Who says a child's two parents have to be a "couple"? Not Canada

With many states requiring same-sex couples to marry before they can both be parents of the same child, it's great to read this story out of Ontario, Canada, about two women committing to parentage without ever having had a conjugal relationship with each other.  Elaan has two parents who are very close friends.

About three years ago, a New York judge allowed a gay man to adopt the child he was already raising with a female friend.  The two friends tried conceiving a child through insemination but were unsuccessful.  They remained committed to co-parenting and arranged to adopt a child from Ethiopia.  Because they were not married, only one could adopt the child overseas.  The woman adopted the child and returned to NY, where the two petitioned to have the man do a second-parent adoption.  In that case, the court had to find that the two friends met the definition of "intimate partners" in the statute.

I want to give a shout out to Angela Kupenda, who wrote twenty years ago about the model of two African-American adults adopting a child together in circumstances where each might hesitate to take on parenting alone.

This isn't uniquely a gay rights issue, but being gay means pregnancy will not happen by chance.  It will take planning.  It calls out for creativity, more creativity than is found in limiting joint parenting to married couples of any gender combination.

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.

Maryland court's approval of same-sex marriages from elsewhere includes nod to adoption by same-sex couples

Port v Cowan, the decision of the Maryland Court of Appeals today (that's the state's highest court) that Maryland recognizes same-sex marriages validly performed elsewhere, is notable in a number of respects.  The case arose in the context of a divorce action, with the trial judge refusing to grant the divorce because Maryland does not allow same-sex marriage.  A Wyoming trial court judge did the same things a couple of years ago.  But when the Wyoming Supreme Court reversed, as I write about here, it did so only to extent of ruling that the couple could divorce in Wyoming, not that the state would recognize a marriage. The Maryland court, on the other hand, was clear that Maryland will recognize same-sex marriages from elsewhere.  Period.  In reasoning that recognizing such marriages is not "repugnant" to Maryland public policy, the court listed all the ways in which state law recognizes and protects gay men and lesbians.  Also, the state's ban on same-sex marriage -- upheld just a few years ago -- does not ban recognition of such marriages from elsewhere.  Although the legislature could write such a ban into Maryland law, that's not going to happen --- not from a legislature that just passed marriage equality!  In a cute quip, the court's opinion refers to Maryland as suffering from "multiple personality disorder" when it comes to treatment of same-sex couples.

Here's perhaps the most amazing part of this ruling -- it was unanimous! And written by the same (conservative) judge who five years ago wrote the majority opinion in Conaway v. Deane upholding the state's ban on same-sex marriage.  In other words, the same judge who wrote that the Maryland constitution does not require the state to marry same-sex couples has now ruled that recognizing such marriages from elsewhere is not repugnant to the state's public policy and therefore they are valid in Maryland under the doctrine of comity.

My favorite part of the opinion, however, is what it says about gay people raising children.  First it refers to its own decisions banning discrimination in custody/visitation disputes.  (I'm proud to say that I was appellate counsel on one of the cited cases, Boswell v. Boswell.)  Then there's a footnote that says the following:

Although the issue has not been addressed in a holding by the Court, Judge Raker, in her concurring/dissenting opinion in Conaway, expressed her view that Family Law Article § 5-3A-29 permits same-sex couples to adopt children.

Conaway is the case upholding the ban on same-sex marriage.  The code portion cited is that which says that any adult may petition to adopt a child.  No appeals court in Maryland has ruled on whether two same-sex partners can adopt a child together.  One argument for permitting it is the usual statutory construction rule that the singular means the plural.  Trial judges have been granting joint and second-parent adoptions for maybe 15 years, but without a definitive ruling from an appeals court  there was always the possibility that some appeals court, in some context, would say that the Maryland statute does not allow it.  There was absolutely no need for the court in this case to even mention same-sex couples adopting children.  So I take this mention by the judge who ruled against same-sex marriage of something written in the same-sex marriage opinion by a judge who wanted to rule in favor of same-sex marriage as a sign that he and his colleagues think adoption by same-sex couples is indeed permitted.  Yippee!!!!

Colorado ruling on "holding out" lesbian mother exactly what I predicted

The case of Wendy Alfredsen and her ex-partner's refusal to allow her access to her daughter made national news last week.  But I'd like to point out that the result was a foregone conclusion.  Not only did a nonbiological father win in a previous case, which I wrote about here, but a nonbio mom partnered with the biological father was successful in December, which I wrote about here.  These results are possible because Colorado presumes parentage for a person who lives with a children and holds the child out as his own, and because Colorado applies its paternity principles to determinations of maternity.  Four other states have these provisions.  There is no way for a court to distinguish a family of two mothers from these cases.

