The Scholar: St. Mary's Law Review on Race and Social Justice


Tracy Kasparek


Legislators and judges must keep their own personal biases of homosexuals out of their analysis, particularly when considering if same-sex couples should be foster parents. Legislators and judges personal biases are rooted in unsubstantiated beliefs that homosexuals are mentally ill, lack the same maternal or parental instincts as hetersexuals, and may turn the children into homosexuals. None of these beliefs are supported by any type of evidence. On the contrary, studies indicate that homosexual couples are as fit for parenting as heterosexual couples. Furthermore, homosexual couples tend to take the hardest children to place such as: minority children, children with a history of abuse or neglect, and children with a mental or physical handicap. If legislation were to pass banning same- sex couples from fostering children, these children and many others would have to become wards of the state. Although some legislators have attempted to make it unlawful for same sex couples to be foster parents, no such legislation has passed. Furthermore, it is unlikely that similar laws will pass because there is no relevant link between sexual orientation and quality of parenting. Nonetheless, judges have disqualified same sex couples from becoming foster parents because they find it is was not in the best interest of the child. These judges have abused their discretion in considering a person’s sexuality as a factor. Following Lawrence v. Texas, any practice scrutinizing a person’s sexuality is unconstitutional. Therefore, it is imperative Texas courts replace the best interest of the child standard with the adverse impact test. Based on the adverse impact test, a person’s sexuality is not relevant, only the person’s propensity to be a good parent. What is important is not a person’s sexuality, but whether he or she can be a good parent.

Volume Number


Issue Number



St. Mary's University School of Law



Included in

Family Law Commons