In a span of two decades, gay Americans have gone from having almost no option to adopt a child as a couple to having adoption become a routine way for same-sex parents to create a family.
That is, in 49 out of 50 states. The last state to still bar homosexual couples from adopting a child together is Mississippi. Given a lawsuit filed Wednesday, the state's holdout position may soon change as part of a dramatic shift in thinking in the US about parental abilities and the likely success of kids raised by two moms or two dads.
In the lawsuit, four same-sex couples argue that Mississippi’s ban, enacted in 2000, is legally untenable given the Supreme Court's decision to legalize gay marriage in June.
In a sign of how sweeping the cultural shift in thinking about what makes someone a good parent has been, one of the people in favor of lifting the ban is the man who signed it into law: former Gov. Ronnie Musgrove.
“I believed at the time this was a principled position based on my faith. But I no longer believe it was right,” he wrote in a Huffington Post essay. “As I have gotten older, I came to understand that a person’s sexual orientation has absolutely nothing to do with their ability to be a good parent.”
Legal experts suggest that Mississippi will have a tough time arguing the constitutionality of the ban. Culturally, the shift in thinking on who can be a parent is particularly stark in the South. Researchers estimate that more than half of gay families with kids live either in the South or Midwest. Mississippi, for example, has the largest percentage – 29 percent – of gay parents with a child under 18 at home. But those regions are also where opposition to gay marriage and gay adoption have historically been the strongest.
“People have begun to realize that this is not a theoretical question about creating something new. This is a real concrete question of whether we’re going to be a country that protects children and puts them first or a country that denies children the best opportunities in life, simply because we don’t think their parents’ sexuality is OK,” says Gabriel Blau, the executive director of the Family Equality Council, one of the plaintiffs.
According to a press release, the plaintiffs include four couples: Kari Lunsford and Tinora Sweeten-Lunsford, who want to adopt; Brittany Rowell and Jessica Harbuck, who also want to adopt; Donna Phillips and Janet Smith, who have a young daughter together; and Kathryn Garner and Susan Hrostowski, who are raising a 15-year-old.
Mississippi has been the site of several culture war clashes in recent years.
Given a spike in laws that make it harder for abortion clinics to stay open, federal courts have had to step in to protect Mississippi’s only abortion provider, in Jackson.
But the solidly Republican Southern state has in the past questioned culturally conservative viewpoints. In 2011, anti-abortion activists picked Mississippi as one of the likeliest states to pass a so-called personhood law that would give unborn fetuses full citizenship rights, meaning abortion would become murder. Mississippians rebuffed that referendum.
In the case of the adoption ban, former Governor Musgrove signed it into law in 2000. After noting that the Mississippi legislature would likely have overridden a veto, Musgrove conceded in the 2013 essay that he made a mistake, writing that “this decision that all of us made together has made it harder for an untold number of children to grow up in happy, healthy homes in Mississippi – and that breaks my heart.”
The core opposition to gay adoption stems from concerns that children need clear gender definitions and roles in order to navigate their journey to adulthood.
"If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family—whether that is harmful to the child or not,” Supreme Court Justice Antonin Scalia said during the 2013 Hollingworth v. Perry case, which legalized gay marriage in California.
New York was the first state to allow gay couples to adopt in 1996, with others soon following. A few states that still had gay adoption bans on the books in 2015 dropped them after the June Obergefell decision by the Supreme Court, which made same-sex marriage legal throughout the country. Before that ruling, some states didn’t restrict such adoptions based on overt biases. Instead, they had rules restricting guardianship for unmarried couples to one person. Those strictures are now gone for married gay couples in 49 states.
America’s conservative religious communities, in particular, have had to wrestle with a growing desire among gay parents to adopt kids. Mississippi's religious denominations were divided on the adoption ban, for example, with the state's Episcopal leader opposing the ban, while Baptists and Methodists favored it. In 2011, Catholic Charities USA shuttered its adoption program in Illinois rather than go along with a state law prohibiting bias against gays in the placement of children. Children “have a right to a mother and a father,” Bishop David Malloy of the Diocese of Rockford wrote that year.
But such assumptions have come in for heavy skepticism as more and more gay parents have children through IVF, surrogacy, or adoption. The Family Equality Council, for one, represents 3 million parents who, collectively, have more than 6 million children.
"The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents,” the American Sociological Association wrote in an amicus brief to the Obergefell case.
Just as gay marriage bans have been challenged, and finally defeated, in the courts, opinions around same-sex couples adopting children have shifted dramatically, too. Just two years ago, several states had bans on joint adoption by gay couples. Florida, for one, had for four decades explicitly banned homosexuals from adopting or fostering a child. But in July, Gov. Rick Scott signed a law allowing homosexual couples to adopt in the conservative Southern state.
It’s not clear yet whether Mississippi will vigorously defend its 2000 law, especially given the Supreme Court’s ruling in Obergefell. Given that ruling, a gay adoption ban would be tough to justify in front of a federal court.
“I think it’s very likely that the federal district court will invalidate the state law on equal protection grounds,” says Ronald Krotoszynski, a University of Alabama constitutional law professor. “If Obergefell requires respect for the equal dignity of all families, then it would necessarily follow that states don’t have discretion to not recognize existing family units, just because one parent is not a biological parent.”
A 1980s Supreme Court case out of Florida may also apply, Professor Krotoszynski adds In that case, the state took custody of [the child of] a [white] biological mom after she married an African-American man. In that case, the Supreme Court found that the Constitution’s equal protection clause “prohibits the state from ratifying private prejudice, meaning that even if there are social prejudices in play the state can’t use those in any best interest of the child analysis to create a categorical assumption of unfitness” to be a parent.
The push to remove all obstacles for gay couples who want to adopt or raise foster kids, for many Americans, has now gone beyond debates about science and sociology and focuses more on the imperatives of wanting to find capable and loving adults for children in need of parents.
“We’re starting to see the cultural change and recognition that LGBT folks exist in every part of the country, in every county, even in Mississippi,” says Aaron Sarver, a spokesman with the Campaign For Southern Equality, in Asheville, N.C. “The South is not just Atlanta, not just Charlotte. There’s a huge LGBT community in Hattiesburg, Miss. – who knew, right?"