"Minnesota Nice": A Comparative Analysis of Minnesota's Treatment of Adoption by Gay Couples
UNIVERSITY OF ST. THOMAS LAW JOURNAL
"Minnesota Nice": A Comparative Analysis of Minnesota's Treatment of Adoption by Gay Couples
Christian Eichenlaub 0
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ADOPTION BY GAY
CHRISTIAN EICHENLAUB *
Minnesota has long been a state at the leading edge of socially pro
gressive issues. It was the first state to offer troops to President Lincoln to
fight the Civil War. 1 The first modern sit-in protests occurred in Austin,
Minnesota, during the great depression.2 It was the first state to have a ma
jority of women seated on its Supreme Court.3 It was the first state to man
date a mix of ethanol in fuel to reduce the state's dependence on foreign
* J.D. 2008, University of St. Thomas School of Law; Senior Editor, University of St.
Thomas Law Journal (2007-2008); B.A. Marquette University. I would like to thank Wright
Walling for his guidance and support in writing this piece, as well as my mentor Amy Johnson for
her constant inspiration. Thanks also to the many tremendous editors at the Journal who helped
make this piece what it has become.
1. In 1861, "[o]n April 14, Governor Alexander Ramsey offered President Lincoln 1,000
men, making Minnesota the first state to offer troops to the Union. The first Minnesota regiment
left Fort Snelling on June 22." Minnesota Secretary of State, Minnesota Chronicle, http://
www.sos.state.mn.us/studentJrnnchron.htrnl (last visited Jan. 27, 2008).
oi1.4 It was the first state to establish a shelter for battered women dedicated
to preventing domestic abuse. s Just recently, it was the first state to elect a
Muslim representative to Congress. 6
Likewise, from as early as 1947, Minnesota has used the "best interests
of the child" standard to determine the suitability of adoptions and other
juvenile proceedings? The Minnesota Supreme Court stated early on that
"the welfare of the child ought to be the matter of paramount concern, to
which-in the event of conflict-every other interest must give way."s The
"best interests" standard has developed to encompass such factors as the
mental and physical health of all parties involved, the permanence of the
family unit, the child's cultural background, and, perhaps most importantly,
"the capacity and disposition of the parties to give the child love, affection,
and guidance."9 Integral to the judgment of what is in the best interest of a
child, both the Minnesota legislature and courts have "clearly supported a
policy favoring adoption or relative placement over long-term foster
care.'>lO This means that beyond all politics, beyond all moral theorizing, it
is best for a child to be placed in a suitable permanent adoptive home rather
than await his or her eighteenth birthday in the state's foster care system.
While there are certainly families and support systems in the foster care
system that strive to aid children in difficult situations, the courts have rec
ognized that foster care is not a preferable solution for the 7,338 children
who were in foster care in Minnesota as of 2003. 11 Many of these children
have emotional and physical needs requiring more attention than group
homes or other temporary placements can provide.
One example of such a special need would be children who identify
themselves as being gay. In a recent study of eight urban areas (including
Minneapolis), more than twenty percent of homeless youth reported them
selves as being gay.12 These youths have often fled families or foster care
systems that cannot or will not accept their sexuality, and physical and
emotional abuse is not uncommon for these children. 13 They are also twice as
likely as straight youth to have attempted to commit suicide while living on
the street. 14 There is clearly a need here that is not being addressed.
In the end, how progressive is Minnesota when it comes to adoption
policy? This article will compare Minnesota's treatment of adoption by gay
couples to that of other states. States have created various legislative solu
tions in the face of the growing desire in the gay community to raise and
support families. On one extreme, gay citizens have been banned from
adopting at all. This is the solution Florida has put into place, and as the
harshest policy it will be examined first in this article. Along those same
lines, but perhaps less draconian, are states such as Utah, which use mar
riage or cohabitation as adoption standards, also effectively barring gay
couples from adopting. Similarly, in 2004 the Oklahoma legislature
changed the state's adoption laws to bar recognition of an adoption by any
gay couple, even if it were done in another state. This amendment, how
ever, was quickly found unconstitutional by the federal courts.
Moving along the middle of the continuum, this article will then ex
amine the stance of many states, such as Minnesota, which have completely
avoided the issue of gay adoption, leaving the door open for gay couples to
adopt as the courts might allow. Finally, this article wi11100k at states on
the far opposite extreme from Florida, such as New York and New Jersey,
which have undertaken measures to assure that would-be gay adopters will
know that they will be treated equally under the law. Based on the evalua
tion of these various state policies, I will suggest changes to Minnesota's
adoption policies that would help the state to better pursue the best interests
of the child.
The premise of this article is that adoption by gay couples is positive
for communities and that having an increase in adopting families would
result in a decrease in the amount of children in foster care around the
United States. The purpose of this article is not to prove this premise, which
is a social science argument with moral and scientific ideas creating strong
reactions on both sides. 15 The basis for this argument is that the foster care
system is not a permanent solution for children. With so many children in
foster care in the state of Minnesota, until it can be proved that allowing gay
couples to adopt jointly is detrimental to child development, the best inter
est of the child must remain paramount to this debate, and whatever can be
done to put those children into permanent loving homes should be done. 16
Enabling more gay couples to adopt children is one suggestion to start solv
ing this foster care dilemma. 17
STATES THAT BAN ADOPTIONS BY GAY PERSONS
The most extreme example of the treatment of gay couples in adoption
law would be any state that denies any gay person, singly or jointly, from
adopting a child. Florida is currently the only state in the Union with such a
policy-banning adoption by any person who is homosexual. 18 This restric
tion was enacted in 1977, as Anita Bryant and her organization, Save Our
Children, Inc., tried to quash the early stages of the gay rights movement. 19
Rather than focusing on any substantive reasons why gay adoption might be
detrimental to the best interests of children, in enacting the ban the legisla
ture seemed to be trying to send a political message.20 One legislator
16. In re Adoption of Charles B., 552 N.E.2d 884, 889 (Ohio 1990) (quoting State v.
Summers, 311 N.E.2d 6, 13 (Ohio 1974)
Permanent placement in a judicially approved home environment through the process of
adoption is clearly preferable to confining the child in an institution or relegating the
child to a life of transience, from one foster home to another, until such time as the
certified organization determines that it is proper to give its consent to an adoption.
Id. (Ohio Supreme Court opinion allowing for the adoption of an eight-year-old boy to his coun
selor even though the counselor was homosexual)).
17. Out of deference to the Catholic nature of the publication in which this article is being
printed, it is important to note that the Catholic Church stands firmly against adoption by gay
couples, saying specifically that it is "gravely immoral" and would do "violence" to the children.
Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal
Recognition to Unions Between Homosexual Persons (July 31, 2003), available at http://
rc_con_cfaith_doc_20030731_homosexual_unions_en.html. It is interesting to note that such a
statement was made in a document arguing not for the advocacy of children, but rather against the
political recognition of gay couples. This "means to an end" approach to gay adoption has itself
been considered "immoral." Ball, supra note 15. Even so, Catholics, and certainly Catholic aca
demic institutions and their publications, have the pronounced ability, if not duty, to disagree with
the Catholic Church on issues of political conscience. After all, the Church, in its beauty and
wisdom, has been known to be wrong from time to time. And in this case, even some Catholic
social service agencies, including that of Minneapolis, have found ways to "refer out" gay pro
spective parents rather than deny them access completely, effectively skating the Vatican's stance
on the issue. Advocate.com, San Francisco's Catholic Charities Develops Plan to Allow Adop
tions by Gays, Aug. 4, 2006, http://www.advocate.com/news_detail3ktid35109.asp. See also
Bonnie Miller Rubin, Are Gay Adoptions Shaping Up as the Nation's Next Culture Clash? CHI.
TRIBUNE, Mar. 20, 2006, at 1.
