Many same-gender couples will spend their first Thanksgiving as married couples after the U.S. Supreme Court made marriage equality the law of the land. Yet Obergefell v. Hodges has not made LGBT families secure throughout the nation because of a myriad of roadblocks in many states.
An early obstruction came in Rowan County (KY) last summer when the county clerk, Kim Davis, refused to issue marriage licenses to same-gender couples. After her contempt of court kept her in jail for a few days, she said that the county deputy clerks could issue the licenses but only after she changed the wording of the license forms and removed her name and that of Rowan County. She also ordered her deputies to sign the forms as “notary publics” instead of deputy county clerks.
Although Gov. Steven L. Beshear declared last month that the marriage licenses were valid, he has now submitted a brief with the U.S. District Court that states his office does not have the authority to determine whether these licenses are valid. Couples have filed a brief in U.S. District Court supporting their prior assertion that the Rowan County clerk’s office failed to comply with orders directing deputy clerks to issue marriage licenses without interference by Clerk Kim Davis.
Supreme Court Justice Antonin Scalia angrily spoke about losing Obergefell during a speech to first-year law students at Georgetown last week. Scalia said that determining which minorities deserve protection should be made through the democratic process rather than a court decision. According to Scalia, only political and religious minorities are protected by the constitution.
Last summer’s decision in Obergefell v. Hodges may have changed the perception of due process. According to Kenji Yoshino, the case may displace five decades of the high court’s substantive due process decisions. For a half century, the Court used tradition, specific definition rather than general abstraction, and the willingness to protect negative “freedom from” rights rather than positive “freedom to” rights to determine due process. Almost two decades ago, the Supreme Court ruled in Washington v. Glucksberg that due process did not cover the right to assistance in committing suicide. In Obergefell’s dissent, Chief Justice John Roberts, who declared that the majority “effectively overrule[d] Glucksberg, the leading modern case setting the bounds of substantive due process.”
The marriage equality ruling has replaced a rigid ruling on due process, according to Yoshino, with the common-law approach voiced in Justice John Harlan’s dissent for Poe v. Ullman (1961). He supported a balance of individual liberties against government interests without being “shackled to the past.” Tradition, to Harlan, was a “living thing,” a concept that Scalia despises. Instead of opposing marriage equality because of the long historical tradition against same-gender marriage, the Court majority considered the “right to marry.” The question for the future is whether Obergefell will be used to make future decisions about due process or whether the Court will revert to the past as it has many times since Roberts became chief justice.
For now, some courts and legislatures are giving same-gender couples a “partial equalty”—really an inequality—that will require the Supreme Court to take up more litigation. Custody, adoptions, fostering children, and couples’ rights after separation are most likely the next fights for same-gender couples.
In Utah, Judge Scott N. Johansen ordered a nine-months-old child removed from a lesbian couple because it was “not in the best interest of children to be raised by same-sex couples.” Public outcry led to his rescinding the order, but the judge left open the possibility of removal at a December 4 hearing. Fortunately for the child, the judge has now recused himself “and refers all pending matters to be assigned by the presiding judge.”
Utah began placing children with same-gender couples after the Supreme Court decision last summer, and an infant girl was placed with married couple Rebecca A. Peirce, 34, and April M. Hoagland (above left), 38, and their two biological children in August. On November 10, 2015, the two women attended what they thought was a regular hearing, but Johansen ordered that the baby be removed within a week and given to a heterosexual couple. The Division of Child and Family Services said that it was “in the child’s best interest” to stay with the two women. Even the GOP governor joined in the protest for the judge’s decision. Gary R. Herbert said, “He may not like the law, but he should follow the law.”
As in Kentucky, the current obstacle is not necessarily the law but the attitude of government employees who discriminate against LGBT people. In the hearing, the judge said “that research has shown that children are more emotionally and mentally stable when raised by a mother and father in the same home,” but he refused to cite any sources. At this time, research is on the side of the same-gender couple with no current credible study supporting the judge’s bias.
Justice Anthony Kennedy clearly listed adoption among the rights associated with marriage, but he didn’t mention foster parenting. Until recently, most states prevented child placement with same-gender couples who were not married, and the law prevented many of these couples from being married. Several states permit private placement agencies to discriminate against same-gender couples, but Mississippi is the only state that flagrantly enforces a state law banning adoptions by same-gender couples.
Four couples are challenging the Mississippi ban on adoptions by same-gender couples, including Janet Smith and her wife, Donna Phillips (right). The state is blocking Smith’s adoption of Donna’s eight-year-old daughter, Hannah Marie. The two married women are raising Hannah together, but Smith has no legal status in regards to their daughter. Phillips, a captain in the Mississippi Air National Guard, is “concerned about legal aspects for Jan” if she is called or activated. This lack of legal recognition puts children at risk of losing both their parents and ending up in foster care if something happens to their birth parent and their other parent is not legally recognized.
Last year, 29 percent of Mississippi’s same-gender couples were raising children younger than 18, the highest percentage of any state. A year ago, U.S. District Court Judge Carlton W. Reeves found the adoption ban to be unconstitutional, but the decision was stayed pending action by the Fifth Circuit and then the Supreme Court. Ronnie Musgrove, the governor who signed the ban into law 15 years ago, has written that he regrets his action. “As I have gotten older, I came to understand that a person’s sexual orientation has absolutely nothing to do with their ability to be a good parent.”
Another Mississippi couple, Kathryn Garner and Susan Hrostowski, has waited 15 years for a second-parent adoption of the child they raised together since he was born just six weeks before the ban went into effect. Two other couples, also plaintiffs in the case, want to adopt children from foster care. Kari Lunsford and Tinora Sweeten-Lunsford wanted to take a child with special needs who could not be matched with other foster parents. They were told that they would have to live apart for at least six months during a home study, and only one of them could adopt the child.
The U.S. Supreme Court has been asked to review an Alabama case in which judges refuse to recognize an adoption granted in another state. A lesbian known in court filings by her initials V.L. helped raise the children, now ages 10 to 12, but has no visitation rights since the couple separated. During their 16-year relationship, the two women had three children from sperm donors, and a Georgia court approved V.L.’s adoption of the children in 2007. In September 2015, the Alabama Supreme Court struck down the woman’s visitation rights and ruled the adoption invalid, saying the Georgia court was wrong under that state’s adoption laws to grant it. Earlier this year, the same court directed probate judges to refuse marriage licenses to same-gender couples even after a federal judge ruled the state’s ban on gay marriage was unconstitutional.
The case involves a constitutional provision requiring one state to respect court orders of other states: Article IV’s Full Faith and Credit Clause. Lawyers for V.L. wrote that the decision “would create a massive loophole in the Full Faith and Credit Clause.” They added, “There is no legal or practical basis for singling out adoptions as uniquely unworthy of full faith and credit.” If states don’t recognize adoptions from other states, LGBT parents can lose their parental rights when they travel, for example the inability to make medical decisions for their children if they are in an accident. V.L.’s attorneys have also applied to the Supreme Court for a stay of the Alabama’s ruling so that she can visit the children during the appeal. Justice Clarence Thomas, the justice with jurisdiction in Alabama for emergency actions, has called for E. L., the biological mother, to respond to the stay applications by November 30.
Despite last summer’s ruling that same-gender couples can marry, 61 percent of the LGBT population “will continue to live in states with medium or low legal protections—or that have outright hostile laws,” according to the report Mapping LGBT Equality in America, released earlier this year. Since this map was released in early October, all of Houston (TX) LGBT people lost their rights in the November election.