I imagine that some of the media appeal of this case was the use of the term "paternity" to describe this mother's action. But Colorado law allows for "maternity" determinations and says to apply paternity principles to those, so really it only had to be a maternity action.

Finally, on the facts of this case specifically, a critical fact is that the couple could not both become adoptive parents in Colorado in 2006. But now Colorado has a statute that allows second parent adoption, so now any couple with a child adopted by one of them should go back and do a second parent adoption.  And don't forget that there is an adoption tax credit which will allow the couple to recoup virtually all of the costs of completing the second parent adoption.

European Court of Human Rights (ECHR) hears another second-parent adoption case

Last week the European Court of Human Rights (ECHR) heard the case of  X. & Others v. Austria, its second case on the availability of second-parent adoption.  A webcast of the oral argument in the case -- translated into English -- is available on the ECHR website here. I wrote about the hearing in Gas & Dubois v. France last April; that case has yet to be decided.  In Gas & Dubois, the child was conceived through donor insemination and France denied the mother's partner the ability to become a second parent through adoption.  In X. & Others, the child was born in the context of a prior heterosexual relationship.

According to Rob Wintemute, leading European expert on LGBT family law, unmarried different-sex couples may adopt each other's children in Austria. If the child's birth mother had been living with a new unmarried male partner, instead of a female partner, the new male partner could apply to adopt the child. The genetic father would have to consent, or the court would have to be persuaded to override his refusal to consent because the step-parent adoption would be in the best interests of the child.  Because a step-parent adoption or second parent adoption is legally impossible for a same-sex couple in Austria, the trial court did not reach the question of the genetic father's consent.

The lawyer arguing for Austria pointed out to the ECHR that most European countries do not allow a child to have two mothers or two fathers.  She argued that this is relevant to the leeway given to each country (called the "margin of appreciation") in implementing the European Convention on Human Rights provisions on respect for family life.

The petitioners are represented by Helmut Graupner, leading Austrian gay rights attorney.  He noted that the Youth Welfare Office found that it would be in the child's best interest for the mother's partner to have legal custody of the child but that this was not permitted under the law.  Graupner quoted to the court the opinions of numerous experts on the well-being of children raised by same-sex couples.

Although Europe was way ahead of the US in recognizing same-sex couple relationships, beginning with registered partnership in Denmark in 1989 and same-sex marriage in the Netherlands in 2001, European countries have actually lagged behind the US in recognition of parentage for same-sex couples.  It is a relatively recent development that some countries do allow second-parent adoption or parentage for the same-sex partner of a woman who bears a child through donor insemination.  Austria not allows same-sex couples to enter registered partnerships, but the law explicitly bans second-parent adoption for registered partners.

Evan Donaldson Adoption Institute report identifies best practices in adoption...but supports same-sex marriage for the wrong reason

The Evan B. Donaldson Adoption Institute issued a new report this week on Research-Based Best Practices in Adoption by Gays and Lesbians.  It includes the results of a survey of 158 adoptive parents.  What the researchers learned from those parents, combined with information from other sources about LGBT adoption, produced a series of recommendations.  These includes creating an atmosphere welcoming and respectful of LGBT prospective adoptive parents; promoting sensitivity and competence among agency staff; providing pre- and post-adoption support to LGBT families; providing pre-adoption support and education for birth families and older children; and supporting research on adoption and parenting.  After three previous reports on LGBT adoption: on the number of agencies working with LGBT clients; on the research finding no child-centered reason to oppose LGBT adoption; and on eliminating barriers to LGBT adoption of children from foster care; it's terrific to read a report focused not on whether LGBT individuals and couples should be able to adopt but on how to make those adoptions work better for everyone.

But I do have a quarrel with one recommendation: advocate for the passage of gay marriage laws.  If the researchers had stopped with saying that denial of access to marriage stigmatizes same-sex relationships and that's not good for the children they raise or for creating a climate in which more gay people want to adopt, well, I'd be fine with that.  But this is what they said:

Marriage promotes relationship stability for heterosexual adults compared to cohabitation, and consequently leads to healthier long-term psychological adjustment for children.

On this point, they should know better.  The causal link between marriage and better child outcomes is highly contested.  Those who make this claim generally oppose policies that respect and promote family diversity.  I think the reference to "relationship stability" refers to the length of time the relationship lasts.  Yet the one longitudinal study (peer-reviewed, published in the prestigious journal, Pediatrics) of children of lesbian couples that has studied the children when they were 17 years old found no difference in the well-being of those children whose mothers had split up and those who were still together.

