The Fundamental Right to Same-Sex Parenting Is Coming to a State Near You…And, soon, by Jordan Walsh

The Supreme Court granted a stay in Alabama this week that should have what is left of the anti-LGBT-rights movement shaking in their boots.[1] The right of married gay Americans to parent, and thus to adopt as married couples, is the next civil rights issue on the proverbial docket, whether the Court grants certiorari in this case or not. Admittedly, the Full Faith and Credit Clause issue presented to the Supreme Court in the petition for certiorari may not seem directly relevant to the due process and equal protection rights that underpin the holdings in Lawrence, Windsor and Obergefell, but the facts of the case are extremely relevant, as is the location and posture.

The case involves the voiding of a near decade-old Georgia adoption of three children, after the separation of the birth mother from her former life-partner, the adoptive mother, by the Alabama Supreme Court. The adoption in question had been granted pursuant to Georgia law precisely because the women knew Alabama would not allow an adoption by one gay parent of the children born by the other gay parent. Georgia did issue such an adoption decree, and both women have been the children’s legal parents since 2007. After their separation, however, the adoptive mother sued to have the decree enforced because she felt her ex was illegally denying her parental visitation rights. While the trial court and appellate court both sided with the adoptive mother and agreed to enforce the adoption decree, the Alabama Supreme Court reversed, and declared the entire adoption void. Holding that the adoption should never have been granted in Georgia under Georgia law, despite no Georgia court ever finding so, the Alabama Supreme Court found this fact deprived the original Georgia court of jurisdiction to grant the adoption in the first place, and thus the Alabama Supreme Court had no duty to respect their judgment under the Full Faith and Credit Clause of the Constitution.

The Full Faith and Credit Clause of the Constitution covers the duties of each state to respect and honor the “public acts, records, and judicial proceedings of every other state.” Current doctrine holds that the court judgments of other states are to be given even more deference and respect than the public laws. Because various state laws, as well as federal law, on a precise issue can vary within our federalist system, courts can often make what is known as a “choice of laws” decision about what statute to apply when there is more than one rational and legitimate option available from which to choose. This is not so with court judgments. The ability of parties to rely on the finality and enforceability of such a judgement is critical, particularly in an adoption context, and they are thus generally respected and enforced across state lines under our Constitution.

Also worth noting, courts in each respective state are considered to be the courts most competent to interpret the laws of that given state, with the state Supreme Court serving as the arbiter of that state’s constitutional law, just as SCOTUS sits federally. For an Alabama court, even the State Supreme Court, to articulate an interpretation of Georgia law that is in opposition to a Georgia court’s interpretation of its own state law, and void a decree based on Georgia law without consulting any Georgia court, is near unique in modern jurisprudence.

All of this might seem rather dry and technical were it not for the underlying facts of the case involving the legal validity of a gay adoption in Alabama, in the wake of the Supreme Court’s 2015 holding in Obergefell v. Hodges. In holding that marriage between two consenting adults cannot be restricted on the basis of gender or sexual orientation, the Supreme Court grounded the national fundamental right to marriage in equal protection and due process, thus mooting any possible state-level Full Faith and Credit issue in Obergefell. However, a narrower ruling for the plaintiff in Obergefell could have held that states without legalized gay marriage would have been obligated to recognize those same-sex marriages solemnized in other states under the Full Faith and Credit Clause.

It was also argued by many scholars that Section 2 of D.O.M.A., the erstwhile and inaptly named “Defense of Marriage Act,” was an unconstitutional violation of the Full Faith and Credit clause because it stipulated that certain marriages granted in certain states did not have to be recognized by other states—a departure from general principles of family law as well. In Windsor, D.O.M.A. was held unconstitutional on the rationale that Section 3 violated the Constitution as a deprivation of fundamental liberty in defining, for federal purposes, marriage as between one man and one woman, because such a definition singled out some state-sanctioned marriages for less than equal treatment with other state sanctioned marriages. Although the broad rulings in both Windsor and Obergefell mooted any major discussion of the Full Faith and Credit clause issue, it is not new to the Constitutional debate about the role (if any) federalism has to play in LGBT marriage and parenting rights in the United States.

