concurring:
In joining the disposition ordered by Judge Ferren, I find it necessary to say in my own words what is, and is not, in issue here.
At the outset, I see no need to reach the constitutional issue of equal protection. Cf. In re DeF, D.C.App., 307 A.2d 737 (1973). The Adoption Statute mentions race and religion only as factors to be supplied along with other information in a petition for adoption. D.C.Code 1973, § 16-205. It does not require that the court give these factors any consideration whatever;1 it only provides that the court, after the consideration of the petition and other evidence, may enter a decree when it is satisfied that the adoptee is suitable for adoption, that the petitioner is fit and able to provide a proper home and education, and that the adoption will be for the best interest of the adoptee. Id. § 16-309. We are thus not faced with a statutory scheme separating persons solely on the basis of *795racial classifications (see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)), or an affirmative action program allegedly giving preference on the basis of racial classifications (see Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)). Therefore, however tempted one may be to re-argue interesting constitutional issues, I may refrain from doing so. Instead I may agree, magnanimously, with both of my colleagues that the statute is constitutional and add, uncharitably, that I do not think their arguments are relevant.2
I think that reversal is required in this case because the trial court, unwittingly, employed the factor of race as an impermissible presumption. In Bazemore v. Davis, D.C.App., 394 A.2d 1377 (1978) (en banc), we held that a presumption based upon the sex of a parent has no place in custody proceedings. Similarly, I suggest, a presumption based solely upon the race of competing sets of would-be parents has no place in adoption proceedings. In both instances the court is weighing the best interest of a particular child — an interest in which the human factor of love is paramount. As we noted in Bazemore, a “norm is ill suited” for making that determination and it must be made “upon specific evidence relating to that child alone.” Id. at 1383.
I do not think, moreover, that the fact that the trial court did not speak in terms of a presumption, or the fact that it might have relied upon the testimony of an “expert” (who had never met the parties) made its ruling rest on more than a presumption. The very statement of the issue confirms this fact. “[W]hen all other factors are in equipoise” [as between competing sets of prospective parents], a consideration that tips the scales on the basis of race per se (with reasoning that “potential future hardships” or questions of identity would “probably ... evolve” from interracial adoptions) is of course a consideration in the nature of a presumption. A presumption is nothing more than a guess based upon probabilities (see Bazemore, supra at 1382 n. 7) — upon probabilities that, here, have not been conclusively established.
In a custody or adoption proceeding, we are not concerned with the best interest of children generally; we are concerned, rather, with the best interest of THE child. While my colleagues are quibbling about “strict scrutiny” and “intermediate scrutiny,” a little girl is reaching school age under the care of the only parents she has even known. Because I agree with Judge Ferren that a trial court faced with such a “Solomonic”3 task, must affirmatively justify its judgment in every material respect, I would reverse and remand for a particularized determination, taking into consideration factors bearing uniquely upon this child’s adjustment and development including the significance of giving “full recognition to a family unit already in existence.” See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978). For this purpose, at least, I would downgrade the emphasis on race to the significance it should deserve.4
. While In re DeF, supra, has been cited for the proposition that race is a relevant factor in adoption proceedings, it has not been held relevant for constitutional purposes. This court declined to meet the constitutional issue in that case.
.If the statute is to be read as either of my colleagues read it, I would find it unconstitutional. While I agree that the parties’ attitudes toward race may be very relevant, I do not think that a racial classification per se is necessary to accomplish the purpose of protecting the interest of an adoptee.
In a similar context the Supreme Court has held that sex-based distinctions in a state statute governing adoptions are impermissible under the equal protection clause of the Fourteenth Amendment. The best interest of a child must be determined without resort to inflexible gender-based distinctions which do not bear a substantial relation to some important state interest. See Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979).
. See 1 Kings 3:16-28.
. While I can agree that this is a most difficult decision, my brother Newman’s discussion of the risks of interracial adoptions brings to mind a quote from the farewell speech to Congress of the last of the post-Civil War (black) congressmen. Representative George H. White (1852-1918), (replying to the suggestion of a colleague that the race question might be settled along sentimental lines when the Society for the Prevention of Cruelty to Animals shall *796overcome the difficulty of the difference between lions and lambs) observed:
But what will my good friends of Virginia do with the Bible, for God says that He created all men of one flesh and blood? Again, we insist on having one race — the lion clothed with great strength, vicious, and with destructive propensities, while the other is weak, good natured, inoffensive, and useful — what will he do with all the heterogeneous intermediate animals, ranging all the way from the pure lion to the pure lamb, found on the plantations of every Southern State in the Union? [Brown, Davis, Lee: The Negro Caravan (1941).]