But it get worse.  The next sentence reads:

If the well-being of children is to be paramount, then there is reason to expect that the marriage of their parents -- including when they are gay or lesbian -- will further the same objective.

Now this is the same organization that, along with every other highly regarded national child welfare organization, asserts that a substantial body of research demonstrates that children of LGBT parents suffer no psychological detriment when compared to children raised by heterosexuals.  And those were unmarried LGBT parents. In other words, children have done fine living with LGBT parents who could not marry each other, so what is this assertion that marriage of those parents will produce healthier children?

 I appreciate that the researchers support marriage equality.  But they should know better than to do so in the name of producing better-adjusted children.  It gives too much credit to arguments that are used inappropriately when discussing heterosexuals, and it disregards the well-being of the children LGBT parents have been raising for decades.

Supreme Court denies cert in Adar v. Smith, leaves child without accurate birth certificate

This morning the US Supreme Court declined to review Adar v. Smith, the ruling from the Fifth Circuit Court of Appeals (en banc) that Louisiana need not issue an amended birth certificate naming as the child's parents an unmarried couple who adopted the child in another state. A gay male couple had adopted the child in New York.

I have written about the case extensively here, including the massive effort by Lambda Legal to gain Supreme Court review.

A denial of certiorari is not a seal of approval for a lower court's ruling, so it does not make the law worse than it already is. (As opposed to a loss in the Supreme Court, which has nationwide ramifications). That said, the ruling that stands is very bad. It is the crack in the door that other states, and their courts, may walk through to deny recognition to same-sex couples raising children in a variety of contexts. Its differential treatment of children with married parents and those with unmarried parents is also deeply disturbing.

Tonight's episode of "The Closer" has faulty legal premise

If you DVR'ed The Closer tonight, this is a spoiler alert. You do not want to read this post until you've watched it.

I hate when tv shows depend upon an absolutely incorrect legal premise. That's what happened on tonight's Closer. The murderer is motivated to have the victim killed because the victim shows up and says she is the biological half-sister of the murderer who was adopted as an infant. The murderer has her killed so she cannot claim a share of her biological father's estate.

But the adoption severed her legal relationship with her birth parents, so she does not stand to inherit as a child. Now if the murderer thought this but the police managed to say among themselves that the murderer was mistaken and need not have killed the victim, that would be fine with me. The problem is that the police talk about the possible inheritance as though it was a real motive -- something that would cost the murderer millions of dollars.

It did used to be true that adoption did not change inheritance laws, and the adoptee could not inherit from adoptive parents and continued to be able to inherit through biological parents. It took decades for the law to treat adopted children as the full legal children of their adoptive parents.

But it's been settled for a long time now, and suggesting otherwise on a popular tv show spreads misinformation. All the folks in Hollywood needed to do was talk to a lawyer who deals with estates or families. It's too bad they didn't.

Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services

An Illinois state trial judge has thrown out the law suit filed by Catholic Charities of Illinois. The state of Illinois refused to renew the agency's contract to provide adoption and foster placement services because Catholic Charities said it would not place children with unmarried couples, including same-sex couples in civil unions. The agency sued.

Normally we think such lawsuits are about some religious freedom claim to discriminate. But in the first instance this suit was about whether Catholic Charities had a right to have its contract renewed. The agency claimed that because it had been renewed for 40 years, the state could not refuse to renew it this time without providing Due Process of law, which would include the right to present their point of view to a neutral decisionmaker.

The trial judge disagreed. He had previously granted an injunction against the contract termination in order to preserve the status quo. The injunction was granted on July 12. He heard argument on Wednesday and ruled yesterday. His short opinion concluded that "no citizen has a recognized legal right to a contract with the government."

Government attorneys argued on behalf of the state, but the ACLU of Illinois represented intervenors -- a lesbian couple wishing to become foster parents and a representative of all foster children in the state. The ACLU memoranda argued that since the state could not discriminate then a state contractor could not discriminate either.

The Thomas More Society, the "pro-life law center" representing Catholic Charities, has not decided what their next step will be.

Numerous organizations and scholars join Lambda Legal in asking the US Supreme Court to hear Adar v. Smith

Six friend of the court briefs were filed this week asking the US Supreme Court to hear Adar v. Smith, the case of the gay male couple denied an accurate revised birth certificate for the Louisiana-born child they adopted in New York. Lambda Legal represents the couple and filed a cert petition on their behalf last month.

Lambda's press release Thursday summarizes and links to the six briefs.

