Agency Nullification: Defying Bans on Gay and Lesbian Foster and Adoptive Parents

Abstract

Given the Supreme Court’s recent decision upholding marriage equality, LGBT advocates may believe that the future of gay rights is in the hands of the courts. As this Article shows, however, focusing advocacy efforts on the judicial branch is short-sighted and ignores a crucial avenue for legal change: executive agencies. This Article illuminates a new path for advocacy by uncovering the history of LGBT family law claims, which had its beginnings in the administrative state. In the mid-1980s and early 1990s, states began promulgating bans on gay and lesbian foster and adoptive parenting, which civil servants opposed, maintaining that the prohibitions did not serve the best interests of children. Instead of implementing the bans, bureaucrats nullified the laws, working to overturn the bans, limiting their application, or defying the rules in their entirety. Their actions not only helped dispel social prejudices of gays and lesbians as harmful to children, but also recast gay men and women as parents and community members, which promoted other LGBT rights. With gay and lesbian families becoming increasingly common, the need to protect the interests of children with same-sex parents became a powerful argument in favor of marriage equality. The discursive shift that agency nullification fostered was essential in the fight for marriage rights and demonstrates the power of bureaucrats to effectuate legal change. This Article argues that these past successes provide a blueprint for future advocacy efforts that LGBT advocates should follow.

Keywords: Gay, Lesbian, Family Law, Legal History, Administrative Law