I have received this question enough times that it was time to blog on it.
Could Trump Eliminate Gay Adoptions?
No. Adoption law is created by state law, not federal law. Each state is free to decide who may adopt, and how. In Georgia, for example, any adult over the age of 25 years (or married and under 25 years of age) may adopt, as long as the adoptee is at least 10 years younger that the adoptive parent. The parent must also be physically, financially, morally and mentally able to be a parent, a standard that is evaluated by a Georgia state court judge.
So, if a gay couple is adopting a child privately, without the use of any adoption agency, the entire adoption process is completed by the state. This is true even if the child comes from another state, in which case the couple must comply with the laws of both states, but NOT the federal government.
Such private adoptions would include: stepparent adoptions; second parent adoptions; relative adoptions; and any other adoption where the placement was made privately, without the use of an adoption agency to match the gay person or couple with the birth mother.
What about agency adoptions, and adoptions from foster care, then??
Trump could sign an executive order that limits the ability of federal contractors to provide services to gay people. This might affect adoption agency that receive funds, such that they might not be able to serve our population. However, some agencies might not receive federal funding, or might choose to reject the funding in order to continue serving our community.
In my option, it is less likely that an executive order would affect state foster care adoptions. These adoptions are handled by state employees, not federal workers. However, it is true that federal funds are provided to the states in the form of adoption subsidies for special needs adoptions. But that would likely not classify the foster care offices as a “vendor,” and the fallout from withholding funding for adoptions for special needs children would be great.
Could the executive order be challenged legally in the court:
Absolutely! There would be an immediate challenge by the ACLU, HRC and every national adoption and lgbt organization in the country. This executive order would violate the Equal Protection and Due Process Clause of the U.S. Constitution, in the same way that marriage bans did. And the case would be heard by a Supreme Court that, currently, has the exact same composition as the court that heard the marriage case.