It is never an easy decision to ask the Supreme Court to hear a gay rights case. There is always the possibility of losing, thereby making bad law for the entire country. But the Fifth Circuit en banc ruling in Adar, which I wrote about here, has the potential to make mischief beyond the states that are bound by it (Texas, Louisiana, and Mississippi).

Lambda deserves huge credit for their representation of this couple and their coordination of the friend of the court briefs filed in support of the cert petition. I am one of the more than two dozen family law professors named as amici in one of the briefs, and I want to give a special shout out to Joan Hollinger at UC Berkeley and Courtney Joslin at UC Davis, as well as the National Center for Lesbian Rights, for their work on this brief. As I reviewed the list of fellow family law profs on this brief -- most heterosexual and without a primary focus in their work on LGBT families -- I am also grateful that so many highly respected scholars care enough about our families and the children we raise to lend their considerable prestige to this case.

We won't hear back from the Supreme Court until October.

Adoption news: federal anti-discrimination bill reintroduced; Catholic Charities threatens Illinois; Evangelicals cut ethical corners and worse

California Rep. Pete Stark this week reintroduced the Every Child Deserves a Family Act. The bill prohibits discrimination on the basis of sexual orientation, marital status, and gender identity by an entity that receives federal funding for adoption services or contracts with an entity that receives such federal funding. Meanwhile, with Illinois authorizing civil unions as of June 1, Catholic Charities there this week urged passage of legislation that would allow them to (continue to) discriminate against same-sex couples. Catholic Charities is sounding an alarm that it might have to stop providing adoption and foster care services in Illinois. Well, the Every Child Deserves a Family Act would override any such legislation (not that Illinois seems inclined to go in that direction). The federal statute would mean that no agency under contract to a state could discriminate on any of the named bases.

I'm proud of the state legislators (and those in my home town of the District of Columbia, which should be a state but isn't...that's another story) who stand up to Catholic Charities and let them know that others can provide the services they now provide if they wish to discriminate. Illinois Catholic Charities wants to get away with saying that they will refer same-sex couples to other agencies, as though that makes their own discrimination okay.

Meanwhile, thanks to Mombian blogger Dana Rudolph, who also writes for Keen News Service, for alerting me to an adoption story I missed last month. The Department of Health and Human Services (HHS) issued a memo urging child welfare agencies to better serve the needs of LGBTQ youth. As Rudolph describes in this story, HHS administrator Bryan Samuels also said that “LGBT parents should be considered among the available options for States and jurisdictions to provide timely and safe placement of children in need of foster or adoptive homes.”

Same-sex couples and LGBT individuals who want to become adoptive parents have fewer opportunities of adopting from overseas than were available previously. That's not about being gay; it's about the overall decrease in international adoptions. Last year international adoptions were down 50% from the all-time high in 2004. Last year's total was the lowest since 1994. (Read some of the statistics here.) As this post points out, fewer is better if the larger numbers resulted from corruption and baby stealing. In March, Ethiopia, which had had a rising number of overseas adoptions, announced a massive slow down in the processing of international adoptions because of the problems there.

Finally, if you were not aware of the Christian evangelical international adoption crusade -- folks who do far worse than just cut corners to "rescue" children for God --, you won't want to miss Kathryn Joyce's chilling piece in last week's Nation magazine. These people are pushing for increases in international adoption, including advocating legislation that would give financial incentives to developing countries that cooperate in sending their children for adoption to the United States. Because of the drastic decrease in international adoptions, there is a danger that secular agencies will join with these Christian evangelicals. Joyce reports that the Christian adoption crusade has friends on Capitol Hill poised to introduced legislation that might look benign but is actually designed to foster practices that are unethical -- except in the minds of those who proclaim, as Joyce reports, that they are following God's law, not man's laws.

A common anti-gay trope is that our desire for children is adult-centered, not child-centered, and that we want to recruit. I have never read anything about adopting children that was less child-centered and more about recruiting than this terrifying piece of investigative journalism.

Arizona couple and their twelve children get seven-page spread in Phoenix newspaper

This is a story that must be read, about Roger and Steven Ham, a gay male couple in Arizona (Roger changed his last name to Steven's in 2007, and all the children have the same last name), and their 12 adopted children. That's right, 12. First there was one child, who missed his four younger siblings. The five had been split into three foster homes when they were taken from their mother. Sibling groups are almost impossible to place in foster homes or with adoptive parents. Roger and Steven took all five. Then they took the children's 11 year old cousin. Then, as foster parents, they took any child the caseworker placed in their home (42 over 10 years -- some arriving with no notice), and eventually they adopted six more children, some with special needs. Roger is the youngest of 12 siblings; Steven the youngest of 14.

