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Cardozo Journal of Conflict Resolution

Abstract

This Note addresses the intricacies involved in same-sex couples, now legally married, overcoming state-placed legal obstacles in order to adopt children. The simple answer is to wait and see what the Supreme Court has to say about same-sex adoption. However, it is more complicated than that. Firstly, it took two years for Obergefell to reach the Supreme Court from the District Court, and it took this country two hundred and thirty nine years to legalize same-sex marriage. In other words, it might be years until the Supreme Court addresses this issue. Secondly, if this issue is litigated in court, the children involved will always lose regardless of who prevails. If these types of conscience clause laws are enacted by states, adoption agencies with religious affiliations "win" because agencies are able to act consistently with their religious beliefs. But in actuality, children are being denied an opportunity to be adopted by a same-sex couple. Conversely, if these laws are struck down, LGB couples "win" because they have access to more children who are in need of loving homes, but religious agencies will be forced to choose between their religious beliefs and the law of the land. This outcome could potentially lead to all religious agencies closing their doors. Unfortunately, this would mean that children residing in private agencies would be uprooted and transferred to foster care, which could be a challenging and emotional transition for them.

The solution that this Note proposes is to utilize a form of Alternative Dispute Resolution ("ADR") in the American adoption system in order to help reach the most important objective: maximizing the number of children adopted into loving homes. Both same-sex couples and religious adoption agencies have incentives for choosing negotiation over litigation: everyone wins.

Disciplines

Dispute Resolution and Arbitration | Law

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