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Mississippi Supreme Court, Rejecting Parental Status for an Anonymous Sperm Donor, Says Birth Mother Can’t Challenge Same-Sex Partner’s Parentage

Posted on: April 12th, 2018 by Art Leonard No Comments

Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.

Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse.  The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.

The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.

The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship.  After several years together, they decided to adopt a child.  The adoption of E.J. was finalized in 2007.  Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J..  In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name.  The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.

In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T.  They obtained anonymously donated sperm from a Maryland sperm bank.  Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity.  In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork.  Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.

According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.”  She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate.  But for medical reasons that did not occur.  Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital.  Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.

Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents.  Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time.  Christina testified that both children call her “mom.”  The women separated in January 2013.  Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.

Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.

This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court.  Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly.  She also sought to be named as Z.S.’s legal parent.  The two cases were consolidated in the Rankin County court.  On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.

This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child.  They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.

Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage.  But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents.  The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.”  However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.

Christina appealed three days later.  At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.

The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent.  Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law.  “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.  As such, this is an issue of first impression.”

That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject.  But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother.  That’s it.  However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”

“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity?  These two policies cannot co-exist.”

Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.”  Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.

When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information.  In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.

On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent.  First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.”  Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.”  As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.

Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.”  Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant.  Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.

Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests.  For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S.  Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.

Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.

Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child.  I conclude that they are and that the decision of the chancellor should be reversed and remanded.”  After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”

Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor.  He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.”  His opinion was joined “in part” by Justices Randolph and Maxwell.

Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.”  His opinion was joined “in part” by Justices Randolph and Coleman.

Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal.  Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor.  He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court.  He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.

This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.)  But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation.  One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.

Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.

Divided Mississippi Supreme Court Refuses to Relieve Closeted Gay Doctor from One-Side Divorce Settlement Agreement

Posted on: February 3rd, 2018 by Art Leonard No Comments

Voting 7-2, the Mississippi Supreme Court refused to relieve a closeted gay doctor, who is also HIV-positive, from the terms of a very one-sided divorce settlement agreement which he had signed with his ex-wife more than two years prior to filing an actionto set the agreement aside or modify it as unconscionable and formed under duress. Under the agreement, which was approved by the Hinds County Chancery Court, all but $5,000 a month of his income goes towards support of their one child and alimony for his wife, and obligates him to assume all the expenses of raising the child through college and potential marriage, among other things.  Smith v. Doe, 2018 Miss. LEXIS 39, 2018 WL 549404 (Jan. 25, 2018).  For confidentiality purposes, the court used pseudonyms to refer to the parties, using the names Carl Smith and Lisa Doe.  Both of them are doctors.  Justice James D. Maxwell, II, wrote for the court.  Justices Leslie D. King and James W. Kitchens each wrote dissenting opinions, and Justice Kitchens also joined Justice King’s opinion.

The divorce occurred because Lisa found out that Carl had been engaging in extramarital affairs with known and anonymous same-sex partners. He had lied to her about how he contracted HIV, and about allegations concerning his alleged pedophilic activities (trading nude pictures of underage boys on-line).  Lisa, represented by two lawyers, proposed an extremely one-sided settlement agreement, which included a provision in which Carl, who was not represented by counsel at Lisa’s insistence, acknowledged that the agreement was one that a court would not normally impose in a contested case.  The provision stated: “Nevertheless, Husband is both willing to limit and restrict his rights and expand his obligations regarding child support, alimony, and division of marital property and debt as contained in this agreement.  These limitations and restrictions of rights and expansion of obligations are based, in part, by both Husband and Wife’s mutual understanding of the unique difficulties in which Husband’s behavior has placed the family unit.”  The agreement obligated Carl to pay over about 75% of his income to Lisa on a monthly basis, and although it stated that Carl had been encouraged and free to seek legal advice concerning the agreement, he testified that in fact Lisa threatened to go public with all the detrimental information he uncovered if he hired a lawyer.  Carl testified that he had not seen the agreement until it was presented to him for signature, with no opportunity to review it or seek advice about it.

Carl made all payments for more than two and a half years, but then filed a complaint to set aside, or alternatively to modify, the agreement. He argued coercion, duress, and unconscionability.  Wrote Justice Maxwell, “He suggested his wife had strong-armed him, threatening to disclose his affairs, disease, and alleged malfeasance if he did not sign the agreement.  And he signed the agreement under duress, facing ‘financial ruin, humiliation, loss of his medical license, criminal prosecution, and loss of contact’ with his daughter.  Carl also claims Lisa would not permit him to have an attorney review the agreement’s terms.”