The Arizona Republic ran a seven-page spread about the family this past Sunday. I'm sure I have never read a more glowing review of foster/adoptive parents. Even Gov. Jan Brewer thought they were outstanding when she signed an award they received from the Arizona Association for Foster and Adoptive Parents in 2009. The award commended them for their secure and loving home, and for working so hard to keep siblings together.

But that didn't stop Brewer from signing into law last month a preference for placing children with married parents, a topic I posted about here.

The article points out that in Arizona only one of the men can be the children's legal parent. That's Steven. Two of the twelve were adopted from the Washington state foster care system, and both men are legal parents of those two. Roger is a school bus driver and the family's primary breadwinner. If he dies or becomes disabled while the children are minors, only the two who are legally his will get Social Security child benefits. Although the couple has signed all the legal documents they could, the lack of legal parentage leaves the children vulnerable in numerous situations. Nothing makes less sense.

I have to commend the Arizona Republic for running this story and giving it prominence. If it doesn't change some hearts and minds, I'd be surprised. I'll also be surprised if you can get through the whole article without tears in your eyes.

New Arizona adoption statute prefers married heterosexual parents

Leave it to the Arizona legislature to enact another bad piece of legislation that reflects extreme right wing views. On Monday, Gov. Jan Brewer signed SB 1188 which creates a preference that a child be adopted by "a married man and woman." The act applies to anyone licensed to place children for adoption.

A single individual can be an adoptive parent if one of the following conditions exists: a married couple is not available; the single person is the child's legal relative; the child would otherwise be in extended foster care; there is an established "meaningful and healthy relationship" between the child and the single person; the birth parent(s) places the child with the single person; or the child's best interests require adoption by the single person.

This is different from other adoption statutes. Most statutes are silent about marital status and base adoption on a child's best interests. The Arkansas statute struck down recently (see my post here), as well as the one in place in Utah, ban adoption by a single individual living with an unmarried partner. Arizona's new statute is less restrictive than that because it is not an outright ban on such an adoption. On the other hand, with a preference for a married couple in every case, there is no telling how that will impact a lesbian or gay man -- or a single heterosexual -- seeking to adopt a child. It does suggest that if an agency has a married couple approved to adopt -- or even in the pipeline -- they must choose such a placement over anyone else. It may mean that married heterosexuals get their choice of child while an unmarried person gets the children such couples reject.

The exceptions to the married couple preference show a somewhat sophisticated understanding of the common circumstances cited by opponents of adoption restrictions, such as a birth parent's choice or a person with an established relationship with the child. And since best interests itself can be the basis for an exception, there is enough flexibility to permit placements to continue. The statute requires the judge to make written best interests findings for every adoption. It remains to be seen whether judges will require some proof of the unavailability of a married couple unless one of the enumerated exceptions other than best interests applies.

One more thing: The consistent use of "single person" in contrast to a married couple makes clear that two unmarried persons cannot adopt together. So much for the best interests of children.

Tennessee adoption ruling bodes ill for same-sex couple second parent adoption

Court rulings that affect same-sex couples raising children often come in the context of heterosexual families. When you think about it, that's inevitable, since there are so many more heterosexuals and they, too, live in a variety of family forms. Well, a decision from the Tennessee Court of Appeals last month, In re Shleby L.B., falls into this category, and the news is not good. (For a Colorado ruling involving heterosexuals that bodes very well for same-sex couples there, read this post from last April).

A child, Shelby L.B., was born to a married heterosexual couple in 1999. When the couple divorced two years later, the child went with her mother and the father had no visitation rights but could petition for them in the future after completing alcohol and drug rehab. The mother later became friends with a 42-year-old man, J.E.N, who began acting as a father to the child when she was five years old. In 2008, the mother and J.E.N. filed a joint petition to terminate the parental rights of the father and allow J.E.N. to adopt the child. The petition alleged that the child called J.E.N., "Dad," and that he supported her financially and spent a substantial amount of time with her forming a parent-child bond. Shortly thereafter, the mother and J.E.N. filed an amended complaint including the fact that J.E.N. had exercised physical custody of the child for substantial times and that the child was presently living with him during the school week. There is no indication that the mother and J.E.N. ever lived together or that they had a romantic relationship.

The father hired a lawyer, opposed the petition, and asked for visitation with the child. Subsequently, he filed a motion to dismiss the petition, arguing that the parental rights of both parents must be terminated before anyone other than a stepparent can adopt a child. The trial court ruled in the father's favor, and the Court of Appeals affirmed.

