Mississippi is the only state in the nation that still bans same-sex adoption, according to the Campaign for Southern Equality, which is suing to end this ban. Bans on same-sex adoption are legally untenable, especially after the Supreme Court’s recent marriage equality decision, which held that the constitutional right to marry is closely intertwined with the right to raise children. One reason “for protecting the right to marry,” according to Justice Anthony Kennedy’s decision in Obergefell v. Hodges, “is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” Indeed, the Supreme Court has explained that, “the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”
Nevertheless, Mississippi Attorney General Jim Hood (D) attempted to defend his state’s adoption ban in a document filed in federal court on Friday.
In what may be a nod to the fact that his legal arguments on the merits are weak, Hood devotes much of his legal filing to procedural objections to this suit — arguing, for example, that the plaintiffs sued the wrong state officials, and that they failed to jump through certain state-level procedural hoops before bringing this lawsuit.
Still, Hood does attempt to argue that the constitutional right to marry does not extend to same-sex adoptions. “In contrast to the fundamental right to marriage at issue in Obergefell,” Hood’s filing claims, “it is well-settled that Mississippi’s adoption laws confer a statutory privilege, not a fundamental constitutional right to adopt protected by the Due Process or Equal Protection Clauses.” To support this claim, he relies primarily on a 2004 decision by the United States Court of Appeals for the Eleventh Circuit which upheld a Florida law “which prevents adoption by practicing homosexuals.”
This is, to say the least, a precarious perch for Hood to rest upon. For one thing, the Eleventh Circuit does not include Mississippi — Mississippi is located in the Fifth Circuit. For another, even if the Eleventh Circuit’s decision did once hold sway in Mississippi, a court of appeals decision is trumped by a more recent Supreme Court opinion. So Obergefell’s language linking the right to raise children to the right to marry is now the controlling legal rule in the entire United States.
Indeed, in holding that same-sex couples enjoy the right to marry, Obergefell highlighted the gut-wrenching consequences that could result if this right did not include the right to adopt. Two of the plaintiffs in Obergefell, April DeBoer and Jayne Rowse were themselves seeking this right:
In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Mississippi now seeks to impose similar risks upon many couples within its own borders. After Obergefell, this is not just a meritless legal position, it is indefensible as a matter of law.