18. FLA. STAT. § 63.042 (2003) (later Florida case law has defined "homosexual" as "one
who practices homosexual acts," rather than a person of homosexual orientation); David L. Hud
son Jr., Court Won't Tie Lawrence to Gay Adoption Law, ABA J. E-REP. (Feb. 6, 2004).
19. Ball, supra note 15, at 383.
20. Id. The use of this issue as a political wedge rather than looking toward the best interests
of the child is not uncommon when it comes to legislative consideration of adoption by gay
couples. In the case of the adoption bill passing through the Colorado legislature in April 2007,
while the side supporting progressive adoption rights for gay couples focused on the "best inter
ests of the child," ("Sen. Jennifer Veiga, D-Denver, said children are already living in same-sex
households and having two legal parents would make them eligible for such benefits as health
insurance benefits and Social Security payments. She also said it would allow the state to require
wished to express "to homosexuals that '[w]e're really tired of you. We
wish you would go back in the closet.' "21
If one is, for the sake of argument, to accept that gay households are
detrimental to children, the logic of the Florida ban is most puzzling when
considering that the state has continually allowed gays to become foster
parents.22 While the foster care system itself seems to be languishing in a
series of "glaring failures,"23 the gay caretakers seem to have been among
the better foster parents?4 If the reality behind Florida's ban on gay adop
tion was that the legislature was trying to keep vulnerable children "out of
harm's way" by keeping them out of gay homes, then why do the state's
social service agencies seem to be trusting, without hesitation, the most
vulnerable of children with gay couples?
On the other hand, if this were simply a political means for assuring
that the state continues to refuse recognition of gay couples, then, and only
then, has the state statute served its purpose. In a thorough examination of
this issue, Professor Carlos Ball labels this "means to an end" treatment of
adoptable children as "immoral. ,,25 Other authors continue to question the
constitutionality of Florida's ban after Lawrence v. Texas?6 Even the
child support payments if the couple breaks up.") the opponents were far more concerned about
the political statements being made ("What's involved here is the symbolic politics of asking
Colorado to endorse same-sex households as the same as any other family," said Sen. Shawn
Mitchell, R-Bloomfield. Similarly, "Sen. Dave Schultheis, R-Colorado Springs, said he feared that
allowing gay adoption would pave the way to a judge deciding that same-sex couples should be
allowed to have civil unions."). Colleen Slevin, Gay Adoption Bill Advances in Senate, CBS 4
DENVER, (Apr. 11, 2007), http://cbs4denver.comlpolitics!local_story_l01192846.html. In the end,
''[i]t's hard to find a respected children's organization that is opposed to gay and lesbian parent
adoptions. You don't see children'S advocates opposing [these adoptions]." Julie Brienza, Joint
Adoptions by Gays are Put on Even Ground with Heterosexual Couples, 34 TRIAL 98, 98 (Mar.
1998) (quoting Michael Adams of the American Civil Liberties Union's Lesbian and Gay Rights
Project in New York).
21. Ball, supra note 15, at 383 (quoting Lofton v. Sec'y of Dep't of Children & Family
Servs., 377 F.3d 1275, 1303 (11th Cir. 2004) (Barkett, J. dissenting from denial of en banc
22. Id. at 386-87.
23. Id. at 385.
24. As evidenced at least by the cases appealing this statute, one of which, Lofton, ended up
denying Steven Lofton an adoption of several children with HIV he had raised from infancy.
Lofton was, in fact, not only awarded for his excellent care, but an agency named the award after
him and his partner. Brief of Appellant at 7, Lofton v. Sec'y of Dep't of Children & Family
Servs., 377 F.3d 1275 (11th Cir. 2004) (No. 01-16723-DD). Similarly, Curtis Watson and his
partner took in a young woman who had been in 17 foster care homes in two months. The trans
formation in their home was "remarkable," and while a district court judge could not order an
adoption, they received long-term custody of the girl. The court further suggested that the men be
used to train future foster parents. Curtis Krueger, Gay Dads Get Daughters Plus Praise from
Judge, ST. PETERSBURG TIMES, Sept. 9, 2004, at lA.
25. Ball, supra note 15, at 385.
26. Christopher D. Jozwiak, Lofton v. Secretary of the Department of Children & Family
Services: Florida's Gay Adoption Ban under Irrational Equal Protection Analysis, 23 LAW &
lNEQ. 407, 412 (Summer 2005); Jenni Hetzel-Gaynor, Note, What About the Children? The Fight
for Homosexual Adoption After Lawrence and Lofton, 51 WAYNE L. REv. 1271 (Fall 2005).
American Bar Association does not support the Florida law?7 however, the
ban's supporters continue to defend it with the same circular logic: "[This
case] validates Florida's 'conclusion that it is in the best interest of adopted
children, many of whom come from troubled and unstable backgrounds, to
be placed in a home anchored both by a father and a mother,'" said Florida
Governor Jeb Bush after the 11th Circuit rejected the constitutional chal
lenges to the Florida ban.28 And so the "troubled and unstable" children
involved in those legal challenges returned to their foster care homes-the
homes of homosexual Steven Lofton and his other plaintiffs-where they
can live indefinitely as foster children but never be adopted by those par
ents.29 In the end, all the ban accomplishes is assuring that these children
cannot be adopted by the families that have taken them in, forcing them to
forfeit the comfort of a stable legal home and the knowledge that they can
be secure in their homestead. From a legal standpoint, they will not have the
opportunities to inherit, to recover from a wrongful death, or to receive
child support, and medical and educational decisions will be left up to the
state, rather than the loving family with whom the state has otherwise en
trusted their care?O The "best interest of the child" seems to have been left
far, far behind.
Regardless of the rationale used in Florida, the same legislative tech
nique of banning gay persons from adopting was also tried in New Hamp
shire. In 1987 the New Hampshire legislature enacted a ban similar to
Florida's, different only in that it also banned gay persons from providing
foster care. 31 The New Hampshire ban seemed much more rationally bound
to the best interests of the child than the Florida ban, with the legislative
intent of the document stating "that being a child in [foster care or an
adopted family] is difficult enough without the added social and psycholog
ical complexities that a homosexual lifestyle could produce."32 Even though
the ban was better grounded in the best interests of the child than the Flor
ida ban, the New Hampshire legislature repealed it in 1999, allowing any
individual in the state to adopt. 33 This last year, New Hampshire passed
civil union legislation34 which, while passed for political reasons, will have
a positive effect on the best interests of children, allowing gay couples to
27. Hudson, supra note 18.
30. Ball, supra note 15, at 392.
31. N.H. REV. STAT. ANN. § 170-F:6 (repealed 1999), N.H. REv. STAT. ANN. § 170-B:4
32. N.H. REV. STAT. ANN. § 170-F:6, Legislative intent; exclusion of homosexuals. 1987,
343:1, eff. July 24, 1987.
33. N.H. Session Laws, ch. 18, H.B. 90 (1999).
34. Pam Belluck, New Hampshire Adopts Same-Sex Unions, N.Y. TIMES, June 1, 2007, at
jointly adopt and give their children the protection of two parents recog
nized by the state.
STATES TBA.·:LBA~ GAY COUPLES FROM ADOPTING, BUT ALLOW
SINGLE GAY ADOPTERS
Looking west to the statutes of two other states, we see examples of
laws that are improving, even if still questionable in their ultimate effect on
the "best interest of the child." First, the state of Utah will allow an adop
tion to a "single adult," so long as that person is not "cohabiting in a rela
tionship that is not a legally valid and binding marriage under the laws of
5 Likewise, in 2004
Oklahoma amended the state's adoption
laws, barring the recognition of an adoption to "more than one individual of
the same sex."36 Even though that amendment was subsequently found to
be unconstitutional,37 the ultimate effect of both of these laws was to de
prive children of available two-parent homes, rather than saving them from
any plight that might result from adoption by gay citizens.
