A federal court has struck down the Mississippi ban on same-sex couples adopting in the state based on the U.S. Supreme Court ruling in favor of same-sex marriage.
U.S. District Judge Daniel Jordan III, an appointee of former President George W. Bush, issued a preliminary injunction against the law in a 28-page decision Thursday.
Invoking the Supreme Court decision in favor of same-sex marriage, Jordan writes it “seems highly unlikely” a high court that struck down state marriage bans on the basis they deny benefits to gay couples, including the right to adopt, would “then conclude that married gay couples can be denied that very same benefit.”
“Obergefell obviously reflects conflicting judicial philosophies,” Jordan writes. “While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. 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 that section 93-17 3(5) violates the Equal Protection Clause of the United States Constitution.”
Jordan accuses state officials defending the ban of making “a tepid defense of the statute itself” and focusing instead on denying plaintiffs’ right to sue on the basis they lack Article III standing and can’t overcome state immunity under the 11th Amendment. Further, he notes officials contend there’s no injury because defendants lack authority to enforce the ban, or wouldn’t enforce it to impede an otherwise valid adoption.
For those technical reasons, Jordan finds plaintiffs have standing in the lawsuit with regard to the executive director of the Mississippi Department of Human Services, but no other defendant. Nonetheless, Jordan still reached the conclusion Mississippi’s adoption ban is unconstitutional because it contravenes the Fourteenth Amendment to the U.S. Constitution.
Enacted in 2000, the gay adoption ban in Mississippi state code consists of nine words: “Adoption by couples of the same gender is prohibited.” It’s considered the last remaining state law in the country to explicitly prohibit same-sex couples from adopting.
The plaintiffs in the lawsuit, which was filed in August, are the Campaign for Southern Equality, the Family Equality Council and four lesbian couples — two that were seeking second-parent adoption for children they’re already raising, and two who were childless but seeking to adopt.
Representing the plaintiffs in the lawsuit is Roberta Kaplan, the New York-based lesbian attorney with Paul, Weiss, Rifkind, Wharton & Garrison LLP who successfully argued against the Defense of Marriage Act before the U.S. Supreme Court and Mississippi’s ban on same-sex marriage before trial court.
Kaplan told Washington Blade the plaintiff couples she represents in the adoption lawsuit are “thrilled and ecstatic” the court has ruled in favor of their adoption rights.
“And that’s as it should be,” Kaplan added. “Two of the sets of clients are women who’ve waited many, many years to be able to submit legally the long-standing parental bonds they have with their kids. So this is a very, very, very happy day for them. I’ve already heard one of our clients has been bawling ever since getting the decision. I’m going to assume those are tears of joy.”
Additionally, Kaplan said the ruling demonstrates the U.S. Supreme Court decision in favor of same-sex marriage means laws discriminating against gay people won’t be tolerated in the courts.
“What I think it shows is that under the federal Constitution has made clear that discriminating against gay people is unconstitutional,” Kaplan said. “It violates equal protection and that any laws in the past or in the future by any states that seek to fence gay people up, solely because they’re gay, are going to get struck down.”
The court strikes down the adoption ban as the Mississippi legislature is considering “religious freedom” legislation seen to enable sweeping discrimination against LGBT people, including the right to deny wedding services, employment or housing under state law. The Senate has approved the bill, but another vote in the House is expected before the measure heads to the desk of Gov. Phil Bryant.
Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said the ruling is significant for LGBT families in Mississippi.
“LGBT families live in every town across Mississippi and can finally have the rights and protections that every family should,” Beach-Ferrara said. “This ruling is a critical step forward in the journey toward full equality in every sphere of life for LGBT people in Mississippi.”
It remains to be seen whether Mississippi will seek to appeal the decision. Should Attorney General Jim Hood, a Democrat who defended the law in court, decide to appeal, the U.S. Fifth Circuit Court of Appeals would have jurisdiction over the lawsuit.
Hood claimed a partial victory as a result of the court decision in a statement to the Washington Blade, declining to commit one way or the other on appeal.
“We are pleased that the district court agreed with our attorneys that the governor, attorney General, and state court judges should be dismissed from this lawsuit,” Hood said. “The district court did direct the Department of Human Services not to discriminate between same-sex and opposite-sex couples in adoption related services provided by that agency. We respect the district court’s analysis of the law and will consult with the Department of Human Services on what options to take going forward.”