Arizona Gov. Brewer signed SB1188, giving adoption agencies a married-couple preference amid state ban on same-sex marriage

On April 18, 2011, Arizona Gov. Jan Brewer signed Senate Bill 1188 into law, amending A.R.S. § 8-103 to require any entity licensed to place children for adoption to give "primary consideration" to placement with "a married man and woman." Under the statute, a single individual may still be considered as an adoptive parent, but only where one of six enumerated conditions applies: no married couple is available, the person is the child's legal relative, the child would otherwise remain in extended foster care, there is an established meaningful relationship between the child and the person, a birth parent places the child with the person, or the child's best interests otherwise require it. The bill passed the Arizona Senate and House along largely party lines before reaching Brewer's desk.

At the time SB1188 was signed, Arizona's constitution — amended by voters via Proposition 102 in 2008 — banned marriage between same-sex couples. Because the new adoption statute's top preference tier was reserved for married man-woman couples, no same-sex couple could structurally qualify for that preference regardless of their fitness as parents; a same-sex couple could only be considered under the same limited exceptions available to single individuals. ACLU attorney James Essex, who specializes in LGBT issues, called the law "based on stereotypes and cultural assumptions about gay people being bad for kids," arguing that social-science research on child outcomes does not support the distinction. Supporters, including Concerned Women for America president Wendy Wright, defended the law as reflecting research that children benefit from being raised by a married mother and father.

The law is a marital-status preference and tie-breaker rather than a categorical bar: unlike adoption statutes in states such as Utah and Mississippi that flatly prohibited unmarried-couple adoption, Arizona's law left single-individual adoption legally available under its enumerated exceptions. Its discriminatory effect nonetheless followed directly from the state's simultaneous ban on same-sex marriage, which foreclosed the one path — marriage — by which a same-sex couple could reach the law's preferred tier.