Tag Archives: adoption

Same Sex Adoption in Arizona After Latta v. Otter

Arizona’s adoption laws could be influenced by a recent civil rights cases decided by the federal appeals court holdings that same sex marriage prohibitions violate the Equal Protection Clause of the Fourteenth Amendment. See Latta v. Otter, No. 13-cv-00482 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, No. 14-2386 (7th Cir. Sept. 04, 2014).

Legal analysts think there may be changes to the legal landscape in Arizona because same sex marriages are permissible in Arizona.

Adoption by same sex couples is just one area that may be impacted by the Majors ruling (which is based on the Latta v. Otter opinion), holds prohibitions on same sex marriages are unconstitutional.

Currently, Arizona law creates a preferences for a married man and woman for adoptions.  “If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.”  Ariz. Rev. Stat. § 8-103(C).

Okay, let’s clarify real quick, “[a]ny adult resident of this state, whether married, unmarried or legally separated is eligible to qualify to adopt children.”  Ariz. Rev. Stat. § 8-103(A).  Although anyone can adopt a child, the “adoption agency shall place a child in an adoptive home” that is in the best interest of the child.  Ariz. Rev. Stat. § 8-103(B).  When signing Senate Bill 1188 into law in 2011, the Arizona Legislature directed state and private agencies to place children in adopted homes which are in the best interest of the child.  But one of the potential factors gives preferential treatment to a married man and woman.  The law very specifically mentions a preference  for a married man and woman and not a married couple.

The legislative history and media reports at the time confirm the same type of equal protection concerns arise under the adoption law. “Conservative groups and other supporters of the measure said children should have every opportunity to grow up in a household with a mom and dad.” The AZ Republic reported in 2011 when the law changed to add a preference for a married couple. Furthermore, media report is corroborated by the official “House Summary, As Transmitted To The Governor.”

Now that courts have ruled Arizona laws prohibiting same sex marriages are found to violate the Fourteenth Amendment of the United States Constitution this could have a positive effect on same sex couples who choose to adopt.

Hopefully, the provision giving preference to married heterosexual couples will be changed legislatively or judicially, soon.

To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as
unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’

 — Latta v. Otter, No. 13-cv-00482, at *28 (9th Cir. Oct. 7, 2014).