Because of the unique population of Utah, the proscription against
adoption by cohabitating non-married couples seemed to be made not out of
anti-gay animus, but out of concern about placement of children with "po
lygamous clans and with non-marital couples."38 "It was intended that these
changes would preclude the placement of children with unmarried couples,
same sex or heterosexual, monogamous or polygamous."39
In a 2007 addition to the adoption statute, the Utah legislature passed
an amendment stating that a child must be placed "with a man and a woman
who are married to each other" unless (a) there are no married couples
ready, willing and able; (b) the child is placed with a relative; (c) the child
is placed with a person who has already developed a substantial relationship
with the child; or (d) the child is placed with a person selected by a biologi
cal parent.40 This amendment reiterates the preference for married hetero
sexual couples but also creates some interesting facets to the law. While the
language barring non-married cohabitating couples from adopting remains
unchanged, there now emerges the possibility that a single gay person could
be given the same preference in adoption as a married couple if that person
was either selected by a birth mother, if he or she had a "substantial
rela35. UTAH CODE ANN. § 78-30-1 (2007).
36. OKLA. STAT. ANN. tit. 10, § 7502-1.4 (West 2007).
37. Finstuen v. Edmondson, 497 F. Supp. 2d 1295 (W.D. Okla. 2006), aff'd, 496 F.3d 1139
(10th Cir. 2007).
38. Scott B. Clark, Married Persons Favored as Adoptive Parents: The Utah Perspective, 5
J.L. & FAM. STUD. 203, 204 (2003).
40. 2007 Utah Laws (B.B. 343).
tionship" with the child before the adoption proceedings began, or if he or
she was related to the child. Additionally, if no married couples were
"ready, willing and able" to adopt-which the 2003 Utah legislature itself
admitted is often the case41-then a single gay adopter would not be barred.
Still, the adoption would have to be found to be in the "best interests of the
child," which would, as a judicial determination, likely bar him or her from
adopting in many of the judicially conservative areas of Utah. But at least
now the legislature, knowingly or not, has provided some legal cover for a
gay person to make an argument to be allowed to adopt.
The other addition in the 2007 amendment was language indicating
that preference for married couples should be given in foster-care place
ments as well. In many ways this ban on non-married adopters and the new
preference for foster-care placements with married couples is more coherent
than the Florida law. It continues to focus on the stability of the children
affected by such placements. With the 2007 legislation, Utah has recog
nized that "foster families [are] always in short supply" (2,500-3,000 chil
dren are wards of the state)42 and allows for gay couples to have a fall-back
position in the system, as degrading as they may feel that is to their
Whatever the reason for passing the law prohibiting adoptions by un
married cohabitating couples, there can be no doubt that there is a disparate
effect on gay couples, and thus the children they could potentially adopt.43
Unmarried straight couples can easily get married if they so desire. Indeed,
the impetus of the state mandating marriage in order for them to adopt may
just compel a straight couple to "tie the knot." However, there is currently
nothing that a gay couple can do to circumvent the prohibition set by the
Utah legislature. Even getting married in Massachusetts, the only state cur
rently allowing gay couples to marry, would not satisfy that statutory re
quirement that the relationship be a "legally valid" marriage "under the
laws of this state."44 The reality for children needing homes, then, is that
this gay couple cannot adopt them under any circumstances.
All the while recognizing the necessity for more families to take care
of children in need, Utah has allowed its law to overextend the legitimacy
of being in the best interest of the child. Even if a preference for married
couples stays in place, the ban on non-married adopters who are cohabitat
ing makes little sense when paired with the prohibition of gay marriage in
41. Clark, supra note 38, at 204.
43. Consider a 2008 proposed law in Mississippi which would mirror the Utah law but was
intended specifically to prevent gay couples from adopting. Mississippi State Representative Phil
lip Gunn said, "We want to be careful not to be overly broad, but clearly we don't need to
encourage or allow in my opinion homosexual couples to adopt in Mississippi." Jon Kalahar, Bill
Would Prevent Unmarried Couples from Adopting, WBLT3 (2008), http://www.wlbt.comJGlobalJ
44. UTAH CODE ANN. § 30-1-2 (1953).
the state of Utah. It forces potential gay adopters to either adopt singly,
depriving the child of a two-parent household, or not adopt at all, depriving
the child of a permanent home altogether. Whether marriage is allowed for
gay couples or the ban is lifted, while the two exist together, it cannot be
said that the law is in the best interest of the children of the state.
At first glance, Oklahoma's adoption laws seem to allow any single
person to adopt without reference to the adopter's sexuality45-a law that is
no better or worse for children than many other states. However, in 2004,
Oklahoma's legislature added a caveat to the law that governs adoptions of
foreign children, stating that no agency of the state may "recognize an
adoption by more than one individual of the same sex from any other state
or foreign jurisdiction."46 This, of course, not only applied to gay couples
adopting from outside the country, but also to any couple who had legally
completed the adoption process in another state.
Oklahoma's new statute has some rather obvious issues to it. Beyond
being attacked as immoral for using children to a political end, with the
effect of denying them a legal two-parent home,47 the law was questionable
under the equal protection argument set forth in Romer v. Evans.48 One
author argued that the statute violated the Parental Kidnapping Prevention
Act ("PKPA"), a federal mandate that supersedes Oklahoma's law under
the Supremacy Clause.49 Finally, and perhaps most persuasively, as adop
tion decrees are final judgments, they are entitled to the same full faith and
credit protection as any other type of judgment.50 Thus it was only a matter
of time before "the Oklahoma statute would be found to be unconstitu
tional."51 This was, in fact, the same conclusion that the Oklahoma Attor
ney General came to before the statute was even passed.52 Lambda Legal, a
gay rights legal organization, then brought suit on behalf of three adoptive
families in 2006 and the Federal District court found that the statute
vio45. OKLA. STAT. ANN. tit. 10, § 7503-1.1 (West 2007).
46. OKLA. STAT. ANN. tit. 10, § 7502-1.4 (West 2007).
47. See Ball, supra note 15, at 383.
48. 517 U.S. 620 (1996). In Romer the U.S. Supreme Court invalidated a statute "born of
animosity" with no rational relation to a legitimate government purpose. It was a statute which
named a discrete class of individuals and marked them for legal discrimination. [d. at 621.
49. In contrast to many cases holding to the contrary,
[n]o cases exist holding that an adoption is not a custody determination within the mean
ing of the PKPA. Thus, if [another state makes a final adoption determination] then all
other states must recognize that decree. The Oklahoma statute, which would refuse to
recognize such adoptions, therefore violates the Act and is unconstitutional under the
Robert G. Spector, The Unconstitutionality oj Oklahoma's Statute Denying Recognition to Adop
tions by Same-Sex Couples from Other States, 40 TuLSA L. REv. 467, 474 (2005).
50. [d. at 475.
51. [d. at 477.
lated the Equal Protection, Due Process, and Full Faith and Credit clauses
of the Constitution.53
Beyond being a rather large incentive for gay families to refrain from
moving to Oklahoma,54 some adoptive couples were concerned about the
prospect of even traveling through Oklahoma.55 Even as Florida's adoption
laws are severe in regards to the potential for children to be adopted by gay
couples, that state has not made any legislative efforts that would seem to
deprive legally adopted children from visiting Disney World with their gay
parents from the protections of that household. Interestingly, in both the
district and appellate court cases regarding the three families involved in
litigation against the 2004 amendment, the State failed to articulate a clear
statement as to the way in which the "non-recognition clause" served the
best interests of the children of Oklahoma. 56 And while the Federal District
Court and the Appellate Court affirming the decision have eliminated this
questionable use of statutory power, Oklahoma's adoption statutes are now
left in the same condition as many states: Gays may adopt singly but dare
not try to provide their children with the protections of two legal parents.
