The Same-Sex Adoption Cases Playing Out In Utah While Marriage Is On Hold

CREDIT: AP Photo/Rick Bowmer

ACLU plaintiffs Matthew Barraza, Tony Milner, and their son, Jesse

In December, when a federal judge ruled that Utah’s ban on same-sex marriage was unconstitutional, over 1,300 same-sex couples married before the decision was stayed by the U.S. Supreme Court. Though marriage itself was put on hold by the stay, the fate of those 1,300+ marriages was left unclear, and a fight over their legality has continued to play out since. In particular, several of those couples have been fighting for the right to legally adopt their own children, but a Utah Supreme Court ruling last week delayed the outcome of that struggle as well.

After the stay was granted in January, Utah Gov. Gary Herbert (R) declared that it would not recognize any of the marriages that took place during the two and a half weeks it was legal to marry, though the federal government and many other states said that they would. The ACLU responded by filing suit on behalf of the couples, demanding that their marriages be recognized in the state where they were actually performed.

In addition, many couples have separately filed their own complaints seeking specifically to adopt the children they are already raising together. Utah law prohibits joint adoption of a child by two people unless they are married. Because these couples did marry, they are arguing that their adoptions should be processed as well. Aside from those families who have gone public, it’s unclear how many adoption cases have been filed because such proceedings are kept private by the courts.

Among the plaintiffs in the ACLU case are Matthew Barraza and Tony Milner, who have been raising a 4-year-old named Jesse since he was born. Only Barraza is listed as a legal guardian for Jesse, so if something happened to him, Milner would have no right to continue caring for their son. Barraza and Milner not only married during the window when it was legal to do so, but also requested that a court recognize Milner as Jesse’s second parent. Unfortunately, the hearing on their adoption was postponed after Herbert’s announcement that their marriage would not be recognized by the state. In fact, the state specifically instructed to judges to suspend all same-sex adoption petitions pending the appeal of the original marriage equality decision.

Another couple not affiliated with the ACLU suit, Kimberly and Amber Leary, actually had their adoption request approved by a judge, but the state intervened before they could obtain a new birth certificate for their daughter that included both of their names. Last week, they filed a new complaint against Utah Attorney General Sean Reyes (R), W. David Patton, Executive Director of the Utah Department of Health, and Janice Houston, Registrar of the Office of Vital Records, demanding that the officials be held in contempt of court for refusing to issue the birth certificate. Judge Andrew Stone seemed to agree, ordering the officials to appear before the court next month to “show cause why they should not be held in contempt for their willful disregard and refusal to obey the Decree of Step-Parent Adoption.”

The Attorney General’s office responded by sending a second emergency request to the Utah Supreme Court requesting a halt to all same-sex adoption orders. After being silent on both the marriage recognition and adoption issues, the Court responded on Friday by granting the Attorney General’s request for a stay. Reyes’ office concluded that the stay also applies to the Learys’ case, and that the officials will no longer have to justify refusing a birth certificate for their family. They argue that they are not trying to delay or deny adoptions, but that they are seeking consistency and clarity for the law.

The Utah Supreme Court placed the adoption case on an expedited calendar, but it’s unclear when it might rule. Also, it’s unclear to what extent the Court might rule, given the ACLU’s case seeking full marriage recognition from the state is still awaiting a ruling from a lower court. The state has asked the federal judge hearing the ACLU case to move the adoption part of the case to the state Supreme Court, so the questions of adoption and full marriage recognition could be answered separately.

Meanwhile, the 10th Circuit’s decision in the appeal of the original marriage equality case is expected in the coming weeks.