Lisa, while “admitting that she was angry and behaved harshly toward Carl after she had unearthed much of his hidden second life and illicit activities,” argued that “his coercion and duress allegations are not only false but are undermined by his express acknowledgements in the property-settlement agreement.”

The chancellor granted Carl a hearing, but concluded after five days of testimony that a statutory limitation period for contesting a divorce settlement agreement approved by the chancellor barred Carl’s complaint. Rule 60(b)(1) of the state’s Rules of Civil Procedure requires an action to set aside an agreement on grounds of the other party’s misconduct be filed within six months, but he waited more than two years.  Although there are equitable grounds to grant relief from that time limit, the chancellor found that they do not apply in this case, and the Supreme Court backed up the chancellor in the finding that there was “no evidence of good cause in Carl’s delay” and that granting relief “at this late date would cause actual prejudice to Lisa.”  The chancellor had also, alternatively, rejected Carl’s contention that the agreement was unconscionable, noting that both of the parties are educated, licensed professionals and that “Carl was not overly browbeaten or otherwise coerced into signing a procedurally or substantively unconscionable agreement.”  Carl’s complaint that after meeting all monthly financial requirements under the agreement he was left to live on only $5,000.00 a month, was not calculated to carry much weight in Mississippi.  (An on-line check shows that based on 2016 data, an annual income of $60,000 both exceeds the national median family income and far, far, far exceeds the annual  median family income in Mississippi, which is one of the poorest states with one of the lowest costs of living.  No crocodile tears from the majority of the court for the philandering Carl on this account.

Wrote Justice Maxwell, “The chancellor essentially found Carl knew exactly what he was doing and exactly what he was obligating himself to do when he signed the settlement agreement. Indeed, according to the agreement, Carl accepted its strict terms based on ‘the unique difficulties in which his behavior has placed the family unit.’  The chancellor recognized this and noted that ‘Carl was in a place of self-loathing and felt extreme guilt for his choices that had caused the destruction of his marriage and family.’  That his extramarital activities and devious behavior gave Lisa the upper hand in negotiating a favorable settlement did not negate that Carl ‘freely and willingly’ agreed to the settlement’s terms.  Nor did Carl’s ‘self-imposed guilt’ and Lisa’s ‘obvious hostility,’ in the chancellor’s view, amount to an unconscionable disparity of bargaining power.  Based on his advanced education, Carl was certainly aware of the finality of signed legal contracts and judgments.  And the chancellor’s finding and the agreements express acknowledgements undermine Carl’s newly minted procedural unconscionability claim.”

As to the claim of substantive unconscionability, the court noted, as mentioned above, that Carl testified that he is “very stable” financially and can afford to make the payments. The chancellor did not find that any changed circumstances of the parties would themselves justify modifying the terms.  “Here,” wrote Maxwell, “the chancellor ‘expressly determined that no fraud or overreaching existed in this matter.’  Thus, he deemed ‘all provisions of the agreements regarding fixed alimony or a division of property’ unmodifiable.  We there find,” continued Maxwell, “even if Carl’s motion was not snagged on the chancellor’s Rule 60(b)(1) and Rule 60(b)(6) timeliness findings, the chancellor did not abuse his discretion in alternatively rejecting the merits of the unconscionability claims.”

Concluding, Maxwell noted that in light of the evidence presented, “this Court has significant public health and safety concerns. We therefore remand the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012), and determine whether the court file should remain under seal.”  In Estate of Cole, the count observed that confidentiality of settlement agreements by consent of the parties should generally be respected as it effectuates settlement of disputes, but that if there is an overriding public interest, a court can unseal previously sealed court records.

