In December of 1997, New Jersey became the first state to explicitly allow lesbian and gay couples to adopt children jointly and on an equal basis with married couples. As a result of a favorable ruling in Holden and Galluccio v. New Jersey Department of Human Services, Bergen County Superior Court (1997), Jon Holden and Michael Galluccio became the legal parents of Adam Holden Galluccio, age 2. Justice Sylvia Moses, the presiding judge in the case, ruled that the New Jersey Department of Youth and Family Services (DYFS) violated three state adoption statutes¹ by disallowing same-sex adoption. This class action lawsuit was filed by the American Civil Liberties Union (ACLU) on behalf of homosexual couples in New Jersey.

The New Jersey agreement has the force of law and is effective immediately, annulling the state DYFS policy against joint adoptions by unmarried partners and empowering unmarried couples who believe they’ve experienced marital status or sexual orientation discrimination in state adoptions to seek relief in court, including recovery of legal costs. ² The ruling does not apply to private adoptions. While it remains to be seen whether future court decisions in other states regarding homosexual adoption will follow suit or backlash, public debate regarding the legality of the issue continues.

Robert Knight, director of cultural studies of the religious right’s Family Research Council (FRC), denounced the ruling as "a victory for homosexual activism and a defeat for children already bruised in life and in need of an intact, committed husband-and-wife family."³ Kristin Hanses, another spokeswomen for the FRC, said: "Children need a role model, both male and female. Every child has a right to a mother and a father."⁴ Opponents of homosexual couple adoption contend that the joint relationship of a mother and father contains essential characteristics needed in child rearing that are not provided by homosexual couples. They claim not to discriminate against same-sex couples on the basis of sexual orientation itself, but claim that because of the very nature of the homosexual relationship, these couples cannot provide a child an ideal environment.

For advocates of homosexual adoption, according to Mary Bonauto of the Boston-based Gay & Lesbian Advocates & Defenders, "Sexual orientation is not the issue. Parenting ability is the issue." ⁵ Lenora Lapidus, the ACLU lawyer who handled the case, says, "We think this is a very significant victory because the state will now judge all parents based on their abilities to raise and care for a child, not on their sexual orientation or marital status." ⁶ Supporters of the homosexual cause argue that sexual orientation or marital status does not affect the "parenting ability" of the adoptive parents.

Clearly, the divisive issue here is whether same-sex couples can provide children with a stable home, fit for rearing children. Though the New Jersey adoption statutes contain no clause explicitly barring homosexuals from adopting, other states’ statutes do. Are the states that prohibit homosexual couples from adopting "deny[ing]...person[s] within [their] jurisdiction the equal protection of the laws?" ⁷

To answer this question, it is instructive to examine Baehr et al. v. Lewin, No. 15689 Haw. (1993), in which the Hawaii Supreme Court upheld state bans on homosexual marriages. In the course of the trial, Plaintiff Ninia Baehr attempted to prove that same-sex marriage partners can provide an ideal home for children, although this claim was backed by minimal effort. In Baehr et al. v. Miike, No. 91-1394 Haw. (1996), Ms. Baehr appealed the 1993 decision. Unlike in Baehr et al. v. Lewin, the central thrust of her argument was that same-sex couples can provide ideal homes for children. The Court ruled in favor of Baehr this time, overturning the 1993 decision, declaring homosexual marriage legal in Hawaii. As a result, the Court implicitly affirms the claim that same-sex couples can provide an ideal environment for child rearing.

To put this case in context, we must examine relevant case law. The bold decision parted with the long-standing American and English common law notion that marriage is a "legal union of one man and one woman as husband and wife" Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187, 1193 (1974).⁸ The courts have consistently specified marriage as a relation between members of opposite sexes: "[T]he intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which, always and in every age, it has fostered and protected" Griswold v. Connecticut, 381 U.S. 479 (1965) (Goldberg, J., concurring). Given such historical context, we can more accurately comprehend the 1996 Hawaii Court’s sharp break from centuries of convention marital practice. Justice Goldberg recognized that judges "determining which rights are fundamental" must look not to "personal and private notions," but to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] ... as to be ranked as fundamental." The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’" Griswold v. Connecticut, 381 U.S. 493, 85 at 1686-87 (Goldberg, J., concurring).

Namely, the 1993 Hawaii Court did not believe that a right to same-sex marriage was so rooted in the traditions and collective conscience of the American people that failure to recognize it would violate basic principles of liberty and justice. It recognized "that a state may deny the right to marry only for compelling reasons" Salisbury v. List, 501 F.Supp. 105, 107 (D.Nev.1980). The "compelling reasons" were: (1) there is no explicitly or implicitly enumerated right for same-sex marriages in the United States Constitution or Hawaii Constitution; and (2) common law does not furnish a right to same-sex marriage.

In 1996, the Court was convinced families headed by heterosexual partnerships are no better off, factually or theoretically, than families headed by same-sex couples. The Court overturned the 1993 decision, in favor of Plaintiff, stating: "Defendant has failed to present sufficient credible evidence which demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage."⁹ To fully understand the issues involved in cases such as this, it is necessary to focus on the arguments presented by both sides used in their attempts to convince the court whether homosexual couples can be model parents, and whether they are tantamount to husband-and-wife couples in this role.

