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Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

Posted on: April 12th, 2017 by Art Leonard No Comments

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.

The Bitter-Enders in the World of Marriage Equality

Posted on: November 10th, 2015 by Art Leonard No Comments

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

Nebraska Court Holds Anti-Gay Adoption/Foster Licensing Policy Violates 14th Amendment

Posted on: August 14th, 2015 by Art Leonard No Comments

Lancaster County, Nebraska, District Judge John A. Colborn ruled on August 5, 2015, that the state’s policy for approving adoptions of state wards and foster care licenses for same-sex couples violated the rights of gay people and same-sex couples under the 14th Amendment of the U.S. Constitution.  Ruling in Stewart v. Heineman, the court invoked the U.S. Supreme Court’s decision in Obergefell v. Hodges in support of its ruling, but without explicitly stating why Obergefell compels this result.

 

The lawsuit was initiated in 2013 by three same-sex couples who were told during the period 2010-2012 that they could not be certified to be foster parents because of a policy adopted by the state’s Department of Health and Human Services.  In January 1995, DHHS issued Administrative Memorandum #1-95, which directs that foster home licenses may not be issued to “persons who identify themselves as homosexuals” or “unrelated, unmarried adults residing together.”  DHHS indicated at the same time that the new policy would not affect existing foster placements or placements with a child’s relative, and apparently the intent was to institute a “don’t ask, don’t tell” policy under which staff would not ask about sexual orientation or marital status apart from inquiries already included in the licensing application and home study forms. 

 

In the summer of 2012, the former Director of the Division of Children and Family Services (CFS), Thomas Pristow, told Service Area Administrators and the Deputy Director of the agency that they should no longer follow Memo #1-95, and that DHHS could place children with gay singles or same-sex couples, provided that he personally approve any such placement.  This was after the three plaintiff couples in this case had been turned down under the policy expressed in Memo #1-95.  The memo was subsequently removed from the agency’s website in February 2015 (after a federal district court had ruled that the state’s same-sex marriage ban was unconstitutional) but the policy was  never formally rescinded in writing, Memo #1-95 does not appear on the DHHS website’s page for rescinded or replaced memos, and it has not been replaced with a new written policy statement.  Indeed, the current website makes no reference to a DHHS policy on gay individuals or unrelated, unmarried couples.  According to evidence introduced by the plaintiffs, some consisting of statements by agency officials at operational levels, it appears that there is considerable confusion within the agency and among agency contractors about the status of this policy, and that gay couples continue to be routinely denied certification as foster parents.

 

Judge Colborn rejected the agency’s contention that removal of the policy from the website and the agency’s verbal assurance to the judge that the policy was no longer in place was sufficient to make this case go away.  Indeed, Judge Colborn found as a matter of fact that regardless of the memo’s absence or presence on the website, there is evidence that the agency, despite its disavowals, imposes a higher level of scrutiny on gay and same-sex couple applicants than on other applicants.  Indeed, a non-gay individual or traditionally-married applicant goes through two low levels of scrutiny before final approval, while gay or same-sex couple applicants go through five tiers of scrutiny culminating in personal review by the head of the agency.  Clearly there is an unequal process.

 

First the court addressed the odd posture of agency policy concerning Memo #1-95.  “The current stated policy of DHHS is wholly inconsistent with Memo #1-95,” wrote the judge.  “Memo #1-95 has not been rescinded or replaced with the current policy.  A governmental agency cannot adopt a new policy, and not rescind or replace an Administration Memorandum that is wholly inconsistent with the current policy.  It is the determination of the court that Memo #1-95 should be rescinded, and ordered stricken or replaced with the current policy, for the reason that it is not consistent with the current policy of DHHS.  Additionally, pursuant to the holding of the United States Supreme Court in Obergefell v. Hodges, the court must hold that Memo #1-95 should be stricken as it violates the Equal Protection and Due Process Clauses.”

 

Turning to the challenge to the current unwritten policy described in agency testimony, the court found further constitutional flaws.  “Defendants have not argued, nor have they identified, any legitimate governmental interest to justify treating gay and lesbian individuals and gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process,” wrote Judge Colborn.  In fact, he noted, the agency claimed it wasn’t treating them differently, but the testimony belied that assertion. 

