A federal judge in Mississippi ordered the state to drop its ban on adoptions by same-sex married couples, saying Wednesday that it doesn’t pass muster under the Supreme Court’s 2015 landmark marriage ruling.
The law was said to be the last of its kind in the U.S. But efforts to skirt the full implementation of the Supreme Court’s decision in Obergefell v. Hodges using laws described as “religious freedom acts” remain alive and well in a number of Republican-led states along with measures permitting discrimination against transgender people.
Indeed, the Mississippi legislature has just approved a bill that says, among other things, public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman and that the state government can’t prevent clerks from refusing to license a same-sex marriage. The measure is currently in a conference committee to work out differences between state House and Senate versions.
The state’s prohibition on adoption by same-sex couples was enacted in 2000, as state and federal courts began the process of legalizing same-sex marriage, and reads, simply, “Adoption by couples of the same gender is prohibited.”
It was challenged by four lesbian couples wishing to adopt children either privately or through the state’s foster care system.
Judge Daniel P. Jordan III, of the U.S. District Court for the Southern District of Mississippi, called the state’s defense of the law “tepid,” based mostly on issues of standing, and which agency or part of government could or could not be sued.
While Jordan said the Supreme Court’s Obergefell decision did not specifically involve adoptions, “the Court extended its holding to marriage related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts.” Jordan cited this passage of the Obergefell opinion, written by Justice Anthony Kennedy: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.”
Jordan reasoned: “The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means” Mississippi’s law “… violates the Equal Protection Clause of the United States Constitution.”
Susan Hrostowski and Kathryn Garner, who have a 15-year-old son, were plaintiffs in the case and, in a statement published by the Clarion-Ledger, said they were “overwhelmed with joy. Our son just turned 16 on Easter Sunday and is going to get his driver’s license tomorrow . . . For us, the feeling and the way we have operated as a family have never been impacted by this law. But to have this ruling and to be able to start the adoption proceedings tomorrow means everything to me. There is no greater joy on this planet than to have him as my son and for the world to understand, appreciate and affirm that he is my son. It means everything.”
Citing 2010 Census data, the Clarion-Ledger reported 29 percent of Mississippi’s same-sex couples were raising children under 18 in their households, but had been barred by state law from successfully seeking and completing adoption applications.
There was no word on whether Mississippi plans an appeal Jordan’s ruling.