Prior to the 1996 case, Defendant (Miike) stated that "there is a compelling interest in protecting the health and welfare of children..."¹⁰ Defendant also asserted "[t]he State of Hawaii has a compelling interest to promote the optimal development of children ... It is the State’s policy to pursue the optimal development of children, to unite children with their mother and fathers, and to have mothers and fathers take responsibility for their children."¹¹ Faced with the burden of proof, Defendant presented testimony from several expert psychiatrists, specializing in child development. Defendant intended to prove, with the aid of these psychiatrists’ research on and experience with same-sex couples, that they are not adequate child-rearers. Plaintiff, not obligated to meet a burden of proof in this particular case, nevertheless presented testimony from expert psychiatrists as well, attempting to prove that same-sex couples could provide an environment sufficient to raise a "happy, healthy, and well-adjusted" child. According to the Court, Defendant failed to prove that same-sex couples would adversely effect the development of children. Let us examine why.

First, the Court recognized a "diversity in the structure and configuration of families"¹² within American society. Children are being raised by their natural parents, single parents, step-parents, grandparents, adopted parents, foster parents, gay and lesbian parents, and same-sex parents.¹³ According to the Court, society’s present deviation from traditional marital arrangements within the American family hardly makes same-sex parenting seem drastic. Secondly, the Court labeled Dr. David Eggebeen’s statistical evidence pointing to high break-up rates among serious homosexual couples out-of-date, since the data was recorded nearly twenty years ago. Thirdly, the Court was convinced that "unique paternal and maternal contributions which are important to the development of a happy, healthy, and well-adjusted child [are] not essential."¹⁴ The Court was also convinced that psychiatrists’ studies and testimonies revealed that children raised by same-sex parents were as "happy, healthy, and well adjusted" as children raised in a male-female parent setting.¹⁵

In making this ruling, it appears as if the court ignored several pertinent facts. First, the Court’s finding of an increase in children being raised in non-traditional family settings in irrelevant. Plaintiff claimed that children in American society "are going through fundamental changes in the structure of childhood... It’s common today to find children in single parent families,... living with a mother who never married,... in remarried families,... in dual earner families where both parents participate in the type of work,... whose parents never married and they’re cohabiting."¹⁹ It is clear that Plaintiff is marking a societal trend away from the traditional family unit, and is trying to discount application of common law theory here. Yet, the issue is not how the family unit has changed; instead, the issue to be addressed in relation to these findings is whether society and children are worse, as well, or better off with these changes. Such relevant factual evidence (for or against the Plaintiff’s cause) has not been provided.

Second, statistical data that showed high break-up rates among serious homosexual relationships was held by the court to be old and discounted. Dr. Eggebeen testified for the defense that cohabiting same-sex couples are less stable than married couples.²⁰ Eggebeen claimed that there was a substantially higher break up rate for gay men, lesbian and cohabitors.²¹ The Court, however, deemed his conclusion inapplicable since the data to which he referred was more than twenty years old and thus, out-of-date. Plaintiff witness Dr. Pepper Schwartz, in a further attempt to discredit these findings, speculated that the entry of AIDS into gay male life and society has made people more cautious and less likely to have multiple partners and more desirous of settling down. According to Schwartz, "[g]ay men, in particular, have been hardest hit by the disease and it has made monogamy and couplehood more attractive."²²

Further statistics undermine such speculation, however. According to the Centers for Disease Control and Prevention (CDC), "the population most affected by AIDS in the United States continues to be gay men (42% of all new AIDS cases in 1995)."²³ The study performed by the CDC shows that homosexual promiscuity is still prevalent; there seems to be no newfound pattern of commitment among same-sex couples that would lead us to believe their relationship are anymore stable than in 1980-1, when Dr. Eggebeen's data was collected.

Third, the Court stated that "[a] father and a mother can, and do, provide his or her child with unique paternal and maternal contributions," because of the nature of the relationship between the sexes.¹⁶ Such findings suggest that households with husband and wife parents are preferred, in the sense that they have distinguishing characteristics that are a benefit to the child. For instance, there are unique paternal contributions, which have a positive effect on (1) a child’s self-esteem and feelings of being loved and important to the family; (2) a child’s ability to cope with frustration and discouragement; (3) a child's interest in generative or creative matters; and (4) a child’s gender flexibility.²⁶ Plaintiff has not shown beneficial contributions unique to same-sex parents.

Finally, the classification "happy, healthy, and well-adjusted" used to describe children (or anyone, for that matter) is ambiguous, in that it does not provide one with a common, practical, or specific standard with which to analyze children. The extensive comparison of children raised by same-sex couples to those raised by husband-and-wife couples led to entirely ambiguous results, at best. Several of the expert psychiatrists who testified stated that the respective children reared under the separate environments were equally "happy, healthy, and well-adjusted."²⁷ Yet, not one psychiatrist or counsel involved in the case outlined the specific standards of these terms. As a result, evidence linked to such vague terms is inconclusive. Not only are we left to ponder what the psychiatrists meant by "happy, healthy, and well-adjusted," but we also have no knowledge of the age of the children compared in these psychological studies. Are the children compared at age five, twelve, eighteen, or forty-five? To truly gage the effects or non-effects, both short-term and long-term, of a homosexual upbringing, the entire lives of persons raised in such a home environment must be compared to the lives of those raised in husband-and-wife homes. Only then can such a study truly be called exhaustive and conclusive.

Because the 1996 Baehr Court failed to resolve or address the above issues, its decision rests on careless evaluations made with ambiguous standards. In the course of these judgments, the Court failed to objectively view shortcomings of same-sex parents.