STATES WITH NONSPECIFIC LAWS REGARDING GAYS AND ADOPTION
Many states have either taken a policy of benign neglect regarding
adoption by gay couples, leaving the ultimate decisions up to the courts, or
simply ignored the issue altogether. As Minnesota is the ultimate focus of
this article, I will discuss the outcome of such legislative inaction, and then
after reviewing two more treatments of the issues in other states, conclude
with suggestions on bringing the Minnesota system more in line with the
values of "Minnesota nice."
While adoption by gay couples was unheard of in the U.S. until as
recently as 1987,57 Minnesota has been willing to allow "any person" to
adopt since 1951, if not earlier. 58 For Minnesota, and many other states, the
issue of sexual orientation has never entered into the legislative qualifica
tions for the "best interest of the child" in adoptions.59 Compared to states
such as Florida or Utah, this standard seems extremely progressive: "In
effeet then, any person may adopt . . . whether the person be married or
single, male or female, minor or adult, of whatever race, creed or color.,,60
And while at least one judge felt that this left her "without discretion" to
deny a single gay man an adoption,61 many judges may not feel the same.
This also leaves open the question as to whether a joint petition may be
granted to a gay couple, which is a difference that can save prospective
families thousands of dollars in legal fees, court costs and social services.
In Georgia, a state with comparable statutes to Minnesota as to who
may adopt a child,62 the question of judicial discretion in adoptions by gay
couples has conflagrated one adoption matter into "two conflicting court
orders, two contempt citations, a State Bar complaint, and a possible habeas
action."63 Elizabeth Hadaway attempted to adopt Emma, a seven-year-old
child of a friend who could no longer care for her.64 Hadaway filed her
adoption petition singly, even though she had a long-time lesbian partner,
because Georgia's statutes only explicitly allow married couples to adopt
together.65 Although Hadaway had already been granted physical custody
by one Wilkinson County Superior Court judge, when the adoption petition
for legal custody was heard by another judge of the same district, Judge
John Lee Parrott, the petition was denied.66 The denial was based upon the
perception that although Hadaway had filed singly, "viewing the instant
case on its substance and not its form" Judge Parrott thought it clear that
Hadaway intended to raise Emma with her same-sex partner, and the Geor
gia statute did not allow for that type of "subterfuge."67 Judge Parrott or
dered Emma back to her biological mother or in the alternative for the state
to take custody of her.68
When Emma's birth-mother subsequently refused to take her daughter
back, Hadaway kept Emma and moved to another county to seek a more
favorable forum for her adoption.69 In Bibb County, Hadaway's lawyer
went to Superior Court Judge Tilman Self III and spent forty-five minutes
on the record informing him of the situation.70 In the end, Judge Self ruled
in favor of Hadaway's petition, finding that it was in the best interests of
Emma to be with Hadaway rather than in foster care.71 As to the issue of
Hadaway's sexuality and her lesbian partner, Judge Self wrote, "This Court
declines the temptation to weigh in on what, if any, effect a party's sexual
preferences should have on a Petition for Change of Custody."72
When Judge Parrott discovered that Hadaway had not turned over
Emma as he had ordered and had gone to another county to circumvent his
jurisdiction, he ordered the county Division of Family and Children Ser
vices to take Emma and held both Hadaway and her lawyer in contempt,
sentencing them to ten days in jail and filing a complaint with the state bar
against the 1awyer.73 Although the jail time was later stayed, Emma was
placed in foster care, despite an evaluation by Child and Family Guidance
(the county agency evaluating adoptions) that determined Emma was in
need of more individualized attention due to her abandonment issues and
that a placement with Hadaway would have been in her best interests.74 The
matter has now become one of conflicting jurisdictions, and continues to be
fought in the state court system.75 As for the best interests of Emma, until
this issue is resolved, she remains in her court-ordered foster care
While gay couples in Minnesota may feel a bit more insulated from
anti-gay prejudice because of the state's relative tolerance, a case such as
Hadaway's is very possible given the ambiguous state of the law. With no
solid assurances that this sort of nightmarish legal battle would not be nec
essary in Minnesota's courts, there can be little doubt as to why a gay
couple would be hesitant to try to adopt. Even if there were agreement
among Minnesota jurisdictions as to whether gay couples may adopt singly,
there is still the question as to whether an adoption may be granted to a gay
couple. While the need for joint adoption by a gay couple versus adoption
by only one partner may not seem to be immense, one American Law Re
port "cautions" practitioners that "failure of a partner to adopt a child in
cases where two same-sex partners have raised and cared for the child often
result in the nonbio10gica1 caregiver's loss of custody in the absence of a
legally recognized relationship to the child.'>?? Just such a case has arisen in
Minnesota, leading to a protracted fight not over gay adoption, but over
third-party visitation rights.
When Marilyn Johnson adopted two daughters from China, her partner
Nancy SooHoo had always intended to adopt the children as welI,78 John
son was the original adopter because her employer offered adoption tax
credits, which SooHoo's employer did not.79 Why didn't the couple adopt
the children jointly? Most likely because they did not know if that was an
option. Now that the couple has split up after twenty-two years together,
they are embroiled in a legal fight over visitation time with the children-a
fight which went all the way to the Minnesota Supreme Court, which de
cided that SooHoo could legally be afforded visitation rights. 8o If the law
were clearer in its application to gay and lesbian couples, this legal struggle
might have resulted in a shared-custody arrangement at the district court
level, rather than a protracted, emotional, and expensive legal fight.
As with many other states, there is an incredible void in the Minnesota
case law dealing with joint petitions from gay couples.81 Some may not be
surprised by a lack of case law in this area, as adoption law is one of statu
tory creation,82 but the statute is similarly devoid of any references as to
how to deal with this situation, other than that any adoption must be in the
"best interests of the child."83 This article is the first printed in a law review
to evaluate Minnesota law in regard to adoption by gay couples. 84 In web
sites listing states with progressive laws for adoptions to gay couples, multi
ple sites conclude that while some Minnesota counties (such as urban
Hennepin or Ramsey) have allowed adoptions to gay couples, the issue re
mains unclear. 85
Minnesota is not alone in having an unarticulated and ambiguous pol
icy toward adoption by gay couples. The Liberty Counsel lists thirty-seven
other states with "unclear" policies regarding second-parent same-sex
tions, including Arizona, Delaware, Maine, Maryland, Montana and Rhode
Island. 86 These policies not only have the positive effect of allowing judi
cial discretion for judges in liberal areas to grant joint petitions to gay
couples without much oversight, but also the weakness of allowing that
same discretion to judges who may not be so progressive in their views of
the "best interests of the child." This has led to a lack of consistency
among, and even within, state jurisdictions, much like was seen in the
Hadaway case out of Georgia. 87 In a short film called "Finding Family: Gay
Adoption in the U.S.," John Ireland surveyed the laws of the fifty states and
concluded that, "I see an overwhelming percentage of space where secrecy,
ambivalence, and even animus toward our families prevent us from protect
ing our loved ones.,,88 This article will conclude, after reviewing the posi
tive policies of other states, with suggestions for the state of Minnesota and
any other state that might wish to dispel the fog of secrecy, ambivalence
and possible animus from its adoption laws to further the best interests of
children by enabling and encouraging adoptions by gay couples.
There are a handful of states that have modified their adoption laws in
the last decade to accommodate the best interests of children who have
been, or potentially could be, adopted by gay couples. i'\s part of Califor
nia's 2001 addition of "domestic partnership" laws, a domestic partner is
allowed to adopt the legal child of his or her partner.89 Similarly, Vermont
chose to use the term "partner" in allowing a gay person to adopt his or her
significant other's child.90 Connecticut enacted legislation in 2000 explic
itly recognizing second-parent adoptions.91 The District of Columbia, Illi
nois, and Massachusetts have all judicially recognized joint petitions by
couples wishing to adopt together.92
Additionally, New Jersey and New York are worth reviewing because
of the progression of both the judicially-created law and the statutes in
those states with regard to granting adoptions to gay couples. As the rest of
the country seems to be slowly moving in this direction, it is valuable to
study the development of adoption law in those states.
