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45 U. Kan. L. Rev. 49 (1996-1997)
Legislative Presumptions and Judicial Assumptions: On Parenting, Adoption, and the Best Interest of the Child

handle is hein.journals/ukalr45 and id is 61 raw text is: ARTICLES Legislative Presumptions and Judicial Assumptions: On Parenting, Adoption, and the Best Interest of the Child Mark Strasser* I. INTRODUCTION States may limit the ability of lesbian and gay couples to adopt children, either by explicitly precluding such adoptions outright or by precluding a child's simultaneously having two parents of the same sex. These preclusions have been alleged to further the important state interest of promoting the best interests of the child. Empirical evidence supports the opposite conclusion. Ironically, prohibiting lesbians, bisexuals, or gays from adopting, whether as individuals or as couples, may harm the interests of the child and the would-be parent(s) at the expense of an important state interest. Until courts and legislatures take their own stated aims and responsibilities more seriously, important, legitimate state goals will continue to be thwarted and children will continue to suffer. Part II of this Article examines the constitutional dimensions of the right to have children, comparing the rights of individuals to raise their own biological or adoptive children to the rights of individuals to raise the nonbiological, nonadoptive children in their care. While the Supreme Court has not recognized a fundamental interest in adoption, the Court has suggested that there is a legally cognizable interest in the relationship between nonbiological, nonadoptive parents and the children for whom they are responsible. Part III discusses how the best interests of the child standard has been used in some states to preclude lesbians, bisexuals, and gays from adopting while other states use the same standard to justify the legal recognition of same-sex partners as co-parents of the same child. Those states statutorily or judicially precluding lesbians, gays, and bisexuals from adopting, whether as individuals or as couples, have been willing to sacrifice the interests of children to further other, sometimes invidious, goals. This article is a slightly revised version of a chapter from the forthcoming book, LEGALLY WED: SAME-SEX MARRIAGE AND THE CONSTITUTION, by Mark Strasser, to be published by Cornell University Press in Spring 1997. Copyright 0 1997 by Cornell University Press. Used by permission of Cornell University Press.

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