Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoption

In this Essay, Schacter examines recent judicial decisions on so-called "second parent adoption," in which one partner in a gay or lesbian relationship seeks to adopt the other partner's child without terminating that partner's legal relationship with the child. With the recent boom of lesbian families in particular, the availability of such adoptions has been litigated in several states. Although the results have been uneven, this has been an area of significant progress for same-sex families, with courts in at least twenty-one states having authorized such adoptions. The appellate rulings in this area have been decisions involving statutory interpretation and have turned on how courts construe existing adoption laws, which are characteristically ambiguous on this point.

Favorable decisions have fallen victim to claims of "judicial activism," premised on the notion that considerations of democratic theory require legislatures-not courts-to decide whether second-parent adoptions will be available. Schacter examines this democratic objection and finds it lacking. She argues that even on a conventional, majoritarian account of democracy, the appellate decisions authorizing adoption are on solid ground. She then argues that this conventional account of democracy is impoverished in ways that are nicely illustrated by these cases and concludes that the cases, in fact, exemplify and are consistent with a thicker set of democratic values that emphasize social pluralism and a strong commitment to social equality.