New Jersey is an interesting study in the slow progression of policy
and law that has made the state easier for gay adopters, who are then more
likely to adopt children in need. New Jersey was the first state in the nation
to address joint petitions by same-sex couples.93 A class-action lawsuit
arose in 1996 against the Division of Youth and Family Services (DYFS),
the state's social service agency.94 Before the complaint was brought, while
a married couple was required to adopt jointly, non-married couples had to
take an individual approach that many other states continue to require: first
one partner goes through the adoption process, then the second proceeds
with a second-parent or step-parent adoption.95 This process can be not only
more time consuming but also costly, especially if a separate home study is
required. 96 Under a settlement agreement made between the plaintiffs and
DYFS, a gay couple is now allowed to adopt jointly97 and DYFS must
apply the same standards to gay couples as it does straight couples.98 While
the settlement dealt with the state's social service agency rather than the
court system, it was nonetheless an important step toward equity for adop
tion by gay couples. As an interesting retrospect, shortly after the decision
was made, conservative groups predicted that the settlement would result in
adopted children suing the New Jersey government for placing them in the
homes of gay couples.99 More than ten years later, there are no reports of
such lawsuits being made.
The New Jersey Superior Court was also one of the first state courts in
the nation to determine that, if a placement is found to be in the best inter
ests of a child, a petitioner should be able to adopt even if he or she is
homosexual. 100 That case came even before the settlement with DYFS, and
the pairing of precedent with policy has made New Jersey one of the most
adoption-friendly states in the country for gay couples. WI In a change that
will continue that trend, at the end of 2006 the New Jersey legislature
passed the Equal Benefits Act at the behest of the New Jersey Supreme
Court. 102 The language in that legislation changed the adoption law to man
date that a person with an "equal benefits contract" (a civil union) either file
jointly with his partner or get his partner's written consent for the adop
tion. l03 This ends any question as to the ability of gay couples to adopt
jointly, as the language of this new law makes it clear that there is to be no
difference in court treatment between "contracted" couples and those who
While the New York adoption statute clearly states that adoptions may
be made by an "adult unmarried person or an adult husband and his adult
wife together,,,104 decisions from New York's highest court have en
couraged a "departure from a strict reading of the adoption language"105
when "satisfied that the best interests of the . . . child will be promoted
thereby."106 In the case of In re Jacob,107 the Court of Appeals of New
York creatively interpreted the governing domestic relations law, finding
that the term "together" in the statute was intended only to "insure that
one spouse cannot adopt a child without the other spouse's knowledge or
over the other's objection."l08 The court declined to preclude unmarried
partners from petitioning together simply because it was not required that
they do so. This, the court concluded, would "[e]ndow the word 'to
gether' as used [in the statute] with the overpowering significance of en
forcing a policy in favor of marriage.,,109
This holding was then used in 2000 to allow for the adoptions by gay
couples of an unrelated child in In re Adoption of Carl.110 In that case, a
New York Family Court found that the adoption statute "does not expressly
prohibit" unmarried partners from jointly adopting together. 111 The court
stated that denying the joint petition only because the petitioners were un
married would "create a family with two unmarried parents only one of
whom would be allowed to formalize his or her relationship" with the child,
and that such a result would be "contrary to the purpose underlying the
adoption statute which is to provide the child with emotional stability and
permanency."112 As the gay couple in this case was "willing and able to
assume the duties of parenthood with respect to Carl and to provide him
with a stable and permanent home," and the court found the adoption to be
in his best interests, the court granted the joint petition. 113
While still claiming that "adoption statutes must be strictly con
strued,"114 it is clear that the New York courts have fully asserted them
selves since 1995, adjusting the state's adoption policy to its interpretation
of the child's best interests in a not overly delicate fashion. Creating case
law that goes from legislative language stating that "an unmarried person or
an adult husband and his adult wife together may adopt" to "any stable and
permanent couple may adopt" seems to this author to be a stretch of judicial
power. While this is a victory for gay couples and the children they care for,
it has taken some creative jurisprudence to get to that point. Fortunately, the
legislature has not disagreed with this bending of the statute and, in fact, in
2007 stepped in with two separate pieces of legislation to allow for gay
couples to adopt, avoiding judicial guesswork in the future. 115
SUGGESTED CHANGES FOR MINNESOTA ADOPTION LAW116
In 2003, there were 7,338 children in foster care in the state of Minne
sota.ll7 This placed the state as twenty-fourth in the nation for the percent
age of children who are in foster care. According to an analysis of the 2000
U.S. Census data, there are an estimated 9,147 households with same-sex
partners in the state of MinnesotaYs Given that this was a 200 percent
increase from 1990, ll9 it is likely that there are even more same-sex part
ners living in Minnesota now, eight years later. Put that together with a
2001 Kaiser Family Foundation study that showed that forty-nine percent of
gay people "would like to adopt" someday, and it is apparent that there are
many potential gay adopters. 120 Even if only ten percent of same-sex house
holds in Minnesota could be encouraged to adopt children-encouraged by
our agencies, our laws, and our legal community-it could result in almost
one thousand homes for the children of this state. What sort of effect would
that have on the lives of those who need permanent homes the most?
However, many gay and lesbian couples continue to feel that the court
systems in Minnesota are not open to them adopting and are unsure of how
they will be treated by social service agencies. 121 There is a notion that the
adoption process will be an uphill battle since there is nothing in the law
specifically saying that they may adopt as a couple, even as there is nothing
saying they may not. There is hesitation to step into a process that is costly,
emotionally draining, and invasive if there is not an assurance that in the
end the Minnesota court system will treat them as any other couple. These
are couples that could provide stable and loving environments as well as
serve as positive role models for gay youth who, as noted earlier, make up a
disproportionate amount of the homeless youth in urban areas. 122
From a business perspective, it is advisable to not only allow gay
adoption, but to encourage it and market to that community; it has been
found that the gay community is a niche market with its own advertising
and messaging needs. 123 Eighty-nine percent of gay consumers are highly
likely to seek out consumer goods and services that are marketed directly to
them.124 If the Fortune 500 companies are pumping billions of dollars into
meeting the marketing needs of this community, it would similarly make
120. HENRY J. KAISER FAMILY FOUND., INSIDE-OUT: A REPORT ON THE EXPERlENCES OF LES
BIANS, GAYS AND BISEXUALS IN AMERICA AND THE PUBLIC'S VlEWS ON ISSUES AND POLICIES
RELATED TO SEXUAL ORIENTATION 4 (2001), http://www.kff.org/kaiserpolls/upload/New-Surveys
121. Interview with Tim Reardon in Minneapolis, Minn. (Aug. 11, 2006) (gay father who
adopted in Hennepin County); Interview with Peter Vitale and Stephen Nelson in Minneapolis,
Minn. (June 2
) (partners who adopted three children from out-of-state); see also Deborah
Yetter, Unmarried but Cohabitating Gay Couple Blocked in Effort to Adopt, LOUISVILLE COU
RIER-J., Mar. 3, 200S, available at http://www.courier-journal.comlapps/pbcs.dll/article?AID=/20
OS0303/NEWSOllS03030392 (A gay couple in Kentucky was expelled from an adoption agency
after already paying extensive fees for a home study by the faith-based children's services organi
zation. The private adoption agency receives approximately $12.5 million in State funding annu
ally for its services.).
