Wednesday, October 16, 2013

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.

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