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Restrictions on Gay and Lesbian Adoption Are Not  Unconstitutional Table of Contents: Further Readings Lynn Wardle, presentation at the Marriage, Adoption , and the Best Interests of the Child Symposium, November 1, 2002. Copyright © 2002 by Lynn Wardle. Reproduced by permission. Lynn Wardle is professor of law at Brigham Young University J. Reuben Clark Law School, and has written extensively on family law issues . The benefits to children in need of adoption of being raised by a mother and father who are married to each other are tremendous. The "marriage factor" in terms of the welfare of children justifies adoption rules that discriminate against nonmarital couples including gay couples and partners. Some advocates of gay rights assert that it is unconstitutional for states and state adoption agencies to prohibit or restrict adoption by homosexual couples (herein "gay couple adoption "). Most of these claims fall into two categories: (1) that homosexual couples have a constitutional right or liberty to adopt, or (2) that refusal to allow homosexual couples to adopt violates the Equal Protection Clause of the Fourteenth Amendment. Both claims are flawed. There is no fundamental constitutional right to adopt. While adoption has very deep historical roots, it is not deeply rooted in the history and traditions of this Nation or of the common law. It is a totally statutory creation and since it always has been closely regulated by the state, the claim that a person or couple has a right to adopt independent of strict state regulation has never been accepted. Some have argued that a right to adopt is embodied in the constitutional right of intimate association. However, only traditional family relationships have been found to be intimate family associations protected by the Constitution, and no court has found that the Constitution protects the creation of an adoptive relationship. Even if married couples might be able to assert a constitutional right to adopt, it would not extend to homosexual couples. It could not be said that gay couple adoption is deeply rooted in the history and traditions of this Nation. No court has ever held that homosexual couples have a fundamental constitutional right to adopt. Gay couple adoption does not come within the ambit of traditional family relations. Equal protection analysis depends upon infringement of a fundamental right or suspect classification. For the reasons reviewed above, laws that disallow gay couple adoption do not violate a fundamental right. Some argue that refusal to allow gay couples to adopt discriminates on the basis of a suspect classification. Most courts have rejected the claim that sexual orientation is a suspect classification. While a few courts have held that sexual orientation alone may constitute a suspect classification, no court has held that homosexual coupling is a suspect classification. No court has held that it violates equal protection to deny gay couple adoption .
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This note was uploaded on 11/30/2010 for the course BUS 210 XACC 280 taught by Professor Veilleux during the Spring '10 term at University of Phoenix.

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sorce 3 for final project -...

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