Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

A news article has been circulating the past couple days with the title, "In Florida, Gay Adoption May No Longer Be Forbidden."

But the headline is misleading--gay adoption in Florida is no more legal than it's been since it was banned in 1977. All that's happened is three state courts granting an adoption to gay couples.

In the latest case,  Martin Gill and his partner say that the Florida ban is unconstitutional. The U.S. Court of Appeals will soon release a decision on the case, which will almost certainly be appealed again.

Until that whole appeal process is over, Florida gay adoption will still be "forbidden."

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A lot of times people assume that all conservatives are against gay rights and all liberals are for them.

A federal gay marriage case is risky, they say, because the Supreme Court has a conservative majority. Or, as they said before, Maine voters will uphold gay marriage because it's such a liberal state. Turned out that wasn't the case.

Political ideologies don't necessarily predict support for gay rights, as last week's Adar v. Smith  decision shows. The Fifth Circuit Court of Appeals, arguably the most conservative circuit after the Fourth, said that Louisiana must recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Conservatives tend to put precedent over public policy, and that's what the court did here. While Louisiana might have its own public policy reasons for not allowing gay adoptions, the court said that the full faith and credit clause requires the state to recognize out-of-state ones.

That's why gay rights cases relying on more conservatives arguments are more promising than ones that rely on public policy reasons. Take, for example, Gill v. OPM, the Massachusetts case asserting that marriage rights should be left up to the states, a typical conservative argument.

Especially if the Supreme Court keeps its historically conservative bent, arguments like these may have the most success in recognizing more rights for same sex couples.

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Here's a guide to gay adoption states, showing where and to what degree gay adoption is legal. Check other posts for information on second parent adoption or gay adoption laws generally.

What Is It?

Two men or women adopting, as a couple, another child.

States Where It's Always Legal

• California
• Connecticut
• Illinois
• Indiana
• Maine
• Massachusetts
• New Jersey
• New York
• Oregon
• Vermont

States Where It's Legal in Some Counties

• Nevada
• New Hampshire

Keep in mind that a judge often grant a joint gay adoption in other states, but there's no law in those states saying whether it's allowed or disallowed.

States Where It's Never Legal

• Utah
• Florida
• Mississippi
• Michigan
• Arkansas

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Here's a guide to gay adoption laws. Keep in mind that gay adoption rights are set out by state law, so the following is just a general overview. I'll update this post with more information occasionally.

For more coverage, check out two previous posts on second parent adoption and gay adoption state laws.

General Issues:

• Usually you file the adoption in the county that you and the child live. It gets more complicated if the child lives in another state, but it's doable.
• Any child can be adopted, but adoption agencies will usually allow only what's in the "best interest" of the child. They might not allow the adoption if you have a different religion or race, but this is becoming more rare.
• Every state lets you change the child's last name at the time of the adoption.
• Almost all states will seal the adoption records.
• Almost all states will grants a new birth certificate showing the child's new last name.
• Every state will require a social worker investigation and a court hearing. 

For gay adoption state laws.

Some Advice

• Get a lawyer. You don't need one, but when it comes to securing your relationship with your child, you want to make sure all your ducks are in a row.
• Want to adopt through a private agency? Be prepared to wait. You'll have to find someone that's willing to let their child be raised in a same-sex household, and not everyone wants that.
• Fastest way to adopt? Being flexible in the child you adopt. You'll find it easier if you're willing to adopt a child who's a different race, older, or disabled.

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The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn't get an updated birth certificate from Louisiana. Back then, Louisiana said it didn't have to recognize adoptions from other states that it wouldn't perform itself.

The Court today said otherwise. Here's a PDF of the unanimous opinion in favor of the gay couple.

Why is This Case Important?

Because it's about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don't allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith--that they shouldn't have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here's why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

• First, it recognized that the Supreme Court has said that there are no "public policy exceptions" to the clause.
• Second, it disagreed with Louisiana's argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana's policy with New York's.
• Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.

So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn't face is DOMA, a federal allow that says specifically that states don't have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won't get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

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Gay adoption has been illegal in Florida since 1977, but another judge has nevertheless allowed it. This makes three approved gay adoptions within the last year.

What's going on?

Circuit-judges hearing adoption cases have said that the gay adoption ban is unconstitutional, and therefore grant the adoptions despite the law against them. You might remember from discussion around the Proposition 8 trial about what makes a law unconstitutional. It's not whether it's discriminatory, but rather, whether the state has a good enough reason for discriminating.

