October 16, 2007
TN AG Opinion on adoption by same-sex couples
On October 10, 2007, the Attorney General of Tennessee (AGTN, because the other option is TNAG) issued an opinion holding that nothing in the TN statutes prevents a same-sex couple from adopting a child. The document is available here (link opens a PDF).
The opinion asserts that adoption is purely statutory, such that courts must adhere strictly to the statutes when evaluating proposed adoptions. The statutory standard for evaluating adoptions in TN is the best interest of the child, such that the child's interest will take precedence over the would-be adopting parent where the two come into conflict. But nothing in the statutes defining who is eligible for adoption or who may adopt precludes adoption by a same-sex couple.
This is worth watching, as it may produce a legislative backlash in Tennessee. As I explain in my recent article (22 Berk. J. of Gender, Law, and Justice 135 (2007)), a Tennessee appeals court refused to recognize a lesbian petitioner as the de facto parent of her ex-partner's legal child (In re Thompson, 11 SW3d 913 (Tenn. Ct. App. 1999)). The petitioner chose not to appeal to the Tennessee Supreme Court.
On the other hand, Tennessee is one of the states that struck down its sodomy statute based on the state constitution while Bowers was still in effect (926 SW2d 250 (Tenn. Ct. App. 1996)). I can report based on personal knowledge that a state legislator wrote a bill in the late 1990s that would have prohibited lesbians and gay men from adopting or serving as foster parents, but withdrew it (on the logic that lesbians and gay men were more likely than anyone else to take babies who are HIV positive).
Also, Tennessee prohibits recognition of same-sex marriages. This opinion feeds into the ongoing controversy over the exact implications of statutes and constitutional amendments that enact such prohibitions. How far do they reach? The AGTN opinion makes no mention of that statute, which is odd if one believes that the purpose of marriage is procreation -- how could the criteria for adoption not relate to the criteria for marriage? I suspect the answer is that no one thought about this situation when they enacted the adoption statute.
We'll keep an eye on it.
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