When the State Discriminates
BY Carlos A. Ball
September 27 2012 3:00 AM ET
The Ohio Supreme Court
The law in Ohio, like that of most states, was silent on the question of whether gay people could adopt. The Ohio adoption statute permitted both married couples and unmarried persons to adopt. Since Lee was not married, and since the statute did not address the question of sexual orientation, it seemed clear that he was not, as a matter of law, prohibited from adopting. But the Ohio Court of Appeals, in a poorly reasoned opinion, overturned the lower court’s ruling after concluding that Ohio law, in fact, categorically prevented gay people from adopting children.
The court provided two rationales in support of its reading into the statute a gay adoption ban that had not been enacted by the legislature. First, the judges opined that “homosexuality and adoption are inherently mutually exclusive” because “homosexuality negates procreation.” The relevancy of this observation, however, was not clear since adoption and procreation are two different ways of becoming a parent. In fact, many heterosexual couples who choose to adopt do so precisely because they cannot procreate. The ability to procreate, therefore, does not distinguish those couples from gay people interested in adopting.
Second, the court noted that a child raised by “announced homosexuals” will not be able “to pass as the natural child of the adoptive ‘family’ or to adapt to the community by quietly blending in free from controversy and stigma.” According to the court, “adoption imitates nature,” which meant that “a fundamental rationale for adoption is to provide a child with the closest approximation to a birth family that is available.”
The court’s understanding of adoption, while once widely shared, had by the late 1980s become dated and anachronistic. By then, few in the child welfare and adoption fields still believed that it was crucial for adopted children to “blend in” with their adopted families so that outsiders would not know that they had been adopted. The Ohio Supreme Court had itself made this point clear when it ruled in 1974 that a white couple could adopt an African-American child, a decision that was consistent with one from twelve years earlier in which the court permitted a white man and his Asian wife to adopt a Latino child.
As suspect as the court’s reasoning was, its ruling meant that Lee would not be able to adopt Charlie unless the Ohio Supreme Court reversed. In arguing its case before that court, the government contended that it would not be in Charlie’s best interests “to be adopted into the home of two male homosexuals living as husband and wife in a relationship they consider a marriage.” The government lawyers insisted that gay people were not the kinds of “parental role models” that children needed.
But for the Ohio Supreme Court, the legal issue was a straightforward one: It was up to the legislature to decide whether gay people were eligible to adopt. The legislature had not explicitly prohibited gay people from adopting; instead, it had expressly concluded that any unmarried adult could file an adoption petition, one that should be approved if doing so was in the child’s best interests. As a result, the state high court ruled that the Court of Appeals had erred when it categorically excluded an entire group of individuals from adopting in the absence of a legislative mandate.
The law required adoption petitions to be considered on a case-by-case basis depending on the particular circumstances of the child and of the prospective parent. Since Lee was not, as a gay man, legally precluded from adopting and since the trial court had found that the adoption was in Charlie’s best interests, the state supreme court ordered that the adoption decree be issued.
It bears noting that not every justice on the Ohio Supreme Court joined the majority opinion. The sole dissenting judge would have sided with the government, but would have relied on a different — though not any less problematic — rationale than the one embraced by the Court of Appeals. This judge would have denied the adoption petition because Lee Balser was a gay man who, despite being HIV-negative, was at risk (the judge believed) of being infected with the virus in the future, which in turn supposedly placed Charlie at risk of getting AIDS. The dissenting judge noted that the boy’s immune system was already compromised as a result of the leukemia treatment. Acquiring HIV, the judge feared, would further compromise the boy’s immune system.
Although the dissenting opinion did not carry the day, it is nonetheless indicative of the extent to which some judges were willing to go to deny LGBT people the opportunity to become parents. By the time the Ohio Supreme Court issued its opinion in 1990, it was widely understood that HIV was not transmitted through casual household contact. Yet, this did not prevent the dissenting judge from concluding that a gay man — even one who was HIV-negative — should be prevented from adopting a child.
After the Ohio Court of Appeals reversed his ruling allowing Lee to adopt Charlie, the trial judge granted temporary custody of the boy to Lee’s sister Edna Balser until the state supreme court could review the case, a wait that lasted fifteen months. The Court of Appeals’ ruling had been so adamant in its opposition to the idea that gay people should be permitted to adopt, that Lee, Tom, Edna, and Lee’s mother spent many hours discussing how it might be possible to keep Charlie in the family if that ruling was upheld. The only way of achieving that goal seemed to be for Edna to adopt Charlie. So a month after the Court of Appeals’ decision, Edna filed a petition to adopt the seven-year-old boy.
In the end, that adoption was not necessary because the state supreme court ruled that Lee’s sexual orientation was not a legal impediment to his adopting the boy. The court’s decision cleared the way for Lee (and Tom) to take the boy into their home to care for him permanently while experiencing the unique joys and satisfactions of parenthood. As an emotional Lee put it at the time, “[t]here’s something special about a kid putting his arms around you and kissing you and saying, ‘good night, daddy.’”
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