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South Dakota Gays Can Marry, But Can They Adopt Kids?

Homosexual couples now have the right to get married in South Dakota, thanks to the Supreme Court and the Eighth Circuit. But can homosexual couples adopt children?

Like many states, South Dakota has no explicit prohibition on homosexuals adopting children. However, our adoption statutes provide for adoption by individuals, not couples. Where couples are involved, our statutory language assumes heterosexual couples—for instance, SDCL 25-6-3 says a married man must have his wife’s consent to adopt a child, and a married woman must have her husband’s consent.

South Dakota is joining North Dakota and other states that banned gay marriage in cleaning up its language for potential gay adopters:

But many of those states are changing their policies in the aftermath of the Supreme Court decision. That’s the case in North Dakota, where the law allows single people to adopt but specifies that adopting couples must be “husband and wife.”

“It’s simple,” said Julie Hoffman, adoptions administrator for the state Department of Human Services. “Now that gay couples are allowed to marry, they’ll be treated like any other married couple who’s adopting.”

Georgia, Kentucky, Louisiana, Missouri, Ohio and South Dakota also are changing their practices to allow married gay couples to go through the adoption process together. Some of them said they’re starting to update their forms to make them gender neutral [Rebecca Beitsch, “Many States Still Prohibit Gay Adoption,” Governing, 2015.08.19].

Fixing some statutory language may not be enough to ensure all married couples’ right (?) to adopt children. Attorney General Marty Jackley maintains that county officials have a right to discriminate against homosexual seeking marriage licenses based on their personal religious beliefs. While absurd and legally wrong, the A.G.’s thinking opens the door for public officials to discriminate against homosexuals in the adoption process. Consider the statutory requirement of a home study and background check on parents seeking to adopt:

No person may place a child in a home for adoption until a home study has been completed by a licensed child placement agency as defined in § 26-6-14, the Department of Social Services, or a certified social worker eligible to engage in private independent practice as defined in § 36-26-17. Any person who submitted home studies under this section or under § 26-4-15 prior to July 1, 1990, may continue to submit home study reports without meeting the above requirements. A home study shall include a fingerprint based criminal record check completed by the Division of Criminal Investigation and a central registry screening completed by the Department of Social Services. In addition, no child who is in the custody of the Department of Social Services may be placed in a home for adoption until a fingerprint based criminal record check has been completed by the Federal Bureau of Investigation for each adopting parent. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor [South Dakota Codified Law 25-6-9.1].

A Department of Social Services official assigned to do a home study could blackball a gay couple for defying God’s will. Another DSS official could delay the central registry screening or “lose the paperwork.” A DCI agent could refuse to process the fingerprints. I assume that Attorney General Jackley would give those officials the same leeway to shirk their duties for religious reasons that he wants to give county officials who balk at issuing marriage licenses to Adam and Steve.

Obergefell v. Hodges did not resolve all of the questions gay couples face in adopting and raising children. One of the plaintiff couples in this year’s landmark Supreme Court decision brought their suit based on Michigan’s refusal to recognize their legal marriage as a basis for adopting children, but Obergefell only gave their marriage legal status; it did not directly address whether states can restrict homosexual couples from adopting children. Married couples don’t automatically get to adopt children; they still have to clear reasonable hurdles raised by the state to check their fitness to parent. If a DSS official or DCI agent decides a South Dakota couple is unfit to parent because the parents are both dudes and Jesus doesn’t dig that, we’ll have another court case on our hands.


  1. mike from iowa 2015-08-20

    Eventually Jackley will run out of other people’s money to lose in futile court appeals. Since he doesn’t want to obey the law of the land,it is past time to put him out to pasture permanently.

  2. clarity 2015-08-20

    Yes- I know of 2 specific cases where that has happened. However here is how- one partner went through invitro. the other partner adopted after delivery.

  3. caheidelberger Post author | 2015-08-20

    Clarity, thanks for letting us know! It’s good to hear we’ve got at least two couples who can show that South Dakota won’t stand in a same-sex couple’s way of becoming parents. Do you know of any SD guy-guy couples who have adopted?