122. Urbina, supra note 12. It is notable, as well, that private agencies are already trying to fill
this gap in adoption law, even if with limited funding and resources. One Twin Cities agency, the
GLBT Host Home Program, matches homeless GLBT youth with adults who volunteer to house
them. Heidi Fellner, Safe as Houses: GLBT Host Home Program Opens Its Doors, LAVENDER
MAG., Apr. 13-26, 2007, at 44, 46.
sense to make sure that would-be gay parents are addressed by any market
that wishes to engage them. This includes the State of Minnesota and its
thousands of children in need of homes. At this moment, there is no part of
the statute that references gay adopters either positively or negatively. None
of the state's treatises on adoption or family law mention gay adopters ei
ther. With little to no recruitment on behalf of local agencies and the legal
community, and no mention at all in the law as to their legal standing, can
there be any doubt as to why gay couples might be hesitant to venture into
such unsure waters?
There seem to be three potential answers to the question of developing
law in this area for Minnesota. The first, and seemingly simplest, is to ig
nore the ambiguity that continues to discourage gay couples from adopting.
The strongest argument from this perspective is that, if Minnesota is not
ready for progressive change on this issue, even bringing the topic to the
legislature could create a negative and potentially dangerous legislative re
action against gay couples, resulting in a Florida- or Utah-like law for the
state. This is a possibility to be considered, even if dispatched in the knowl
edge that Minnesotans are unlikely to react in such a fashion.
Further, the result of ignoring this issue would be that inevitably the
Minnesota judiciary would have to interpret whether the Minnesota statute
indeed allows for joint petitions for unmarried couples. Beyond the demo
cratic idea that a change in the law should come from the legislature, there
are many compelling reasons not to rely on the judiciary for such a change.
There is little indication whether the resulting case law would be positive or
negative for gay couples. Creating a controlling holding against gay couples
adopting jointly could hurt Minnesota for many years. Litigating this issue
might also force the judiciary into feeling the need for the type of creative
jurisprudence that the state of New York has seen. This case law, helpful or
hurtful to gay couples, would only complicate an area of law that is other
wise governed strictly by statute. Further, the result of waiting on conclu
sive authority from the Minnesota Supreme Court could take many years.
A second, and more favorable, proposal would be to create pressure on
the state's public and private adoption agencies to make internal changes to
both accept and promote adoptions by gay couples. In reviewing different
state policies, the agency change that was brought about in New Jersey in
1996 was the most effective state change short of the domestic partnership
rights later introduced in that state and others. Further, it is a change that
can and should be made at both private and public levels.
In a national study conducted at Rutgers University in 2003, it was
shown that although sixty percent of the adoption agencies surveyed were
willing to accept applications from gay adopters, less then thirty-nine
percent had made such placements. 125 Further, only nineteen percent actively
recruited adoptive parents in the gay community.126 Nearly half the agen
cies surveyed (forty-eight percent), however, expressed a desire to receive
training to work with gay and lesbian families. 127 All agencies should start
making advertising efforts to recruit gay couples. Trainings should be made
available, both through the state and through private efforts to make social
workers in agencies state-wide more comfortable in dealing with gay
couples and placements with gay parents.
One agency director created just such a training program for child wel
fare workers in California. "There was a huge need for understanding about
how to work with gay and lesbian families," said Jill Jacobs, Executive
Director of Family Builders by Adoption, who has been doing these train
ings for about six years, "and I heard from lots of child welfare workers and
social workers who wanted to work with gay and lesbian families but felt
like they didn't know how, and they were a little afraid. They weren't sure
how to ask certain questions.'>l28 She points to a lack of knowledge of how
to conduct a home study for a gay family or confusion over the quality of a
relationship when no marriage certificate is available. 129 Some social work
ers are also unsure about the ability of two women to raise a boy adoptee or
two men to raise a girl adoptee. 13o Such issues must be fully addressed for
gay couples to be completely and adequately brought into the adoption sys
tem as families.
Further, Minnesota's adoption agencies should implement the stan
dards set forth in the Child Welfare League of America's Standards of Ex
cellence for Adoption Services for determining who might be a good
parent: "[A]pplicants should be assessed on the basis of their abilities to
successfully parent a child needing family membership and not on their
race, ethnicity or culture, income, age, marital status, religion, appearance,
differing lifestyles, or sexual orientation."131 This standard emphasizes "in
dividual assessment" of parents to "meet the needs of a particular available
Finally, the fastest and most conclusive answer to enabling gay
couples to adopt would be to enact legislative changes. The Minnesota
"Who may petition" for adoption statute has not been altered since 1998.133
If the Minnesota legislature were to undertake to amend the adoption statute
in a progressive manner, in the end, much of the debate reasonably comes
down to semantics about gay relationships. How is the legislature to include
into the adoption statute a relationship which otherwise legally does not
exist? "Marriage" is a legally finite term. It has a legal beginning (license
and ceremony) and a legal end (death or divorce). To include gay couples in
the adoption statute before such couples are legally allowed to become mar
ried would necessitate an oddly worded and questionably vague relational
term to be put in place. A term permitting adoptions to "any person or
persons" (as opposed to the singular "any person") could force courts to
allow adoptions to polygamist groups, churches, or even business enter
prises. 134 A term allowing adoptions to "any two adults," such as the propo
sal in New York, could be argued to create problems with non-committed
couples being able to adopt without any legal, social or amorous structure to
their family life. Vermont's usage of the term "partner" might also offer a
solution, although the term would have to be defined in its own right. Per
haps New Hampshire's proposal of adding "two unmarried adults in a fa
milial relationship" might also satisfy the situation, but the term "familial"
would once again provide a point needing clarification.
This author proposes a solution that might simplify the issue: recog
nize the relationship of the gay or straight unmarried couple to an adopted
child, and thus better serve the best interest of the child. The state of Minne
sota should continue to allow "any person" to adopt, but add language em
powering "any two persons, heterosexual or homosexual, who have been in
a committed relationship for at least one year" to adopt. (Of course the time
of the relationship can be increased or decreased as the legislature may
deem appropriate, so long as that age-of-relationship requirement is im
posed on couples both gay and straight.) This definition, while perhaps
cumbersome in length, would solve two key issues. First, this language
would acknowledge the simple existence of gay couples wishing to adopt,
and would give them the assurance that the State of Minnesota will not
stand as a barrier between them and a family. Second, it would limit adop
tive parents to two people in a committed relationship for a period of time.
This assures that the child's best interests are still being preserved against
the possibility of non-committed couples, groups, organizations, or
polygamists wishing to take advantage of a newly broadened statute. In
eliminating these "slippery slope" possibilities, the threatening nature of
l33. See MINN. STAT. § 259.22 (2007) (and then only amended to change the residence time
l34. A fear that, while comical to some extent, was very much on the minds of the Utah
legislature when they enacted their ban on adoptions by adults cohabitating with other adults.
such argued possibilities may be neutralized, even if simply for argument's
In concluding this comparative paper, it is suggested that Minnesota
amend its adoption laws to add clarity to the state's view of adoption by gay
couples. As a progressive state, Minnesota has a duty to learn from the
transgressions of other legislatures, and acknowledge both that there is a
problem to be solved with so many children in the state's foster care system
and that there are resources that can be tapped into to better serve the inter
ests of those children.
In interviews with various same-sex families who have adopted chil
dren in Minnesota and judges who have had the issue before them, it has
become clear to this author that the issue for these families is less about
what the law is, but more about what the law appears to be. 135 These adopt
ing families saw no affirmative statement that they, after investing moneta
rily, emotionally and legally into a system to help a child, would not be
rejected because of the lives they lead together with their same-sex partners.
The law in Minnesota has remained ambiguous as to same-sex adoptions,
and, especially for gay men and women who grew up and "came out" in far
more conservative eras, there is the assumption on many of their parts that
this ambiguity can only work against them. These are couples who are
treated differently for tax purposes, for estate purposes, for health care pur
poses, and even for immigration purposes. Can there be any wonder why
they would presume that an unarticulated law for adoption purposes would
stand in their way? Without the clear marketing of legal and social services
along with unquestionable legislative and judicial language, many of these
couples still feel left out in the Minnesota cold. And discouraging available,
stable, loving families from permanently bringing foster children into their
homes simply is not in the best interests of the children of Minnesota.
