Adoptive gay parents win another Supreme Court victory (mostly)

On March 7th, the Alabama Supreme Court was dealt yet another blow in its crusade to strip gays and lesbians of their relationship and familial rights. This time, the U.S. Supreme Court upheld the legal status of a nonbiological mother, known in court documents as V.L., who was embroiled in a heated custody battle with her child’s biological mother, E.L.

The Alabama Supreme Court had stripped V.L. of her parental rights over the three children she had raised with E.L. since birth. The couple had, together, moved to Georgia in 2006 for a short time to secure a second-parent adoption from a Georgia court, which granted V.L. legal parental rights over the children that E.L. had conceived without requiring E.L to relinquish her own parental status. The Alabama Supreme Court, however, overturned the second-parent adoption and effectively rendered V.L. a legal stranger to her own children. Had it been upheld, it also would have made countless adoption decrees – not just in Alabama, but in all states, and not just for gay couples but all couples – similarly vulnerable to judicial review from any court, anywhere.

So when the Supreme Court summarily dismissed the case- no briefs, no arguments, just a unanimous opinion – V.L and lesbian and gay parents everywhere hailed it as a victory for same-sex couples. And they certainly have cause to celebrate.

The Supreme Court’s swift and decisive dismissal of Alabama’s ruling not only solidifies V.L.’s parental status (and lets her children have two parents) but it also prevents any future state court from supplanting another state’s adoption rulings with their own. In this way, the Court’s decision is significant.

However, we ought also remember what the Court’s decision does not attempt to accomplish. Court decisions rarely summarily resolve an issue, and this is especially true in the case of same-sex parenting laws. Despite the Court’s decision in Obergefell v. Hodges – which legalized marriage equality across the country – states are still trying to figure out whether and how their parenting laws will be affected by same-sex marital rights. In this regard, the Court’s decision does little to solve this problem (nor, to be fair, was the Court asked to resolve it).

For one, this decision is not an adoption case per se. Although the substantive focus of the Court’s inquiry concerned the parental status of an adoptive parent, the case really involves one fairly cut-and-dried legal question: did the Alabama Supreme Court have the right to intervene into a judgment issued by another state court? This question centers not on the adoption rights of gay and lesbian parents but rather on the constitutional obligation of a state court to uphold a decree issued by another state court.

Under Article IV of the U.S. Constitution, every state is required to give “full faith and credit … to the public acts, records, and judicial proceedings of every other state.” When the Alabama Supreme Court rejected Georgia’s second-parent adoption decree, the Supreme Court had to determine whether Alabama had violated “full, faith and credit.” Alabama argued that the Georgia court lacked jurisdiction to make the second-parent adoption ruling – which, according to the Alabama Court – gave Alabama license to strip V.L. of her legal status. The Supreme Court saw it differently. “Whatever the merits of that judgment,” argued the Court, “it was within [the Georgia court’s] statutory grant of jurisdiction” to issue the second-parent adoption to V.L.

In other words, no matter whether Alabama (or the Supreme Court) disagreed with or disapproved of the substance of the ruling, the question came down to whether or not Georgia had the authority to issue it – and according to the Supreme Court, Georgia had it in spades.

Second, while the Court obstructed the Alabama Court’s decision – hopefully putting an end to their continued recalcitrance towards same-sex couples – there are still significant, widespread and ongoing debates as to the co-parental rights of lesbian and gay parents. Although we may hope that the nation is awash in post-Obergefell marital bliss, the fact is that many lesbian and gay parents are facing significant challenges to their legal status, even in states where support for marriage equality is high.

Some states are now requiring that a non-biological lesbian or gay parent prove their marital status to the biological parent at the time of their child’s birth. Courts in New York and Maryland have stripped lesbian non-biological parents of their parenting rights because – although they each had eventually married their children’s biological mother – they were not legally married when their children were born.

Oregon courts have developed a similar philosophy. According to Oregon law, an unmarried same-sex couple must be treated the same as a married opposite-sex couple in custody cases if the same-sex couple conceived a child through artificial reproductive technologies (with each partner’s consent) and would have married if they had been able to do so. In a 2015 case, an estranged lesbian couple tested the limits of that doctrine.

The couple (Karah and Lorrena Madrone) had an avowed disapproval of marriage as an institution, but in every other way functioned as a married co-parenting couple. They had a commitment ceremony well before their child was born, picked out sperm donors together (even using Karah’s brother as one of their two donors), changed their last names to Madrone and gave that name to their child and eventually filed for a domestic partnership in 2008 within two months after the child was born (and shortly after the state’s domestic partnerships went into effect). The Oregon court, however, disregarded this evidence and instead focused on the gestational mother’s decision not to include her partner’s name on the birth certificate – a decision she made while the couple’s relationship was deteriorating but before they filed for a domestic partnership. In all, the court gave inordinate weight to the gestational mother’s purported intentions and largely undercut any evidence that attested to the couple’s co-parenting and relationship status.

In each of these cases – the battles between married mothers in New York and Maryland, the domestic partners in Oregon and likely many others – there would have been little legal controversy over the non-biological parent’s legal standing for custody had the couples acquired a second-parent adoption. Instead custody decisions would have been evaluated just as they are for opposite-sex parenting couples, based on the “best interests of the child.” For lesbian and gay couples intending to co-parent, then, second-parent adoptions hold significant weight. Regardless of a parent’s belief in marriage, or the couple’s relationship status at the time of their child’s birth, a second parent adoption removes any doubt about a parent’s legal relationship to their child.

But here’s the rub: Second parent adoptions are expensive – ranging upwards of $5000 – and they are only available in approximately 30 states (and are sometimes contingent on specific counties or judges).

So, while the Supreme Court’s ruling provides a welcome smack down on Alabama’s continued assault on same-sex couples by supporting existing second-parent adoptions, it does not appreciably change the landscape of options for lesbian and gay parents (especially those living in states without second-parent adoption). For lesbian and gay non-biological parents, in the absence of formal legal standing, their relationships with their children (no matter how lengthy or substantial) continue to be subject to the whims of geography, relationship status, and judicial discretion.

Alison Gash

Alison Gash is the author of Below the Radar: How Silence Can Save Civil Rights (Oxford University Press, 2015). Her work on LGBTQ rights has also appeared in Politico, Newsweek, Slate, Huffington Post and The Conversation. She is an Associate Professor of Political Science at University of Oregon. Views expressed are solely her own and are not meant to represent those of the University of Oregon.