During oral arguments on same-sex marriage last week Justice Scalia argued against recognizing marriage equality by pointing to what he perceives as the potential harm that could befall children if same-sex couples could eventually adopt:
SCALIA: 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. Some states do not permit adoption by same-sex couples for that reason.
Scalia’s bigoted words contain a host of flawed assumptions. For starters, his comments are part of a discriminatory narrative that same-sex parents are inferior at best, or abusive at worst. But, as Ezra Klein pointed out, “there’s no evidence that gay parents aren’t great parents.” According to the American Sociological Association, “whether a child is raised by same-sex or opposite-sex-parents has no bearing on a child’s wellbeing.” A host of other reputable groups — including the American Academy of Pediatrics and the Child Welfare League of America — agree with that conclusion.
Not only is Scalia’s comment about the scientific literature on LGBT parents outright wrong, his words also presume that there are no LGBT children in foster care and in need of adoption. But, in fact, the best evidence we have shows that LGBT foster youth are overrepresented in foster care, in part because of the discrimination they experience in their schools and families of origin. And there are documented instances of foster parents refusing to accept LGBT youth into their homes, kicking them out of their homes, or otherwise isolating them once they are placed in their home. Does Justice Scalia think, without a shred of evidence, that placing these children in homes with LGBT parents would somehow harm them more than the outright bigotry they already experience?
LGBT youth in the foster care system are treated differently from other groups, such as racial, ethnic, and religious groups, who enjoy greater constitutional protections with regard to the provision of culturally competent placements. For example, case workers attempt to place African American youth with African American parents and Spanish-speaking children in Spanish-speaking homes, or to place these children only in homes that have undergone cultural sensitivity training that explicitly addresses their unique needs. Allowing LGBT adults to adopt is one of the more obvious steps the system could take to increase the number of suitable placements available to LGBT foster youth. But anti-gay groups have opposed efforts to even provide sensitivity training to those responsible for LGBT foster youth because they refuse to acknowledge the children’s identity in the first place.
Of course, denying LGBT families the right to foster and adopt doesn’t just harm LGBT foster youth, it harms all foster youth by preventing loving adoptive parents from being able to care for them. Despite the recommendations of many child advocates, only a few states currently allow LGBT Americans to adopt or foster children. Throughout most of the country, LGBT couples face significant barriers to either fostering or adopting and in some states are explicitly prohibited from doing so.
This discriminatory treatment of LGBT Americans in the foster care system is part-and-parcel of laws that define marriage as only between heterosexuals and discriminate against non-heteronormative family structures. At present, courts do not have to apply the same level of scrutiny to the treatment of LGBT Americans, so the foster care system simultaneously discriminates against LGBT adults who want to adopt children and LGBT children who desperately need to be adopted into safe and culturally competent homes.
If Justice Scalia really cares about the best interests of children he would protect the constitutional rights of all children who need to be adopted — gay or straight — and ensure that all adoptive parents are recognized and protected by the law.