoption agencies, lawm akers, and other stakeholders who have a vested interest and experience with how the adoption system treats lesbian and gay couples who are seeking to become parents. Further down the line, research may also be conducted on lesbian and gay couples who adop ted to learn more about their experiences prior to adoption, during the adoption process, and after the child(ren) was placed with them (i.e. a longitudinal study that investigates experiences at 6 months, 1 year, 5 years, etc. post adoption). The potentia l for future research to evolve from this project is rather extensive and there are multiple paths that can be taken to further the utility of this project and its results.
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167 BIOGRAPHICAL SKETCH Melanie Duncan graduated from the Uni versity of Florida with a PhD in s ociology in which she specialized in the areas of Family and Law & Policy. Prior to attending the University of Florida, Melanie obtained her m s ociology from the University of Nevada, Reno in 2010 where her thesis focused o n attitudes toward same sex marriage. Melanie graduated Cum Laude with her b s ociology from California State University, Chico in 2008.