The issue of adoptions by gay families has seen recent legislative ac
tion in a number of states. Utah's legislation, which was discussed earlier,
was amended to add clarifying statements regarding the preference for mar
ried couples in adoption as recently as March of 2007. 136 The state of Ar
kansas saw movement on a bill that would have restricted gay adoption as
well in 2007. 137 On the other end of the spectrum, in May of 2007 Colo
rado's governor signed into law House Bill 1330, allowing gay couples to
adopt jointly in an adoption process that simulates that of a step-parent
adoption. 138 After eleven states banned same-sex marriage through voter
initiatives in 2004, there is a high likelihood that conservative movements
may try to restrict adoption rights as well. 139 One representative of the
Child Welfare League of America, Rob Woronoff, said in a National Public
Radio interview, "This is a new issue that is really kind of growing out of
the anti-gay marriage movement, but it's a very different issue from mar
riage. . . . Finding permanent, loving homes for children is a very difficult
task that all states face."14o
As a state with an undeniably progressive history, Minnesota should
take the lead of several other states to also be on the forefront of not only
allowing, but encouraging, adoptions by all those families who can create
homes for the over 520,000 children in the foster care system in the U.S. 141
Amending the state's adoption legislation to dispel any ambiguity and cre
ate clear policy terms is in the best interests of adoptable children, and, in
the end, this must overcome all political game-playing and moral theo
rizing; there are children who need permanent homes, and homes to be had.
I. Introduction......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 312 II. States that Ban Adoptions by Gay Persons ............ 315 III. States that Ban Gay Couples from Adopting, but Allow Single Gay Adopters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 318 A. Utah ............................................. 318 B. Oklahoma....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 320 IV. States with Nonspecific Laws Regarding Gays and Adoption........................................... .. 321 V. States that Allow Adoption by Gay Couples. . . . .. . . . .. 325 A. New Jersey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 326 B. New york ........................................ 327 VI. Suggested Changes for Minnesota Adoption Law . . . . .. 328 VII. Conclusion........................................... 333
4. Minnesota Dept . of Agriculture, Frequently Asked Questions About Renewable Energy, http://www.mda.state.mn.us/renewable/faqs. htm (last visited Jan . 28 , 2008 ).
5. Molly Beutz et ai., The Government Response to Domestic Abuse Against Refugee and Immigrant Women in the Minneapolis/St. Paul Metropolitan Area: A Human Rights Report, Minnesota Advocates for Human Rights 3 (Dec . 10, 2004 ), available at http://www.mnadvocates. org.! sites/608a3 887-dd53-4796-8904-997aO131ca54/uploads/FINAL_REPORT_Dec_l0_ 2004 _ 2 .pdf.
6. Carl Hulse , New Mosaic of Democrats Is Challenge for Leaders, N.Y. TIMES , Nov. 9 , 2006 , at PI.
7. In re Jaren's Adoption, 27 N.W.2d 656 ( Minn . 1947 ).
8. Id. at 661.
9. MINN. STAT. § 518 .17 ( 2006 ).
10. In re Welfare of Children of R.W., 678 N.W.2d 49 , 58 (Minn. 2004 ) (citing MINN . STAT. § 260C.201, subdiv. 11(d)(3) ( 2002 ».
11. Barbara L. Jones , National Foster-Care Summit Held in Minnesota, THE MINNESOTA LAWYER , Oct. 2 , 2005 , available at http://pewfostercare.org/press/files/MinnesotaLawyer1003 05. pdf (quoting Pew Commission on Children in Foster Care) .
12. Ian Urbina , Gay Youths Find Place to Call Home in Specialty Shelter, N.Y. TIMES , May 17 , 2007 , at A18.
13. Id .
14. Id .
15. For an in-depth look at the social science affecting this issue, see Leslie Cooper & Paul Cates, Too High a Price: The Case Against Restricting Gay Parenting , 25 - 73 ( 2006 ), available at http://www.ac1u.org/images/assecupload_file480_ 27496 .pdf. To read about one author's take on the moral issue, see Carlos A. Ball, The Immorality oj Statutory Restrictions on Adoption by Lesbians and Gay Men, 38 Loy. U. Cm . L.J. 379 ( Winter 2007 ).
53. Finstuen v. Crutcher , 496 F.3d 1139 (lOth Cir. 2007 ).
54. See Debra E. Guston & William S. Singer , The State of Gay and Lesbian Adoption in New Jersey , N.J. LAWYER , Apr. 2006 , at 36 (warning families to "carefully" consider a move to such a "hostile" state).
55. Finstuen v. Edmondson , 497 F. Supp .2d 1295 , 1301 (W.D. Oklahoma 2006 ) (plaintiffs Gregory Hampel and Edmund Swaya feared returning to Oklahoma to allow their adopted child visitation with its birth parents after the enactment of the amendment ).
56. Id .
57. See case summary: Sonja Larsen, Annotation, Adoption of Child by Same-Sex Partners, 27 A.L.R. 5th 54 ( l995 ). This was also largely due to the fact that homosexuality was regarded as a mental disorder by the American Psychiatric Association until 1973 . An Instant Cure , TIME , Apr. 1 , 1974 , http://www.time.com/time/magazine/articJe/0.9171.904053.00.html.
58. MINN. STAT. § 259 . 21 - 22 ( 2007 ).
59. See Legislative History of MINN . STAT. § 259 . 21 - 69 .
60. 6 Minn. Prac. Series § 39 .3.
61. Interview with Hennepin County District Court Judge Kathryn Quaintance , in Minneapolis, Minn. (July 31 , 2006 ).
62. Compare MINN . STAT. § 259 .22 ( 2007 ) with GA . CODE ANN. § 19-8-3 (West 2007 ).
63. Alyson M. Palmer , Adoption Turned on Views of Sexuality, DAILY REp ., Apr . 19 , 2007 , http://www.dailyreportonline.comlEditoriallNews/new_singleEdit. asp?individual_SQL=4%2F19 %2F2007%4014742_Publichtm.
64. Id .
65. Id .; GA. CODE ANN. § 19 -8 -3. That part of the Georgia statute is comparable with MINN . STAT. § 259 . 21 subdiv. 7, which provides for a "person with spouse, if there be one," to petition for adoption.
66. Palmer , supra note 61.
67. In re Petition of Elizabeth Hadaway to Adopt, Civil Action No. 0609 - 187 (Ga. Wilkinson County Super., Jan. 8 , 2007 ), available at http://www.dai1yreportonline. comlEditoriall·PDFIPDF %20ArchiveIDOC002.PDF.
68. Palmer , supra note 61.
69. Id .
78. Jean Hopfensberger , Nontraditional Families Facing New Frontiers in Family Law, STAR TRIBUNE , Dec . 12 , 2006 , at lB.
80. SooHoo v. Johnson, 731 N.W.2d 815 ( Minn . 2007 ).
81. This statement comes from extensive searches of Minnesota case law including the following searches: (adoption w/50 lesbian! or gay! or homosexual!) ("same sex" w/30 partner! or relation!) ("same sex" & adoption).
82. Petition of Sherman, 63 N.W.2d 573 , 576 (Minn. 1954 ).
83. MINN. STAT. § 259 .29 ( 2007 ). It is interesting to note that if the legislature were to allow gay couples to marry, then the adoption statute would not need to be altered. However, if civil unions or domestic partnerships become an option in Minnesota, the adoption statutes would still need to be amended to allow for petitions from those partnerships .
84. This statement comes from a search of law journals and reviews with "adopt" and "Minnesota" in the title as of November 11 , 2007 .
85. Lambda Legal , Minnesota, http://www.lambdalega1. org/our-workistates/rninnesota.htnIl (state-by-state listing of laws affecting gays and lesbians); Liberty Counsel, Same-Sex Adoption Laws by State , http://www.lc.orglProFarnily/samesex_adoption_ by_state.pdf; Human Right's Campaign Foundation , Minnesota Adoption Law, Jan. 22 , 2008 , http://www.hrc.org/issues/ partenting/adoptions/l061.htm.
