Friday, November 7, 2014

It's the children, stupid! ...Or why Ryanne, Nolan, and Jacob still don't have two legal parents

The Sixth Circuit Court of Appeals has upheld the bans on same-sex marriage in four states: Michigan, Ohio, Kentucky, and Tennessee.  I hope the Supreme Court hears the case (or the Sixth Circuit, en banc) and reverses, but I have another fish to fry here.

I have been writing about the Michigan Case, DeBoer v. Snyder, since it was hijacked from its original purpose.  April DeBoer and Jayne Rowse wanted to both be recognized as the legal parents of the three children they are raising.  In 2012, they filed a federal court challenge to Michigan's refusal to grant second-parent adoptions.  Second-parent adoption is one of the great legal innovations of the last three decades. When two unmarried persons are raising a child together, second-parent adoption allows both of them to attain the status of legal parents. It is a variation on the more familiar stepparent adoption; the only difference is that second-parent adoption does not require the two parents to be married.  It has been the mechanism under which countless numbers of same-sex couples have been recognized as the legal parents of their children.  And it's been used by others: a gay man and his close, heterosexual, female friend co-parenting a child initially adopted by the woman after the two were unable to conceive through insemination; divorced heterosexual couples who had a foster child they wished to continue raising together whose adoption was not completed while they were married; a mother and grandmother; two sisters; and of course different-sex couples who simply did not want to marry.  (The case Lambda Legal brought that established second-parent adoption in New York had a lesbian couple and an unmarried different-sex couple as their clients). A less common mechanism, derived from second-parent adoption, is third-parent adoption, which leaves a child with three legal parents.  This mechanism has enabled a child raised by a lesbian couple and a known donor to have three legal parents when all those parents agree that their arrangement is best for the child.

Every adoption requires a judge's finding that the adoption is in the child's best interests.  All DeBoer and Rowse wanted was for a judge to examine their family and make that determination.  Although there was no Michigan Supreme Court case on the subject, the state's attorney general had written an opinion that Michigan law did not permit second parent adoption.  Although it might have been better for DeBoer and Rowse to petition the state court for adoption and see their request through the state court system, that is not what they did.  They filed a challenge under the US Constitution in federal district court in Michigan.  In this post,  I document what went wrong when the judge decided the case was really about Michigan's marriage ban.  His reasoning was that if the couple could marry, then they could do stepparent adoptions.

But my beef remains with the couple's lawyers, who allowed the case to be hijacked in that direction without simultaneously demanding a ruling on the separate claim that categorical refusal to grant a second-parent adoption petition when in a child's best interests violated the rights of both the parents and the children.  Here is what the trial judge said in October 2013, in a footnote:

The Court expresses no view on the constitutionality of [the statute that] limits those eligible to adopt children to single persons and married couples regardless of sexual orientation or gender. It does not prohibit same-sex partners from marrying and, thereafter, adopting children. While plaintiffs make a colorable claim that they and their children are, in fact, injured by their ineligibility to petition for joint adoption, such injury is not attributable to defendants' enforcement and defense of [the adoption statute]. Plaintiffs may not jointly adopt their children because they are not married. And plaintiffs may not marry because any legal form of same-sex union in the state of Michigan is prohibited by the [state's ban on same-sex marriage]. Thus, the relief plaintiffs request hinges on the constitutional validity of [that ban].
The case then proceeded to trial on the marriage issue (which I wrote about here and here), culminating in the favorable ruling that the Sixth Circuit reversed yesterday.  The trial judge never did squarely address the second-parent adoption claim on its own, and the lawyers for DeBoer and Rowse did not make him.  They should have.  The judge was factually wrong when he said that: "Plaintiffs may not jointly adopt their children because they are not married."  They could not jointly adopt because Michigan does not allow second-parent adoption.

Consider this.  If the lawyers had maintained the separate claim, they would have argued that even if the marriage ban was upheld the second-parent adoption ban should be struck down.  Since the judge would have still ruled that the marriage ban was unconstitutional, he might have ruled that he did not have to reach the separate question of the denial of the second-parent adoption.  But then the lawyers would have appealed that issue  as a cross-appeal to the state's appeal of the ruling striking down the marriage ban.  THEN, the Sixth Circuit, after reinstating the marriage ban, would have been required to rule on the distinct issue of whether the state may deny a child two legal parents simply because those parents are not married.

I cannot guarantee that the couple would have prevailed in the Sixth Circuit on their adoption claim. But from reading the Sixth Circuit opinion I can guarantee it would have required a completely different analysis, one entirely grounded on the state's reasons for denying the children the emotional and economic well-being that comes when both of their parents have full legal recognition.  Gone would have been the discussion of the tradition of different-sex marriage and the condescending tutorial on the democratic process.  In its place, the court would have had to scrutinize why Michigan allows a single person to adopt but not two single persons, even when they have a track record of years of co-parenting.

The anecdotal evidence is trickling in that judges in some marriage equality states are denying second-parent adoptions and requiring a couple to marry and do a stepparent adoption.  The marriage equality movement told us attaining the right to marry was about giving couples that choice, not making it mandatory.  When a judge makes it mandatory, the judge takes his or her eyes off the children and what is in their best interests.  That's bad for couples who choose not to marry, bad for co-parents who are not romantically intimate partners, and, most of all, bad for their children.  But in this case I fault the LGBT legal groups that let DeBoer v. Snyder become a vehicle for the goal of marriage equality, simultaneously -- and unnecessarily -- sacrificing the one thing the couple wanted from the start...a second-parent adoption.

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