Here are the Tennessee laws that doomed the petition filed in this case. A biological parent cannot file a petition to terminate the rights of another parent, so the mother could not file to terminate the father's rights. That left J.E.N. He could file an adoption petition, but according to the court's interpretation of the Tennessee statute, he could only do so if he were seeking to terminate the rights of the mother as well as the father. The only exception in the statute is for a stepparent adoption, and since the mother and J.E.N. were not married, he was not the child's stepparent.

This ruling likely dooms any second parent adoption. That's because, of course, the biological parent seeks to retain, not surrender, her parental rights when her partner adopts. The only remaining possibility might be a joint petition by a same-sex couple in which the bio mom gives up her rights as a bio parent but simultaneously gets them back as an adoptive parent. A single person may adopt in Tennessee, but it is not certain that the court would say this means two single persons may adopt together.

I wish we knew more about these people. I am curious about the relationship between the mother and J.E.N. There are plenty of examples of LGBT co-parenting arrangements between other than romantic partners. Since adoption requires individualized assessment of a child's best interests, I believe these arrangements should be able to be formalized through adoption. Plus I realize that I cannot even be certain the adults in this case are heterosexual. I know the mother was once married to a man, and I know there is nothing about her sexual orientation that is reported in the opinion, but it's not impossible that her friendship with J.E.N. is not sexual because one or both of them is gay. (It is also possible the two have a sexual relationship; all we know is that they are not married to each other and they appear not to live together). So I am curious, but in the end the issue should be whether the adoption is in the child's best interests, and that is what the court refuses to address because it says such an adoption is impossible.

This case is also a reminder that when we lose second-parent adoption it is not inherently an anti-gay ruling; it may simply be a narrow reading of an adoption statute. Since adoption customarily does terminate the rights of the existing parents, statutes were written in a way that produces that result automatically. When a court reads such a statute to prohibit a parent retaining rights while adding a second parent, that may simply be reluctance to construe a statute beyond its literal wording. Of course many state courts have read their adoption statutes broadly enough to encompass second parent adoption without terminating the first parent's rights. Thank goodness for that.

Illinois rejects adoption restrictions

It's become commonplace for religiously affiliated adoption agencies to object to same-sex marriage or civil union bills on the ground that they will be forced to place children in homes with same-sex couples. Of course, if you ask them whether they will support same-sex marriage or civil union if they receive an exemption for adoption placements, they will still say "no." So, really, it becomes a disingenuous way to fight recognition of same-sex couples.

With Illinois about to allow civil unions, such agencies attempted to obtain legislation permitting them to decline to place children with a person in a civil union. Earlier this week, the bill failed in committee by one vote. The Illinois ACLU took the lead in opposing the bill. Its position paper against the bill is very forceful. Read it here. It points out that there is no child welfare basis for such a law and that it amounts to unconstitutional discrimination. One of its other arguments, which I love, is that such a law would send a "cruel and harmful message to gay and lesbian foster children: When you grow up, the agency that provides your care, would never let you take care of other kids."

Almost 15 years ago I wrote an article about the benefit to gay and lesbian children in foster care of openly licensing gay and lesbian foster parents. I don't usually hear that argument made in the political context. Kudos to the Illinois ACLU for making it here.

Adar v. Smith continued...why two gay dads still have no birth certificate for their son

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarried biological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

Fifth Circuit en banc ruling in Adar v. Smith denies birth certificate to child adopted by two men

Late today, the Fifth Circuit Court of Appeals issued an en banc ruling in Adar v. Smith. As I noted in several earlier posts about this case, Oren Adar and Mickey Smith jointly adopted a child in New York. The child was born in Louisiana, and the couple sought an amended birth certificate listing both of them as parents. Louisiana refused to issue the birth certificate, citing its own law prohibiting an unmarried couple from jointly adopting a child. The couple is represented by Lambda Legal, whose senior staff attorney Ken Upton argued the case in January. The couple won in the trial court and in a Fifth Circuit panel opinion. This loss comes after rehearing by the entire Fifth Circuit.

Tomorrow I will write more about the court's ruling that the couple could not sue the state for violating the Full Faith and Credit Clause. Tonight I will just note that the court ruled against the argument that the state is denying the child equal protection of the law by refusing to issue a birth certificate based on the marital status of his parents.

