Adoption, Best Interests, and the Constitution: On Rational Basis Scrutiny and the Avoidance of Absurd Results

Posted: 20 Apr 2004  

Mark Strasser

Capital University - Law School

Abstract

This article discusses three recent cases concerning the ability of lesbian or gay couples or singles to adopt: Lofton v. Kearney, In re Adoption of R.B.F. and R.C.F., and In re Adoption of Luke. The article analyzes the trial court decision in Lofton, suggesting that the Florida policy preventing those with a same-sex orientation from adopting cannot plausibly be understood to be promoting the interests the state wishes to promote and that the court's decision helps illustrate why such bans should not be upheld even under rational basis review. The article also examines decisions by the supreme courts of Pennsylvania and Nebraska with respect to whether those states would permit second-parent adoptions. While it is unsurprising that a state supreme court might reach one result when interpreting that state's law while a different supreme court reaches a different result when interpreting that state's law, it is surprising that one court would adopt a rationale justifying its decision which a different supreme court found so absurd that that latter was unwilling to attribute such a rationale to the legislature. The article points out that when recognizing that second-parent adoptions were permissible, the Pennsylvania high court rightly recognized that certain implications would be absurd and thus could not plausibly be attributed to the Legislature. Ironically, when finding that such adoptions were not permitted under state law, the Nebraska high court had to ignore the statutory language as well as attribute an absurd purpose to the Legislature. The article concludes by suggesting that adoption by lesbians and gays promotes the interests of the state and all of the individuals involved and thus should be permitted in both kinds of contexts discussed in the article, and that refusing to do so may well not pass muster even under rational basis review.

Keywords: Second-parent, adoption, gay, lesbian, rational basis

JEL Classification: J12, J13, J71, K10

Suggested Citation

Strasser, Mark, Adoption, Best Interests, and the Constitution: On Rational Basis Scrutiny and the Avoidance of Absurd Results. Journal of Law and Family Studies, Vol. 5, pp. 297-318, 2003. Available at SSRN: https://ssrn.com/abstract=524308

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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