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
Mark Strasser*
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,
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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