 

The agency made the laughable argument that the extra level of scrutiny on approving gay applicants was intended to “prevent bias against those persons.”  What makes this laughable was that only those applications approved at lower levels are subjected to review at higher levels within the agency.  “It is not logical that a procedure could prevent bias when it does not deal with placements that were rejected, or not recommended, during one of the previous four stages of review,” wrote the judge.  “If the Defendants wanted to prevent bias against gay and lesbian couples, as well as unmarried adults residing together, Defendants would review denials of placements rather than approvals of placements.” 

 

On its face, the extra tiers of review process appears designed to screen out gay applicants, not to prevent bias against them.  The court found that the agency had acknowledged that there was “no child welfare interest advanced by treating gay and lesbian persons differently from heterosexual persons in decisions regarding licensing or placement in foster or adoption homes.”  That being the case, once again the court deemed the policy inconsistent with the requirements of Obergefell v. Hodges.

 

The court ruled that the agency must treat gay and non-gay applicants the same, and same-sex and different-sex couples the same.  Of course, in the post-Obergefell world, the state and its agencies must treat married same-sex couples the same as married different-sex couples as a matter of constitutional law. 

 

The court ordered the agency to formally rescind Memo #1-95, and to replace it with a memo stating the constitutionally appropriate version of the current policy. The absence of a written policy clearly creates confusion within the agency and may provide too much unguided discretion to lower level agency functionaries to discriminate against gay applicants. The court enjoined the agency from “applying a categorical bar to gay and lesbian individuals, gay and lesbian couples, and unrelated, unmarried adults residing together seeking to be licensed as foster care parents or to adopt a state ward.”  The court ordered that the same review processes be used for all applicants, and provided that “costs of this action are taxed to Defendants.” 

 

Given the state’s reluctant acquiescence to Obergefell and the stated opposition by Governor David Heineman to gay rights in general and gay parenting in particular, it seemed likely that the state would pursue an appeal of Judge Colborn’s decision. 

 

Idaho Supreme Court Says Co-Parent Can Adopt Partner’s Children

Posted on: February 11th, 2014 by Art Leonard No Comments

The five-member Idaho Supreme Court ruled unanimously on February 10 that the state’s adoption law would allow second-parent adoptions, reversing a decision by Ada County Magistrate Judge Cathleen MacGregor-Irby, who had dismissed an adoption petition on the ground that the petitioner’s California marriage to the children’s legal mother was not recognized in Idaho. The opinion for the court in “In re Doe,” 2014 Ida. LEXIS 34, by Justice Jim Jones gave a literal interpretation of the statute’s provision stating that “any adult” who is at least fifteen years older than the person being adopted can petition to adopt somebody. Surprisingly, the court did not address a problem highlighted by Justice Joel D. Horton’s concurring opinion: that the statute gives the court discretion to terminate the parental rights of the parent who is consenting to the adoption of their child by somebody to whom they are not married.

Although the court assigned pseudonyms to all the parties in this case, the parents evidently decided to go public, because a news report about the decision published by the Idaho Statesman identifies Darcy Drake Simpson and Rene Simpson as the couple in question. Rene gave birth to their first son in 1998, and adopted a second boy as an infant in 2001. The women had a non-legal commitment ceremony in Boise in 1997, formed a Vermont Civil Union in 2002, and married in California last year. However, Idaho does not recognize any legal status for them as a couple, and has a state constitutional amendment banning marriages or civil unions for same-sex couples.

After the women’s marriage, Darcy filed a petition to adopt the two boys, for which Rene provided written consent. They submitted a Pre-Placement Home Study performed by a certified professional. The Home Study reported that Darcy has been the boys’ primary caregiver, while Rene’s work has provided the main financial support for the family. The children told the professional that they regarded Darcy as their mother, and the Study support the adoption petition. However, Judge MacGregor-Irby dismissed the petition without even holding a hearing, stating that “the petitioner must be in a lawfully recognized union, i.e. married to the prospective adoptee’s parent, to have legal standing to file a petition to adopt that person’s biological or adopted child.” The judge rejected a motion to amend or reconsider her decision. The motion argued that the decision should not have been made without a hearing, and that the adoption statute of Idaho does not require the petitioner to be married to the children’s legal parent.

