In Adoption of M.A., the Maine Supreme Judicial Court, sitting as the Law Court, held that an unmarried, same-sex couple could file a joint petition for adoption of two foster children in their care. This recent decision is only a fraction of a story that originated a long time ago when same-sex couples began raising children. This Comment begins by examining the role of the state courts and the United States Supreme Court in their exposition of family law relating to adoption by same-sex couples. The United States Supreme Court has periodically weighed in on family law and parenting in the context of the Fourteenth Amendment, providing powerful guidance for state courts. In analyzing decisions of several states, the issue of adoption by same-sex couples is explored in the contemporary contexts of de facto parentage, guardianship, visitation, child support, and marriage. Although certain circumstances raise little doubt as to which individuals constitute the parents of a child, other situations may not be as clear. Empirical evidence overwhelmingly supports the proposition that children raised by same-sex couples are no different than children parented by heterosexual couples. Accordingly, such social science findings of equality should translate to a presumption of equality in the eyes of the law, thus blinding the process to the sexual orientation of the parents and advancing an argument for parentage based on equality. A legal presumption of this nature would not only find support in the empirical evidence, but would also safely rest upon recent Supreme Court decisions upholding constitutional rights of gay and lesbian persons under the Fourteenth Amendment. By painting the contemporary national backdrop of this realm of family law while also weaving in Maine’s approach, culminating with the landmark decision in Adoption of M.A., the complexity of the issue at hand is apparent. However, the reader may be left with dissatisfaction regarding our imperfect legal system, which pales in comparison to the frustration experienced by those same-sex couples who are refused the ability to adopt. Despite the inconsistency among the laws of the states on adoption by same-sex couples, a ray of hope lies in the national trend that favors allowing such adoptions. Nevertheless, our nation would be best served by the Supreme Court relying on the Equal Protection Clause of the Fourteenth Amendment to enunciate a uniform standard for adoption that mandates blindness to sexual orientation of the prospective adoptive parents along with consideration of the best interest of the child; thus effecting equality by treating prospective same-sex adoptive couples in the same manner as heterosexual couples. There exists both a rational basis and laudable objective in utilizing the Equal Protection Clause in securing protections for same-sex couples and their children. This would transform a mere ray of hope into the constitutionally guaranteed equality enunciated in the Fourteenth Amendment.
Andrew L. Weinstein,
The Crossroads of a Legal Fiction and the Reality of Families,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol61/iss1/13