Utah has little company nationwide in banning same-sex couples from adopting children.
And it's the third state with a chronic need for adoptive and foster parents to be sued over its restrictions in the past year.Florida is the only state that statutorily prohibits gay and lesbians couples from becoming foster parents, according to the National Adoption Information Clearinghouse. Utah bars non-heterosexuals from state-sponsored adoptions based on a rule approved by the Child and Family Services Board, which makes policy for the state Division of Child and Family Services. The Beehive State also could join Arkansas as a state that bans gay and lesbian couples from taking in foster children.
The Utah Legislature is considering two bills that would codify the DCFS adoption policy and extend it to private adoptions. The measures also preclude the state from placing children in foster care with parents who wouldn't qualify as adoptive parents under the statute. Utah would be the only state with laws restricting both adoption and foster care if those laws were passed.
"I really think the trend is to not adopt these types of policies," said Jennifer Middleton, an attorney with the ACLU's Lesbian and Gay Rights Project.
Other than Florida, no states explicitly bar non-heterosexuals from state-sponsored adoptions or foster care. Proposed legislation to that end failed in six states in the past year. New Hampshire recently repealed its 12-year-old prohibition. In Connecticut, sexual orientation of a prospective adoptive parent may be considered but is not the determining factor in placement, according to the federally funded national adoption clearinghouse in Virginia.
Utah's policy prevents adults living under one roof who are not related by legal marriage, blood or adoption from adopting children. That means same-sex couples, unmarried straight couples and polygamists can't adopt.
"To say (homosexuals) are the object of this policy is not true," said Scott Clark, chairman of the Board of Children and Family Services.
Clark, a Salt Lake attorney and adoptive father of 19 children, said the police blotter is full of cases in which a woman's live-in boyfriend has shaken or beaten a young child. In one instance the state allowed a polygamist family to adopt, he said.
The DCFS board wants to prevent those types of situations, Clark said.
Two gay men and a lesbian filed a complaint in federal court in November to become plaintiffs in a lawsuit Utah Children filed against DCFS and the DCFS board. The three are challenging Utah's adoption policy as discriminatory.
The Utah Attorney General's Office has filed a court brief in response to Utah Children's lawsuit defending the rule, arguing it does not discriminate on the basis of sexual orientation. The document cites studies that say children raised by gay parents are more likely to be poor, sexually active and not well educated, and a quarter of them express homosexual interest.
Middleton said the brief makes it more clear to her the adoption ban is aimed at lesbians and gay men.
The words homosexual, gay or lesbian do not appear in Utah's policy or in the proposed law. Bills sponsored by Sen. Howard Nielson, R-Provo, and Rep. Nora Stephens, R-Sunset, would prevent cohabiting couples, regardless of sexual orientation, from adopting adopting children. It would define cohabiting as living with another person in a sexual relationship.
The statute in Florida and the rule in Arkansas are more explicit.
Florida expressly prohibits gay men and lesbians from adopting children and has since 1977.
In Arkansas, the Child Welfare Agency Review Board, after heated statewide debate, adopted a policy last year preventing "homosexuals" from becoming foster parents.
Arkansas does not have a law restricting gay men and lesbians from adopting. It does, however, require prospective adoptive parents to be legally married for at least two years. The state does not recognize same-sex marriages. But it has a provision for a waiver of the marriage requirement based on individual circumstances.
The ACLU filed lawsuits challenging the laws in Florida, Arkansas and Utah.
ACLU attorney Leslie Cooper, who is handling the Florida case, said it's not a coincidence that several states have recently considered or approved rules against same-sex adoptions. She sees it as a movement of the "religious right in terms of their efforts to limit the rights of gay men and lesbians."
Clark said the board's goal in approving the policy is to place children where they have the best possible chance to succeed -- a home with a mother and father. "It's motivated," he said, "by the best interest of the child."