  4. MC 2015-08-20

    it is time to clean up the sha-bang mess.

    Return the institute of marriage back to the church, Where marriage is between one man and one woman. They would have zero legal status as husband and wife She could not take his name or share their wealth. They can have children, but only one would responsible for them.

    then set up domestic unions, presided over by a judge, magistrate or other court officer, no exchanging of vows, only signing of contracts. Then they have legal status as partners, they can share the wealth, they can take each other name if they so choose. They can get insurance coverage together etc. They can even have or adopt children they would both be responsible for little ones. It can be two men, two women, or whatever so long as they are able to enter into a contract.

    That takes care of the separation of church and state. Churches are protected from having to preform same sex marriages. Partners in unions get all of the legal benefits of today’s current marriages. There will have to be clean up of some of the wording of the state laws, but that is a minor detail.

  5. larry kurtz 2015-08-20

    Nothing says bipartisanship like denying marriage equality to consenting adults while defending religionists raising money under the guise of altruism.

  6. MC 2015-08-20

    I believe Kelo did a story on Male couple adopting back in the late 90’s or early 2000’s however I can’t find it

  7. Deb Geelsdottir 2015-08-20

    MC, Churches and Pastors can Refuse to Officiate at Any Marriage Any Time. That has not changed and will not change as marriage for all becomes the norm. Stories saying the opposite have swirled across the Internet. They are not true.

    Doug Wiken and I and many others have repeatedly advocated for a clear separation of church and state regarding marriages. Everyone has a right to marry another, equally willing adult, in a state sanctioned ceremony and sign the appropriate, legally binding contract, a marriage license. That’s not a problem.

    Let the churches perform weddings as they choose. The happy couple goes to the county office, signs the contract, and they are IRS married. Then, if they choose, they go to church to have a wedding in front of crowds of people. They wear gowns, tuxedos, exchange rings, light candles, sing songs, are blessed and prayed over, celebrate with a reception, food and drink, etc.

    Or they go to the nearest Elvis impersonator, drive through wedding chapel on their Harley.

  8. Roger Elgersma 2015-08-20

    Most homosexuals are actually bisexual. So they can make babies anyways they want to, and do. I saw a bridal gown show on TV were two gay guys were getting married and they were shopping for their grooms maids dresses. They each had two grooms maids and the six all went on the honey moon together. Statistics show that homosexuals have many more mates per year than heterosexuals.

  9. grudznick 2015-08-20

    Mr. Elgersma, if I didn’t know you as well as I do I might think you are making things up.

  10. grudznick 2015-08-20

    Lar, do you have the list of emails of all the New Mexican politicians cross checked yet?

  11. larry kurtz 2015-08-20

    Waiting for John Thune’s name to pop up, actually.

  12. grudznick 2015-08-20

    If anything could get you aroused, Lar, that would be it.

  13. larry kurtz 2015-08-20

    Well, finding Kristi Noem’s profile might be even more arousing, init; but, she’d get visitation, right?

  14. caheidelberger Post author | 2015-08-20

    MC, on domestic unions, isn’t your proposal the equivalent of crossing off “Marriage” from the top of every marriage license and scribbling in “Domestic Union”? What difference does it make if the state recognizes all such unions as “marriages” for adoption, child custody, and other important legal purposes while churches extend that recognition only to followers of their unique doctrines?

  15. Notinks 2015-08-21

    Having worked within the arena of child abuse and neglect in SD over 10 years ago, I can tell you that gay couples have been fostering and adopting for years. DSS is desperate for good homes willing to take kids in and they recognized long ago that gay couples were a good resource for them. I often wondered if the anti-gay forces had any idea this was taking place.

  16. caheidelberger Post author | 2015-08-21

    Notinks, it’s good to hear that gays have been able to adopt for years here. I wonder how the anti-gay forces would respond to the conflict between their “family” values and the desperate need for good, willing adoptive parents.

Comments are closed.