Justice King’s dissent is long, detailed, and vociferous, criticizing the majority opinion on just about every point, and sets out in detail the terms of the agreement and the enormous financial obligations it imposes on Carl, some of which are indeterminate and likely to expand substantially in the future. For example, Carl agrees that when the child is old enough to drive, he will buy her a car with no cap on the price or input on his part to its selection.  He is also obligated for all of the child’s college expenses, including any post-graduate or professional degrees, “to be selected by Carl, Lisa, and the child, by majority rule.”  He was required to make monthly deposits into a designated college fund for the child, provide all insurance and cover all deductibles, maintain a life insurance policy on the child with Lisa as trustee until the child completes her education, making Lisa the primary beneficiary of all his pension plans and retirement savings with the child as secondary beneficiary, bear full liability for all his own debts and for all Lisa’s medical school debts. . .  It goes on and on, including that, contrary to usual custom, his alimony obligation would continue even if Lisa remarried and would be an asset of her estate if she died before he did.  She got the marital house and almost everything in it, and sole custody of the child; if Lisa died before the child’s majority, custody would go to Lisa’s parents.  “The contract provisions wholly deprive Carl of seeing his daughter but require him to almost completely financially support his daughter,” wrote King.  In other words, Lisa really took Carl to the cleaners, getting him to agree to things that went far beyond what a court was likely to order in a litigated divorce case.

Justice King commented, “The circumstances of this case by definition are extraordinary and compelling. Carl clearly has demonstrated good cause for not filing his motion sooner.  At the time of his divorce, Carl had HIV, was homosexual without the knowledge of his family, had not disclosed his HIV-positive status to the state [medical] licensing board, had engaged in homosexual extramarital affairs, and was in a precarious situation of possibly losing his means to support himself and also losing complete contact with his child.  Given the totality of the circumstances in this case, Carl’s hesitation to contest the property-settlement agreement was reasonable and was for good cause.  Thus, I cannot agree with the majority’s conclusion that the chancellor had not erred in finding that Carl’s filing was untimely.  I also cannot agree that Carl’s motion lacked merit.”

Justice King noted facts conveniently left out of Justice Maxwell’s opinion for the court, bearing on the unconscionability issue beyond just the content of the agreement. “Even though Carl admitted feeling guilty for his actions,” wrote King, “I cannot find that mere guilt coerced Carl into signing an agreement that gave complete custody and decision-making authority over Carl’s minor child to Lisa, along with extraordinary and oppressive financial obligations.  Lisa had access to Carl’s email accounts and forwarded Carl emails that were private as well as potentially detrimental to his future medical career.  Carl alleged that Lisa had threatened to reveal his homosexuality and had threatened not only criminal prosecution, but medical licensure revocation or suspension, disclosure of his HIV diagnosis, embarrassment, and humiliation.  Carl testified that Lisa had threatened exposure if he hired an attorney to represent him in the divorce or told any family members or friends about what was occurring.  Yet Lisa had two attorneys and drafted the agreement to provide Carl only with the minimal amount he would need to live on per month.  He had not been able to see or read the contract until minutes immediately before he signed it.  In addition, Carl stated that Lisa had threatened exposure if he rented an apartment or hotel room before the divorce was finalized.  Consequently, Carl had lived in his car for several months.  Carl had no bargaining power, had a lack of opportunity to study the contract, and had no input in drafting the agreement.  Accordingly, I would find that the contract, too, was procedurally unconscionable.”

Chiding his colleagues in the majority, King wrote: “The majority makes much of the clearness of the agreement’s terms. With respect, I believe that the majority downplays the totality of Carl’s position.  Lisa did not have the upper hand; she had the only hand.”  He also objected to the court’s decision to remand to the chancellor on the issue of sealing the record.  “If this Court has public health and safety concerns,” he wrote, “I believe the appropriate method to allay those concerns would be to report to the relevant governmental authority.  Those relevant authorities must pursue the matter as they see fit.  The trial court in this case agreed with the parties that the record should be sealed.  Because unsealing the record would do little to remedy any public health and safety concerns, I fail to see the public benefit gained by unsealing the record.”

In a separate brief dissent, Justice Kitchens quotes from some of the incriminating emails, and implies that the majority is biased against Carl because he is gay. Or at least, that seems to be the import of his closing remarks: “Carl’s position is further supported by the majority’s use of the word ‘salacious’ to describe his extramarital affairs. The word salacious connotes indecency, obscenity, or lewdness.  I dare say that the majority would not have chosen that particular term had Carl chosen to engage in heterosexual affairs.  A search of the term ‘salacious’ in opinions reveals the term’s use in criminal cases involving pedophilia,” citing Shaffer v. State, 72 So. 3d 1090, 1098 (Miss. Ct. App. 2010); Wade v. State, 583 So. 2d 965, 968 (Miss. 1991).  Notably, there are no allegations that Carl actually engaged in sexual conduct with minors, just that some of the emails he exchanged with other men referred to the subject

“Carl” is represented on appeal by William Abram Orlansky and Susan Latham Steffey.

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.