Nassau County Family Law Blog

Monday, February 22, 2016

A Strange Part of Adoption History

Why did gay adult adoption take place?

 Now, when gay marriage has become a legal right in all parts of the United States, looking back at the rampant discrimination against gays since the founding of this country may seem almost surreal. In some ways, it's like looking back at the history of civil rights in general, full of nearly unbelievable injustice. We are all aware that discrimination of all types is still alive and well in the United States, but legal advances have certainly been made.

The question is: What did gay couples do to ensure their partners inherited their estates before laws were changed? In some cases, long-term gay couples turned to the only legal recourse they had in order to enable their partners to inherit their estates: one partner legally adopted the other.

When Discrimination Was Legal

Below are some examples of how far we've come in gay rights, even during the past decade.

[1] In an attempt to liberalize the laws of his day, Thomas Jefferson wrote a law in Virginia in 1779 proposing castration as a punishment for men who engaged in sodomy, instead of the punishment of death that was on the books.

[2] Prior to 1962, when Illinois decriminalized consensual homosexual acts, such acts were considered felonies in every state in the Union, punished by long prison sentences.

[3] The Supreme Court did not strike down laws against sodomy throughout the U.S. until 2003.

[4] As late as 1966, gays and lesbians could not legally buy a drink in a NYC bar.

[5] Even after the Stonewall riots of 1969, the American Psychiatric Association still categorized homosexuality as a mental illness. The designation of homosexuality as a mental disorder did not occur until 1973.

[6] Until gay civil unions became legal, at first only in Vermont in 2000, gay couples had no legal rights to be considered "family" when it came to many important matters, such as visiting partners in the hospital or inheriting assets.

Reading these examples, it becomes clear why gay couples felt they had to find a legal loophole to keep their families intact and financially solvent. In a notable case of adult gay adoption, Bayard Rustin, an early proponent of civil rights, adopted his partner, 27-year-old Walter Naegle, in 1977.

Rustin was no stranger to fighting the system -- he was in charge of logistics for the Rev. Martin Luther King, Jr.'s March on Washington for freedom and jobs, and he was instrumental in working to integrate the New York City schools. Realizing that, since he was more than 30 years older than his partner, he would almost certainly predecease him, he wanted to ensure that his life partner would inherit his estate. In 1982, there were few options available, but the couple saw a newspaper article about a Midwestern couple who had tried (unsuccessfully) to adopt one another in order to form a legal bond. Rustin suggested that they might try the same tactic.

It was far from simple. First, Naegle's biological mother had to legally disown her child. Then a social worker had to visit the Rustin-Naegle home to determine if it was "fit for a child." The social worker, Naegle recalled, understood perfectly well what the situation was, but was actually there to determine that neither the older man, nor the younger one, was being preyed upon.

In their case, the strategy proved successful. When Rustin was hospitalized with a perforated appendix and peritonitis, Naegle was able to visit him in the hospital. When Rustin died, Naegle was executor of his will and inherited as planned.

Fortunately such manipulations are no longer necessary in this country, but adoption, even of the ordinary kind, can require jumping through some legal hoops and a great deal of patience. Any couple, gay or straight, interested in adopting a child should work with an experienced family lawyer to facilitate the process.

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