Hastings Race and Poverty Law Journal


This article advances an orphan-centered constitutional challenge to placement bans that highlights the impact of these bans on Black orphans. It asserts permanency, and the stability and security that permanent placement provides, as interests embraced by the best interests of the child standard and protected against state infringement by Substantive Due Process guarantees. It also argues that orphans possess a negative liberty interest in freedom from state action that categorically forecloses adoption without conducting an individualized review of the orphan's needs or the competencies of the potential parents. This article's challenge to the constitutionality of these bans is situated within the reality that for many orphans, particularly Black orphans who are overrepresented in the child welfare system and who are more difficult to place, the option is not placement with homosexuals or placement with heterosexuals; rather, it is placement or non-placement. This article advances the best interests of the child standard as a restraint on the state's parens patriae authority. Examining the comparative harm framework utilized in the trans-racial adoption context this article, weighs the documented harm that orphans experience when they remain in extended temporary or institutional care against the documented benefits of adoption by gay and lesbian parents. It concludes that orphan placement bans are an improper exercise of the state's parens patriae authority because they violate rather than serve orphans' best interests, and the state has no constitutionally compelling or legitimate justification for categorically foreclosing placement options that best serve orphans' interests.

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