The 10th U.S. Circuit Court of Appeals has struck down an Oklahoma law described as being so extreme it had the potential to make children adopted by same-sex couples in other states legal orphans when these families are in Oklahoma.
Think about that: If a same-sex couple from New York were changing planes at the airport in Oklahoma City and their child took ill and had to be rushed to the hospital, the state of Oklahoma would not recognize their parental rights and might, instead, appoint a state agency to make critical medical decisions. So much for family values, and individual liberty against intrusive government, in the OK state.
But all is not rosy. The Court of Appeals for the 11th Circuit upheld Florida's ban on adoptions by same-sex couples in that state, so it looks like this is an issue headed for the U.S. Supreme Court. If so, Justice Kennedy-author of the Lawrence decision striking down anti-gay "sodomy" laws (and, by extension, calling into question laws that deny to gays the same rights enjoyed by heterosexuals if that denial is based on anti-gay animus and prejudice)-could again play a pivotal rule.
One thing you can bet on: The arguments that will be put forward in defense of statewide adoption bans, "for the sake of the children," will get ugly.
6 Comments for “The Looming Adoption Battle”
posted by grendel on
I’m not so sure this is heading anywhere. Wasn’t the Florida case about simple equal protection? The Oklahoma case didn’t even touch the issue — full faith and credit was the issue. And, as other commentators have noted, the decision came down squarely on the side of well-established precedent. I don’t see how the Eighth Circuit Court of Appeals could have decided the case any other way. And since the cases turn on totally different issues, there is no conflict between the two of them. It is entirely consistent (legally) to say that a state may pass a law outlawing gay adoptions, but may not refuse to give full faith and credit to adoptions validly obtained in other states.
posted by Carl on
This issue has been around for a while. Don’t you remember back in 2005 and 2006 when the far right tried pushing these bans in various states? They fizzled out, although they are obviously far from dead.
If we’re worried about this, then we should try to help the gay organizations and civil liberties organizations in Arkansas. They are likely going to have a ban on the ballot next year that will ban gay adoption and foster care.
posted by Craig2 on
Please keep the rest of the world informed about these developments. Incidentally, if you want to spy on the other side’s arguments, try this book:
Bill Maier and Glen Stanton:
Marriage on Trial: The Case Against Same-Sex Marriage and Parenting (InterVarsity Press,
2005).
Craig2,
Wellington, NZ
posted by Jordan on
Info about the ban that they tried put in Arkansas last year can be found here:
http://www.no959.com
I don’t know much of anything about the upcoming ballot initiative, though.
posted by Randy on
they only way this can be an actual issue before the courts is if you actually have a controversy. In other words, the OK law would have to be implemented so that you can have a plaintif that challeneges the law.
In order fot that to happen, you would have to have a gay couple legally adopt a child in another state. Said family travels to OK. Something happens to invoke the law — perhaps a trip to the hospital because the kid got injured, or something else. The law is invoked and the adoption is declared null and void.
What happens to the child? He no longer has gay parents. The natural parents have no rights, since they would have had to sign away all rights at the time of the adoption. So the child would then be declared parentless and henceforth a ward of the state.
THEN, the gay parents could sue to retain custody of their child, and would have a case in federal court.
The odds of this ever happening are slim. On the other hand, stranger things have happened. But the state would likely lose, as the state has no legitimate interest in removing a child from the only home it has known just to become a foster child.
posted by grendel on
Randy,
I’m not sure I get your point … The discussion here is about an actual case, and an actual decision from the Eighth Circuit Court of Appeals. The law was implemented, and three sets of plaintiffs (I think) came forward claiming harm. I read the decision quickly. There is a long section discussing whether or not any of them had standing, i.e. whether any of them suffered harm. The Appeals court found at least one set of them did and allowed the appeal. It then struck down the statute on full faith and credit grounds. It never reached the equal protection issue.