86. Liberty Counsel, supra note 83.
87. Karla J. Starr , Note, Adoption by Homosexuals: A Look at Differing State Court Opinions, 40 ARIZ. L. REv. 1497 , 1502 ( 1998 ); Palmer, supra note 61.
88. John Ireland, 50 Ways to Adopt a Baby, THE ADVOCATE , Aug . 28 , 2007 , at 39-41.
89. CAL. FAM. CODE § 9000 (West 2005 ) ("Domestic partners" under California law are "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." CAL. FAM . CODE § 297 (West 2005 ). The statute goes on to list a fairly meticulous calculus of how such a relationship is to be measured .).
90. VT. STAT. ANN. tit 15A, § 1 - 102 ( 2002 ).
91. CONN. GEN. STAT. ANN. § 45a- 724 ( a)(3) (West 2004) (compare to pre-2000 revision requiring the second-parent to be a relative rather than another "person who shares parental responsibility" ).
92. In re M.M.D. , 662 A. 2d 837 (D.C . 1995 ); Petition of K.M., 653 N.E.2d 888 ( Ill . App. Ct. 1995 ); Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993 ).
93. Julie Brienza , Joint Adoptions by Gays are Put on Even Ground with Heterosexual Couples, 34 TRIAL (Mar . 1998 ).
94. Guston & Singer, supra note 53, at 35.
95. Joyce F. Sims , Homosexuals Battling the Barriers of Mainstream Adoption- and Winning , 23 T. MARSHALL L. REv . 551 , 580 - 81 ( 1998 ).
96. Guston & Singer, supra note 53, at 37.
97. Id . at 35.
98. Sims , supra note 93, at 581.
99. Id .
100. In re Adoption of Two Children by H.N.R. , 666 A. 2d 535 (N.J. Super . Ct. App. Div. 1995 ); Molly Cooper, What Makes a Family: Addressing the Issue of Gay and Lesbian Adoption, 42 FAM . CT. REv . 178 , 183 ( 2004 ).
101. Guston & Singer, supra note 53, at 35.
102. Lewis v. Harris , 188 N.J. 415 ( 2006 ) (New Jersey Supreme Court ordered the legislature to "act within 180 days either to redefine the right to marry to include same-gender couples or to 'enact a parallel statutory structure by another name .' " 2006 NJ S .B. 2414 (legislative statement».
103. 2006 NJ S.B. 2414 (to be codified in N.J. STAT. ANN. § 9 : 3 - 43 ). Likewise, while the State of New Hampshire has direct case law standing against joint petitions by gay couples (In re Jason C ., 129 N.H. 762 , 765 ( 1987 », as of April 2007 , legislation was pending in that state to either enact civil unions for the state (H .B. 437 , 160th Gen. Court Sess. (N.H. 2007 », or in the alternative, to allow "[tlwo unmarried adults in a familial relationship" to adopt (H .B. 51 , 160th Gen. Court Sess. (N.H. 2007 ».
104. N.Y. DaM. REL. LAW § 110 (McKinney 2007 ). Much as with the proposed changes to New Hampshire law (see supra note 101), the laws as to who may adopt in New York may be amended even before this article is published. Two different bills have been proposed, one allowing "any two unmarried adults together" to adopt (A .B. 7449 , 230th Legis. Sess. (N.Y. 2007 », and one creating domestic partnership rights which would allow domestic partners to adopt together (S.B . 1992 & A .B. 3869 , 230th Legis. Sess. (N.Y. 2007 ».
105. Vincent C. Green , Note, Same-Sex Adoption : An Alternative Approach to Gay Marriage in New York, 62 BROOK. L. REV. 399 , 421 ( 1996 ).
106. In re Jacob, 86 N.Y.2d 651 , 658 (N.Y . 1995 ).
107. Id .
108. Id . at 660.
109. Id .
110. 709 N.Y.S. 2d 905 (N.Y. Fam . Ct. 2000 ).
111. [d. at 909.
112. [d. at 910.
113. [d. at 909-10.
114. [d. at 907.
115. See Lewis v . Harris , 188 N.J. 415 ( 2006 ).
116. The most obvious solution to any inequities in Minnesota's adoption laws would be to allow for either gay marriage or civil unions in the state . This solution, however, is beyond the arguments of this article, and perhaps that which is absolutely necessary to encourage higher rates of adoption by gay couples .
117. Jones , supra note 11.
118. Nahal Toosi , Census Finds More Same-Sex Households , MILWAUKEE J. SENTINEL , Aug. 22 , 2001 , available at http://www2.jsonline.com/news/metro/augOl/samesex220821 01a.asp.
119. HUMAN RIGHTS CAMPAIGN , YOUR COMMUNITY -MINNESOTA, http://www.hrc.org/ youccommunity/3378_3503. htm (last visited Jan . 29 , 2008 ).
123. See Carolyn Said, Marketing Comes Out of the Closet: Advertisers Woo Gays and Lesbians in Ways They Never Did Before , S.P. CHRON. , June 25, 2006 , at Fl.
124. PlanetOut Inc., Meet Your Best Customer, http://www.planetoutinc.comlsales/ (last visited Jan. 31 , 200S ) (citing data from SIMMONS, LESBIAN, GAY, BI-SEXUAL, TRANSGENDER SURVEY , http://srnrb.com/aspx/content.aspx? pid=4&sid=4S&page=Solutions_Lesbian).
125. EVAN B. DONALDSON ADOPTION INST., ADOPTION BY LESBIANS AND GAYS: A NATIONAL SURVEY OF ADOPTION AGENCY POLICIES, PRACTICES, AND ATTITUDES; EXECUTIVE SUMMARY 2-3 ( 2003 ), available at http://www.adoptioninstitute.org/whowe/Gay%20and% 20Lesbian % 20Adoption1 .html.
126. Id . at 4.
127. Id .
128. Jennifer Michael , Defining Family: Piecing Together how Two Moms or Two Dads Fit into the Picture , CHILDREN'S VorCE , Sept.-Oct. 2006 , available at http://www.cwla.org/voice/ 0609family.htm.
129. Id .
130. Id .
131. Kristen Kreisher , Gay Adoption, CHILDREN'S VorCE , Jan. 2002 , available at http:// www.cwla.org/articles/cv020Igayadopt.htm.
132. Id .
135. Interview with Herbert Lefler, Hennepin County Dist . Court Judge, in Minneapolis, Minn. (Aug. 1 , 2006 ); Interview with Kathryn Quaintance, supra note 59; Interview with Tim Reardon, supra note 119; Interview with Peter Vitale and Stephen Nelson , supra note 119.
136. H.R. 343 , 2007 Leg., Gen. Sess. (Utah 2007 ).
137. Doug Thompson , Bill to Ban Gay Adoptions, Foster Parenting Advances, ARK. NEWS BUREAU , Mar . 13 , 2007 , available at http://www.arkansasnews.com/archive/2007/03/13INews/ 341036.html.
138. Ed Sealover, Gay Couples OK'd to Adopt; Abstinence-Only Sex Ed Cut, COLO. SPRINGS GAZETTE, May 15 , 2007 , available at http://www.gazette. comJarticleslbilC22409_article.htmII children_sex.html.
139. Greg Quinlan, founder of the Christian conservative Pro-Family Network in Ohio, told USA Today, "Now that we've defined what marriage is, we need to take that further and say children deserve to be in that relationship . " Michael, supra note 126.
141. Andrea Stone , Both Sides on Gay Adoption Cite Concern for Children, USA TODAY , Feb . 20 , 2006 , available at http://WWw.Usatoday.cOmlneWS/natiOnl2006-02-20 - gay-adOPtionfostecx.htm.