BY ARTHUR LEONARD | The US Supreme Court unanimously reversed a decision by the Alabama Supreme Court and ordered that Alabama courts accord “full faith and credit” to a lesbian co-parent adoption approved by a Georgia trial court.
The March 7 decision in V.L. v. E.L. was reached without any oral argument before the high court, and the opinion was issued “per curiam” –– unsigned, on behalf of the court, without any dissent from its conservative members. It came just days after the Alabama Supreme Court dismissed a pending case brought by a local probate judge seeking to block implementation of last June’s Supreme Court marriage equality decision.
The Alabama Supreme Court’s decision in E.L. v. V.L., issued last September 18, was a shocking departure from how courts normally deal with recognition of out-of-state adoptions. The US Constitution provides that states will accord “full faith and credit” to “the public acts, records, and judicial proceedings” from other states. Since adoptions are judicial proceedings, the Supreme Court has always taken the view that the courts of one state must honor the court rulings of other states, with a narrow exception for situations where the courts of the other state did not have authority –– or “jurisdiction” –– to issue the ruling.
In this case, a lesbian couple living in Alabama decided to have children together and wanted to protect the relationship between the children and their birth mother’s partner. Since “second-parent” adoptions were not available in Alabama, they temporarily relocated to Atlanta and obtained an order from the Superior Court there. The birth mother specifically consented to allow her partner to adopt the children with the understanding that this would not affect her own parental status. Although Georgia’s adoption statutes do not specifically authorize such an adoption, the trial judge — as have others in Atlanta trial courts — found he could approve the adoption without cutting off the birth mother’s parental status.
Then the couple moved back to Alabama. A few years later the women separated, and the birth mother cut off her former partner’s contact with the children. The partner filed suit in an Alabama court, seeking confirmation of the Georgia adoption and “some measure of custody or visitation rights.” The Alabama court recognized the adoption and awarded temporary visitation while the case was pending.
The birth mother appealed, arguing that the court should not have recognized the Georgia adoption, claiming the Georgia trial court did not have jurisdiction to approve a “second-parent” adoption. The Alabama court of appeals rejected that argument, but the Alabama Supreme Court accepted it, in a strange decision that drew a sharply-worded dissent.
The plaintiff filed an emergency petition with the US Supreme Court seeking to preserve her temporary visitation rights while urging reversal of the Alabama Supreme Court’s decision. On December 14, the US Supreme Court placed a stay on the Alabama Supreme Court’s order, thus allowing continued visitation.
The Supreme Court’s March 7 action is called a summary reversal, because the court issued a ruling on the merits of the appeal based on the petition for review filed by the plaintiff and whatever response the defendant filed, without calling for full briefing and oral arguments. The speed with which the court acted, as much as the short opinion it issued, signaled clearly how wrong the Alabama Supreme Court ruling was.
The US Supreme Court has never ruled directly on whether states are constitutionally required to allow same-sex partners to adopt in these situations, and this case did not call on the high court to make such a ruling. Rather, the court made clear that state courts are not entitled to second-guess how the courts of other states interpret their adoption statutes.
The Alabama Supreme Court had adopted an approach that would have gutted the requirement of full faith and credit, by asserting that if it disagreed with how a trial court in another state interpreted its adoption statute it could find that the trial court did not have authority to render the decision and so was not owed full faith and credit. The US Supreme Court rejected this theory out of hand.
“Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction ‘is to be presumed unless disproved,’” wrote the high court, quoting one of its earlier full faith and credit decisions. “There is nothing here to rebut that presumption.” The opinion noted that neither the Georgia Supreme Court “nor any Georgia appellate court” had construed the state’s adoption statute to limit the authority of its trial courts to approve adoptions “only if each existing parent or guardian has surrendered his or her parental rights.”
The adoption judgment issued in Georgia “appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary,” concluded the US Supreme Court. “It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.”
This ruling came just days after the Alabama Supreme Court reluctantly threw in the towel and issued an order dismissing a pending action brought by a county clerk seeking to prolong defiance of the US Supreme Court’s marriage equality ruling, Obergefell v. Hodges. A year ago, months before Obergefell was announced on June 26, a federal trial judge in Alabama ruled that the state’s ban on marriage equality was unconstitutional and ordered a local probate judge to issue marriage licenses.
The resulting controversy led to an Alabama Supreme Court decision in a case filed by some probate judges, known as In re King, rejecting the argument that the state’s ban was unconstitutional and directing probate judges not to issue marriage licenses to same-sex couples, with the exception of the probate judge who had been directly ordered to issue such licenses by the federal court.
After the Obergefell decision was issued, the Alabama Supreme Court asked the parties in that case to submit arguments about the effect of Obergefell on its prior decision and on the obligations of the state’s probate judges regarding marriage licenses. As time dragged on with no ruling by the Alabama court, more and more probate judges began to issue licenses. In response, on January 6, Chief Justice Roy Moore issued an “administrative order” directing them not to issue the licenses until the Alabama Supreme Court ruled.
On March 4, the Alabama court dismissed the case in a one-sentence order, which was accompanied by “concurring opinions” totaling 169 pages by several of the judges, most prominently Chief Justice Moore.
All of the justices agreed that the Obergefell opinion is now the governing law, but Moore’s “special concurrence,” running almost 100 pages, is a fervent denunciation of that decision, echoing the views of the dissenting US Supreme Court justices. The foundation of his argument is that “marriage” is an institution ordained by God and that it is beyond the scope of judicial power to “redefine” it. Some of his colleagues, unwilling to go that far, wrote or joined separate concurrences that make more traditional legal doctrinal arguments.
None of the Alabama justices was willing to defend the Obergefell decision on the merits, but Justice Greg Shaw, a dissenter from last year’s Alabama high court ruling, took pains to disassociate himself from criticisms of Obergefell on the ground that the Alabama Supreme Court has nothing to say about the issue once the US Supreme Court has decided a constitutional question.
Shaw wrote, “The debate over the legal and moral propriety of same-sex government marriage will certainly continue; but that debate has necessarily shifted to the court of public opinion. The issue, for all practical purposes, is now a political one. The genius of our Founding Fathers is reflected in our constitutional form of government, which dictates that whether Obergefell stands the test of time or ultimately finds itself cast upon the trash heap of history depends upon the people of the United States, who serve as the ultimate repository of political power and whose collective voices can be heard through their elected representatives at both the federal and state levels. If there is to be a showdown with respect to this issue, it could never have been led by this Court. Such a showdown must pit the judicial will of the highest court in the land against the greater political will of the people of this country.”
Shaw derided as “silly” Chief Justice Moore’s continuing argument that the Obergefell decision was binding only on the four states of the Sixth Circuit, whose decision the Supreme Court had reversed, and Moore’s assertion that the Alabama Supreme Court’s ruling from last year upholding the state’s marriage ban is still in effect. As far as Shaw is concerned, the probate judges are bound to comply with the order of the US District Court issued last year –– even before Obergefell was decided –– which the trial judge had expanded to a class order running against all the probate judges in the state.
The Alabama high court’s dismissal of the case leaves the probate judges without any cover for continued defiance of the federal court order, so marriage licenses should be available for same-sex couples in every county. Continued obstruction could subject probate judges to contempt orders and a fate akin to that suffered by Kentucky’s Rowan County Clerk Kim Davis, who spent some time stewing in jail until she was willing to let subordinates in her office issue marriage licenses.