Mississippi’s ban on same-sex marriage is now defunct thanks to the U.S. Supreme Court’s historic decision in favor of gay nuptials, but new litigation seeks to finish the job for LGBT families in the state law by challenging the adoption law.
On Wednesday, the LGBT advocacy group Family Equality Council and the Campaign for Southern Equality, which advocates on behalf of LGBT people in the South, filed litigation in federal court against Mississippi’s law banning gay couples from adoption.
The 38-page lawsuit, Campaign for Southern Equality v. Mississippi Department of Human Services, challenges the state law — saying it’s the last in the country that explicitly bars gay couples from adoption — on the basis that it violates the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
“The Mississippi Adoption Ban writes inequality into Mississippi law by requiring that married gay and lesbian couples and parents be treated differently than all other married couples in Mississippi, unequivocally barring them from adoption without regard to their circumstances,” the complaint says. “As a consequence, the equal dignity of hundreds of families and thousands of children in Mississippi is disrespected and the significant and concrete rights, benefits, and duties that come with legal parentage are denied.”
Enacted in 2000, the gay adoption ban in Mississippi state code consists of nine words: “Adoption by couples of the same gender is prohibited.”
“Those nine words in Mississippi’s statutory code not only nullify, for gay people only, all of the factors otherwise considered relevant in ensuring that adoptions in Mississippi are performed in the best interests of the child, but blatantly discriminate against gay couples who are now legally married,” the complaint says.
The attorneys who filed the complaint are Robert McDuff, an attorney with the Jackson, Miss.-based law firm McDuff & Byrd, and Roberta Kaplan, the New York-based lesbian attorney who successfully argued against the Defense of Marriage Act before the Supreme Court in 2013. Both lawyers represented plaintiff same-sex couples in the Mississippi marriage case.
“Mississippi’s ban on adoption by gay and lesbian couples blatantly discriminates against loving families, unfairly harms innocent children, and plainly cannot be reconciled with the constitutional guarantees of due process and equal protection as recently interpreted by the Supreme Court,” Kaplan said in a statement.
Plaintiff families in the lawsuit consist of four lesbian couples — two who are seeking second-parent adoption for children they’re already raising, and two who are childless but seeking to adopt.
One of the couples is Donna Phillips and Janet Smith, who’ve been together since 1995 and married in Maryland in 2013. They reside in Rankin County, Miss., and have lived in the state their entire lives.
In 2007, Phillips gave birth to an eight-year-old daughter, who remains anonymous in the lawsuit. Because of the state’s adoption ban, only Phillips’ name is listed on the child’s birth certificate, not Smith’s. The child has no legal parent other than Phillips.
The couple has sought to allow Smith to adopt the child because Phillips’ military duties often take her away from home and there’s a possibility Phillips could be killed or seriously injured in the line of duty.
Their efforts have been unsuccessful. Not only has every social worker they have tried to engage to perform a home study rebuffed their request because of state law, some told the couple they feared performing a home study would endanger their standing with the state, according to the lawsuit.
Another plaintiff couple in the lawsuit is Jessica Harbuck and Brittany Rowell, who’ve been together since 2010 and are engaged to wed in Jackson, Miss., in January 2016. The couple is seeking the ability to adopt and say they’re well-suited to take care of children, both financially and emotionally.
“Like many other couples, we are looking into the future and how we want to start expanding our family,” Harbuck and Rowell said in a joint statement. “We feel compelled to adopt because the staggering statistics for children in foster care are daunting. We want to open our home to a child and make them feel safe, wanted, and loved. Every child deserves that. And we would be honored to be able to change the life of a child.”
Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said in a statement stories like Harbuck and Rowell’s are common in Mississippi.
“Across Mississippi, there are same-sex couples like Brittany and Jessica who are ready and able to provide a loving, stable home to children and there are waiting children in Mississippi’s foster care system who desperately need a home,” Beach-Ferrara said. “What stands between them is a discriminatory law that must be struck down. It’s time for Mississippi to treat LGBT families as equal in every area of the law — including the right to adopt.”
The other plaintiff couples in the lawsuit are Kari Lunsford and Tinora Sweeten-Lunsford, who are seeking to adopt a child, and Kathryn Garner and Susan Hrostowski, who have a 15-year-old son.
Although Mississippi bans adoption by gay couples, the state actually leads the nation in the percentage of same-sex couples raising children. According to a 2014 study by the Williams Institute, University of California, Los Angeles, 29 percent of the same-sex couples in Mississippi are raising 1,401 non-adult children in their homes.
And there’s an apparent need for more to adopt. According to the lawsuit, 100 children in Mississippi are in foster care and available to be adopted, but haven’t yet been matched with parents.
Mississippi Gov. Phil Bryant said in a statement to the Washington Blade he supports the adoption ban. In 2013, he signed into law a religious freedom measure seen to enable anti-LGBT discrimination in his state.
“The current statutory law in Mississippi prohibits adoption by couples of the same gender,” Bryant said. “This prohibition was added by the legislature in 2000. I hope the attorney general will vigorously defend the State of Mississippi against this lawsuit.”
Rachel Ring, a spokesperson for Mississippi Attorney General Jim Hood, was non-committal about the next steps the attorney general would take.
“We have received the complaint and are reviewing it,” Ring said. “We don’t have a comment at this time.”
The lawsuit comes as LGBT advocates have renewed efforts to ensure equal treatment for same-sex parents in states throughout the country. Just this week, the San Francisco-based National Center for Lesbian Rights launched a campaign known as #Equality4Families to raise awareness to reform state laws.
“No child should ever lose a parent just because the law refuses to recognize them as a family,” said NCLR Family Law Director Cathy Sakimura. “For as long as it takes we will be here, working to bring dignity and full recognition to LGBT parents and their children in every state.”
In Congress, legislation known as the Every Child Deserves a Family Act — introduced by Sen. Kirsten Gillibrand (D-N.Y.) in the U.S. Senate and Rep. John Lewis (D-Ga.) in the U.S. House — would bar any adoption or foster care placement entity that receives federal funds from discriminating against parents based on sexual orientation, gender identity or marital status.
And there have been some recent victories. Last month, a federal judge ordered Utah to change its adoption laws in the aftermath of the U.S. Supreme Court decision on same-sex marriage, instructing the state to place a same-sex couple on their child’s birth certificate.
In 1977, Florida enacted a law prohibiting gay people from adopting, but the statute wasn’t enforced after a court decision against the law in 2011. The state formally repealed the statute under Republican Gov. Rick Scott in June.
Gabriel Blau, executive director of Family Equality Council, said in a statement Mississippi’s law disregards what’s best for children.
“The best interest of children must always be at the heart of family law,” Blau said. “Mississippi’s statute disregards what is best for children, families and America. This blatant discrimination hurts our families and treats them like second-class citizens. Mississippi has the highest rate of same-sex couples raising children in the country. All families — no matter in which state they make their home — deserve to be treated equally, and all children deserve to be protected by legal relationships with their parents.”