The Supreme Court first ruled that Judge MacGregor-Irby violated Darcy’s right to due process of law by dismissing her petition without holding a hearing to consider the jurisdictional question. “Jane Doe was given no opportunity to be heard,” wrote Justice Jones. “Furthermore, she had no notice that her petition could potentially be dismissed because there was no opposition to it. Rather, the magistrate court acted unilaterally in dismissing it.” The court concluded that this action “deprived Jane Doe of due process because she was not given notice and the opportunity to be heard in a meaningful manner.” Even more to the point, the court found that the adoption statute itself provides that an adoption petitioner is entitled to a hearing.

More importantly, the court found that MacGregor-Irby had misconstrued the adoption statute. The court agreed with Darcy’s argument that the statute does not require her to be married to Rene in order to adopt the children. MacGregor-Irby had written that there was not any provision in the statute that allows for such adoptions, and concluded that allowing such adoptions would not be consistent with “legislative intent.” But courts generally do not try to discern legislative intent if a statute is “unambiguous” and can be interpreted by resort to the “plain meaning” of the words used by the legislature. In this case, the court criticized MacGregor-Irby for failing to determine whether the statute was unambiguous in its description of who could petition to adopt a child.

The relevant provision states that “any minor child may be adopted by any adult person residing in and having residence in Idaho, in the cases and subject to the rules prescribed in this chapter.” As far as the court was concerned, “‘any adult person’ is susceptible to only one interpretation — a human being over the age of 18,” and thus is “unambiguous.” Furthermore, the court found that the “cases” and “rules” referred to in that provision had nothing to do with the marital relation, if any, between the petitioner and the children’s legal parent. Although the statute mentions “spouse” and “married” several times, those terms are never used in a way suggesting that the adoption petitioner must be married to the legal parent.

Justice Jones insisted that “this is not a case dealing with same-sex marriage. Rather, it is strictly a case dealing with Idaho’s adoption laws. Those laws, including the issue of who may adopt, are set by the Idaho Legislature. The Legislature has imposed no restrictions that would disqualify Jane Doe from seeking to adopt Jane Doe I’s children, and the Court will not imply any such restrictions based upon Idaho’s marital statutes. We emphasize that Jane Doe’s sexual orientation was wholly irrelevant to our analysis. Likewise, it is immaterial in determining whether Jane Doe satisfies the statutory requirements for adoption.” The court sent the case back to Judge MacGregory-Ibry for a determination whether approving the adoption would be in the best interest of the children.

Justice Horton’s concurring opinion sounded a cautionary note. The statute says that the legal parent or parents of a child must give consent for the child to be adopted, unless their parental rights have previously been terminated, and that parents consenting to an adoption must simultaneously consent to the termination of their parental rights. Upon granting of the adoption, those rights are terminated “unless the decree of adoption provides otherwise.” “Thus,” wrote Justice Horton, “the judge hearing the adoption petition may, but is not required to, terminate the parental rights of the parent or parents consenting to the adoption. The Legislature has not identified the standards, if any, by which judges are to exercise their discretion in determining whether to terminate the parental rights of natural parents when proceeding with adoptions.”

“The takeaway is simply this,” wrote Horton: “Parents wishing for a new spouse or domestic partner to adopt must offer to consent to the termination of their parental rights and hope that the judge doesn’t accept the offer.” Of course, for the judge to accept the offer would be absurd, since the adoption petition would specify that the petitioner does not seek to terminate the parental rights of his or her partner, especially where, as in this case, the couple are actually married — even though an Idaho court is required, as of now, to treat their marriage as invisible and unrecognized.

There is a lawsuit pending in federal court challenging Idaho’s ban on same-sex marriages. Since Idaho is in the 9th federal appellate Circuit, which recently held that sexual orientation discrimination claims are subject to “heightened scrutiny,” chances are good that the federal court will rule in favor of the plaintiffs in that case. But, in the meantime, this ruling by the Idaho Supreme Court suggests that Idaho couples have a mechanism to solidify the legal status of their family through second-parent adoptions even though the marriage ban is still in effect.

The attorneys for the Simpsons include the Boise law firm of Mauk & Burgoyne, Nate Peterson Law PLLC, and Lisa Shultz.