That's why the judge said in her ruling that the law is unconstitutional because the state government's reason for it--that gay adoption is bad for children and society--isn't good enough:

There is no rational connection between sexual orientation and what is or is not in the best interest of a child. The child is happy and thriving with [his lesbian mother]. The only way to give this child permanency . . . is to allow him to be adopted.

Meanwhile, the Court of Appeals for the Third District in Florida will soon rule on the Gill adoption case, the first of three times when a judge in Florida granted a gay adoption.

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The Fifth Circuit of the U.S. Court of Appeals this week heard arguments in a case about out of state recognition of gay adoptions.

The federal district court ruled in favor of the gay couple [PDF] late last year.

Two men jointly adopted in New York a baby born in Louisiana. But when they tried to get a new birth certificate in Louisiana, the state refused. Instead, the state said that it doesn't have to recognize adoptions from other states that it wouldn't allow itself. Because Louisiana doesn't allow joint gay adoptions, the state said the two men were out of luck.

In the meantime, some Louisiana lawmakers are trying to preempt a ruling that would make the state recognize gay adoptions from other states. Rep. Jonathan Perry introduced a bill that would make couples who adopt a Louisiana born child follow Louisiana law when it comes to birth certificates. The law hasn't yet passed.

Even if it does, it may not matter. Ken Upton of Lambda Legal, who is representing the two men, argued before the court that Louisiana must recognize the New York adoption because the full faith and credit clause of the U.S. Constitution should make the state respect judicial adoption decree from other states, including New York.

If the appeals court rules in favor of the two men based on this argument, then it won't matter if a Louisiana state law says otherwise. The federal law will trump.

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The Montana Supreme Court on Tuesday upheld the parental rights [PDF] of the non-biological parent of a separated lesbian couple.

What Happened

The couple had raised their child together for three years. Yet because Montana, like many states, doesn't let same sex couples adopt a child together, only one of two women legally adopted the child. After the couple separated, the woman who legally adopted the child said that letting her ex-partner have parental rights would interfere with her own constitutional right to parent her legal child.

The Court disagreed. Instead, the Court said that parental rights should be based on the existence of a parent-child relationship, which both women had.

Why It Matters

Because many states allow single, but not joint, gay adoption, the Montana decision could eventually impact the parental rights of non-legal parents in these other states. While none of these states has to follow what Montana does, their high courts may still be influenced by what the Montana Court said. However, the particular laws of each state will more affect those courts than decisions from other states.

Further, while in this case the child was adopted, the decision could also affect the rights of a non-biological parent in a same sex relationship with a biological one.

Even in Montana, however, the decision does not give the non-legal parent in a same sex relationship the same parental rights as the legal parent.

Instead of equal rights, the Montana decision said that the non-legal parent has only a "parental interest." Julie Shapiro, a professor at Seattle University Law School, points out that a "parental interest" is vague:

I’m not sure what that is or what it means. Is [the non-legal parent now] a legal parent? She has an equal voice in decision making, which suggests some equality with [the legal parent]. But it simply isn’t clear to me.

I expect further litigation in Montana or elsewhere about the limits of "parental interests" of non-legal parents.

Finally, be careful what you read. Some political blogs have mischaracterized the decision as treating non-legal parents equal to legal parents. Look at Queerty's post, for example, titled, "Montana Supreme Court's Amazing Adoption Decision: Gays Are Equal Under the Law." It's important not to treat every pro-gay decision as a proclamation of equality or as an advancement of gay rights, because the effects of these decisions are often much more limited.

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Because gay couples can't naturally have children, lots of them want to adopt. When they do, they'll be just as good parents as straight couples.

Patricia Reaney reported in Reuters this past Friday what researches said of multi-state study on gay adoption:

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement. "We did find, however, that age and pre-adoptive sexual abuse were," she added.

Despite the study's results, not everyone thinks gay couples should adopt. Jon Dougherty says in the World Net Daily that same sex adoption is bad for kids: "[R]aising kids in anything other than traditional mom-dad households is what has led to so many of today's mounting teen problems."

Ultimately I expect that studies with competing claims to come out in the future. Special interest groups in favor or against gay adoption will fund research that publishes a favorable result.

In the meantime, the research will be used by parties in litigation challenges gay adoption laws. In the Florida adoption case, for example, both sides cited research that gay couples are either as good or not as good parents as straight couples.

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