Citing the despicable 11th Circuit Lofton ruling upholding Florida's ban on adoption by gay men and lesbians, the majority said that Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." It then cited one 2002 report for the principle that marriage is associated with better child outcomes than cohabitation because it is more likely to provide stability. Because this provides a rational basis for denying unmarried couples the opportunity to adopt, it therefore is sufficient support for denying a child adopted by an unmarried couple a birth certificate with two names. Both the logic and the sentiment here are appalling. This reasoning (or lack thereof) stands in sharp contrast to that of the Arkansas Supreme Court, which just last week ruled that the state's ban on adoption by anyone living with an unmarried partner was unconstitutional. The Adar v. Smith Fifth Circuit ruling also dismissed almost out of hand the argument that the state is violating the constitutional prohibition on discrimination against nonmarital children by denying a child with unmarried parents a birth certificate reflecting his legal parentage -- something granted routinely to children with married parents.

There's a strong dissent. And there is a contrary case from the 10th circuit five years ago, also argued by Lambda Legal. I hope Lambda asks for review by the US Supreme Court. The "circuit split" raises the odds that the Court would hear the case.

Arkansas Supreme Court strikes down adoption and foster parenting ban

As I predicted after watching the oral argument, the Arkansas Supreme Court today struck down Act 1, the initative banning anyone living with an unmarried partner from being a foster or adoptive parent. There was no dissent in the case, Arkansas Dept. of Human Services v. Cole. The court held that the ban violates the fundamental right of the plaintiffs to sexual intimacy in their home.

Because the ban burdens a fundamental right, it could survive only if the state could show a compelling interest and that the ban was the "least restrictive method" of achieving that state interest. Protecting the best interests of children is, of course, a compelling state interest. The court noted that Act 1 says that "the people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." But, the court noted, numerous employees of the state's child welfare agency, including the John Selig, director of the Department of Human Services, testified that the categorical ban was not in the best interests of children. Selig also testified that "it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home."

The ruling notes that all the arguments for a categorical ban based on generalizations about cohabiting couples could be addressed through the individual screening process to which all foster and adoptive parents are subject. "We have no doubt," the court stated, "that this individual assessment process is a thorough and effective means to screen out unsuitable applicants." You may recall from my earlier post that the lawyers for both the state and Family Council Action Committee argued that the categorical ban was necessary because the screening process makes mistakes. Really. Bet the state social workers loved that one...

The court's faith in the screening process allowed it to differentiate a 2005 custody case between two parents in which the court had stated that extramarital cohabitation is not condoned, does not promote stability for children, and can be a basis for changing custody. A nonmarital partner in a custody case, the court noted, is a "third party stranger" who has not gone through the rigorous screening applicable in the adoption or foster parent setting. Although I get the court's point, and it works to distinguish the prior case, custody cases are also handled individually by a trial judge determining a child's best interests. I'm disturbed that a parent's nonmarital sexual relationship could result in a change in custody. It's true this factor is not a categorical ban to post-divorce custody, but I would have been happier if the court had just said that custody cases are scrutinized individually and so adoption/foster parenting situations should be handled in the same way.

A few other thoughts. The court found a fundamental right to have a sexual relationship. I love that. It found that denying someone the opportunity to adopt or foster a child for that reason burdened the exercise of that fundamental right. I love that too. But because this triggered "strict scrutiny," the court did not have to decide if the ban would survive the rational basis test. The lower court essentially said the ban was rationally related to achieving the best interests of children but that the state could not meet the higher burden of showing that the ban was necessary. So although I love this articulation of a fundamental right, it should have been unnecessary. The ban should fail the rational basis test. Individual screening means a categorical ban does not serve the interests of children. Period.

Issues related to lesbians and gay men raising children, and unmarried heterosexual couples as well, are ill suited to the ballot box, or even the legislature. The political process allows gross misstatements to reverberate unchecked. It allows prejudice, stereotype, myth, and fear to substitute for reason. In spite of many notable defeats, lesbian and gay parents have fared better in court. Judges care about the well-being of the individual children in front of them. Courts must give real reasons for their rulings. True, state and federal courts upheld the Florida gay adoption ban for decades, and lesbian and gay parents have been denied custody of their children. But lesbian mothers also won custody in some courts 40 years ago, and second-parent adoptions began almost 30 years ago because judges wanted to do right by children. The Arkansas Supreme Court opinion is in that vein.

Arkansas court skeptical of reasons for banning unmarried couples from adopting or fostering children

It's always risky to predict the outcome of a case based on oral argument. Nonetheless, I'll predict that the Arkansas Supreme Court will affirm the decision of a trial judge in Cole v. Arkansas Dept. of Human Services that the state's ban on adoption and fostering by anyone living with a nonmarital partner violates the state's constitution. The ban was enacted by voters in 2008. You can watch the argument on the court's website here. Although a lawyer for the state did argue briefly, the lawyer who primarily argued for upholding the ban represented the intervenors, the Family Council Action Committee, the Arkansas group behind placing the matter on the ballot in 2008. The plaintiffs are represented by the ACLU, which has once again done a top notch job.