More, many constitutional scholars believe the language of the majority opinion in Obergefell supports not only the fundamental nature of the right of two same-sex consenting adults to marry, but that it likely supports the fundamental nature of the right of gay citizens to parent, and specifically to adopt children. Marci A. Hamilton is one such scholar, offering her thoughts here, although she is not alone. As Justice Kennedy made clear in Obergefell, problems of “uncertainty” arise for children in a state that “permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either [parent], the other would have no legal rights over the children she had not been permitted to adopt.” Further, the majority in Obergefell reasons that without “recognition, stability, and predictability…children suffer the stigma of knowing their families are somehow lesser.” Even if it is dicta, it is strong dicta supporting the right of married gay couples to parent, and thus, yes to, adopt.

If Obergefell does support this, and there is ample evidence that it would, the right of gay married citizens to parent or adopt, and their children to be parented, is fundamental, and must be given the full support of the Full Faith and Credit Clause in order to avoid administrative pandemonium. We cannot have adoptions being voided and children’s lives being upended simply because families must move across state lines. If Obergefell does, as many scholars think, support the constitutional right to parent within marriage, it is buffered by the right of a child to have a loving caring stable home with two parents wherever possible—and these rights would certainly be disturbed by any refusal to recognize gay parent adoptions across state lines; it would render such children with at least one less parent, if not none. Which is, of course, what the Supreme Court of Alabama just de facto did to three actual children via use of a questionable jurisdictional procedural hook. This instability and uncertainty can hardly be claimed to be in a child’s best interest—the primary objective of family court judgments.

Alabama as the seat of the Court whose ruling was stayed is also telling, due to the antics of State Supreme Court Justice Roy Moore. Since Obergefell came down in June, Justice Moore has vociferously and repeatedly refused to enforce it, and more, erroneously claimed that he has actual constitutional grounds upon which to ignore the rulings of the highest court in our nation. SCOTUS doesn’t take well to challenges to its authority as to judicial review and defining the scope of constitutional rights, thus it is not a stretch to think that the staying of such a ruling by the very court where Judge Moore sits is no mere coincidence.

Once the Supreme Court grants a stay, odds are far more likely that it will accept the petition for certiorari, and hear the appeal, because in order for the stay to even be granted four criteria must be met:

  1. A “reasonable probability” that four Justices will grant certiorari;
  2. That there is a “fair prospect” that a majority of the Court will conclude upon review that the decision below was erroneous;
  3. That irreparable harm will result from the denial of the stay;
  4. If necessary, a balancing of the equities, by exploring the relative harms and the interests of the public at large.

Once a stay is granted, as mentioned above, it takes only four Justices to grant certiorari. To say that given the opportunity, Justices Ginsburg, Kagan, Sotomayor, and Breyer would not find a fundamental due process and equal protection right for married gay parents to adopt would be ridiculous; they would. Thus, once again, such a case—whether it is this case or not–would likely come down to a potential fifth vote by Justice Kennedy, and of course he penned the very words in Obergefell that give rise to the question regarding the fundamental right to parent. If SCOTUS chooses to take this case, it could simply find the Alabama Court in error as to the Full Faith and Credit issue, and go no farther than the issue presented, leaving an official ruling on gay adoption rights to another, more directly on-point case. Still, such a ruling for the plaintiff here would still serve as precedent to support the required recognition of adoption by gay parents across state lines, which for the same reasons that D.O.M.A. had to be struck down in its entirety, would effectively legalize gay adoption nationwide, in 2016. And we could have Alabama to thank for it.

[1] I say anti-LGBT rights movement because not all Christians are in opposition to equality for gay citizens, nor are all official Christian denominations. Several Christian denominations actively perform same-sex marriages and allow for gay priests to serve. Thus, to call the movement against equality for LGBT inherently Christian in nature would be incorrect, factually and doctrinally, as any such a position relies merely on one fundamentalist interpretation of the Bible of, as opposed to a sole interpretation (which does not exist), but that is another blog post entirely.