Equal Protection and LGBTQ Equality - In January 1999, the board of directors of the state Division of Child and Family Services (DCFS) voted 7-2 to approve a policy restricting state adoptions. Declaring that all adults in an adoptive home must be related by blood, adoption, or legal marriage, the policy effectively prohibits all gay, lesbian, and unmarried heterosexual couples from adopting children in state custody. In response, the ACLU of Utah, along with nineteen other organizations and individuals, submitted written statements opposing the policy, noting that it unnecessarily and arbitrarily eliminates good adoptive homes, and is grounded in an irrational fear and prejudice towards same-sex and unmarried couples.
National child welfare organizations, such as the Child Welfare League of America, the American Psychological Association, and the North American Council on Adoptable Children, all opposed the policy of rejecting potential foster and adoptive parents solely because of their sexual orientation or marital status (click here to review their statements on adoption and foster care). Not a single letter was submitted in support of the policy.
Despite the overwhelming public opposition, the policy was formally adopted as an administrative rule, which has the same effect as state law. In October 1999, Utah Children, a child advocacy group, sued DCFS because the rule decreases foster children’s chances of finding permanent homes. One month later, the ACLU of Utah, along with cooperating attorney Laura Milliken Gray, the ACLU Lesbian and Gay Rights Project and the National Center for Lesbian Rights, filed a successful motion to intervene in the case on behalf of three adult plaintiffs Colleen Sandor, Steven Lazarus, and Michael Splitt, who, because of the arbitrary and unfair terms of the policy, are all denied the opportunity to offer loving homes to children in state custody. Click here to get a copy of the complaint, read more about the plaintiffs, or review our fact sheet on gay and lesbian parenting.
In December 1999, DCFS moved to dismiss the case. While it had insisted all along that the rule was not motivated by anti-gay bias, its motion papers were full of anti-gay rhetoric and relied to a large extent on discredited studies depicting gays and lesbians as pathological and unfit to serve as adoptive parents. Utah Children and the ACLU plaintiffs responded by demonstrating the numerous flaws in DCFS’s arguments and evidence, and we urged that the rule be declared illegal and unconstitutional. Outside the courtroom, the Utah State Legislature codified this irrational fear and prejudice against lesbian, gay, and unmarried heterosexual parents, and during their 2000 session, lawmakers extended the DCFS policy by imposing an absolute ban on private and public adoptions to “a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of the state.” Under this new state law, judges can no longer evaluate adoption proceedings on a case-by-case basis to determine what is in the best interests of the child.
Because the new state law superseded the administrative rule that was the subject of the lawsuit, the case was dismissed in August 2000. Nonetheless, we remain concerned about the discriminatory purpose and effect of the law and continue to believe that individualized, case-by-case placement decisions are in the best interests of children. Accordingly, we will remain on the lookout for incidents in which the rights of children and potential adoptive parents are denied out of fear and prejudice rather than for any reasoned determination.