Before the US Supreme Court's decision in Lawrence v. Texas, the Arkansas Supreme Court ruled that its criminal prohibition on private consensual sex in the home violated the state's constitution. The importance of that case, Jegley v. Picado, played a large role in today's hearing. The trial court found the ban a violation of the plaintiffs' constitutional rights as articulated in Jegley. The appellants disagree, arguing that the ban is nothing like the intrusion of criminalizing behavior in the home. The justices did not appear to buy it. They repeatedly returned to the fundamental right articulated in Jegley and expressed skepticism that the ban was anything but a direct and substantial burden on the exercise of that right.

If the ban violates the fundamental right of the plaintiffs then it cannot stand unless it is narrowly tailored to achieve a compelling state interest. But if there is no fundamental right at stake, then the ban survives as long as it has a "rational basis." The intervenors and the state argued that the rational basis test allows the generalization that, as a group, the homes of "cohabiting" couples are less stable and more volatile than other homes, and that therefore an individual review of each applicant in such a situation is not required, even though some of those homes would be suitable.

When one of the justices asked the lawyer for the intervenors if he conceded he would lose if the court applied "heightened scrutiny," he said no. He said the "life" of the child was at stake (that's how he characterized the state's interest on several occasions) and that the state couldn't be required to place children in the "riskiest" and "poorest performing" home environments.

In what was perhaps the most astonishing part of the argument by the appellants, both lawyers asserted that the state's screening process is not good enough to weed out unsuitable applicants. They called the process "imperfect" and "not foolproof" and said that mistakes are made. When one of the justices responded that the lawyer for the agency was acknowledging his system to be a failure, the lawyer said the Department of Human Services was doing the best it could but that people lie and "slip through" their process. He later backpedaled and said he had misspoken, but in the process he asserted the problem was everywhere and that caseworkers are overworked and the agency does not have sufficient funding.

So this is what it's come to. There is no response to the assertion of the plaintiffs, echoed by judges on the court, that no one is allowed to foster or adopt a child without first going through an agency or judicial approval process. So apparently to justify excluding an entire category of applicants from the opportunity to show that a placement in their home is in the best interest of a child, the government lawyer must argue that his agency is not capable of doing its job properly. I find it impossible to imagine that the Arkansas Supreme Court will base its decision on such reasoning.

The lawyer for the plaintiffs reiterated the individual process each applicant goes through. He said that any studies about groups of children are irrelevant because of that, but he did further argue that whatever correlation there may be between "cohabitation" and child outcome does not demonstrate that the cohabitation causes the problems. He also told that court that it could not rule against the gay and lesbian plaintiffs without overruling the court's decision in Howard. In that case a unanimous court struck down an administrative regulation preventing a gay person or anyone living with a gay person from being licensed as a foster parent. The authors of both the majority and concurring opinions in Howard remain on the bench.

One of the court's newest justices, Courtney Hudson Henry, asked the lawyer for the intervenors the last question of the argument. She noted that a gay person living alone with multiple sexual partners is eligible to adopt, as long as that person doesn't live with a partner. (I wish she has left the qualifier "gay" off her statement, as it is true for a heterosexual with multiple partners as well). The response she received was that the ban is concerned with the dynamics and volatility of cohabiting relationships and break ups and there are a variety of reasons an individual might be denied the ability to adopt or be a foster parent.

And so it has come to this. The same state that cannot be trusted be weed out cohabiting couples whose homes are not good for children can be trusted to weed out single applicants whose homes are allegedly bad for children because they sleep around (without having police go snooping in their homes, which everyone agrees Jegley does not allow). Of course, that's not the point. In fact, the point of the ban has nothing to do with children and everything to do with stigmatizing both same-sex and unmarried different-sex relationships. I don't think the Arkansas Supreme Court is buying it.

Arkansas adoption ban oral argument tomorrow morning -- watch it live

The Arkansas Supreme Court hears oral argument tomorrow at 8:58 am CDT in Arkansas Dept of Human Services v. Cole, the ACLU's challenge to the constitutionality of the initiative enacted by voters in 2008 prohibiting adoption by anyone living with a nonmarital partner. It will stream here. For background on the case, check out the ACLU website. For one analysis of what went wrong in the election campaign, read this.

I'll post about it later in the day tomorrow.