Finding that the ability of a couple to adopt a child is a “benefit” of marriage, U.S. District Judge Daniel P. Jordan, III, ruled on March 31 in Campaign for Southern Equality v. Mississippi Department of Human Services, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss.), that Mississippi’s statutory ban on adoptions by same-sex couples probably violates the 14th Amendment under the Supreme Court’s ruling in Obergefell v. Hodges. Although Judge Jordan found that some of the plaintiffs and many of the defendants had to be dismissed from the case on grounds of standing and jurisdiction, he concluded that other plaintiffs did have standing to challenge the law in court, and that the Executive Director of the state’s Department of Human Services was an appropriate defendant to be ordered on behalf of the state not to enforce the ban while the lawsuit is pending. The ruling came as the state’s legislature was putting finishing touches on a so-called religious-freedom bill intended to protect persons or businesses with religious objections to same-sex marriage or sex relations between anyone other than a man and a woman united in marriage from any adverse consequences at the hand of the government or any liability for refusing to provide goods or services in connection with same-sex marriages. The constitutionality of such a measure is much disputed in light of Obergefell.
Among the plaintiffs are same-sex couples who sought second-parent adoptions of children born to one member of the couple by her same-sex partner, and same-sex couples who sought to adopt children not biologically related to either of them through the foster care system. The court found that one of the couples was not married at the time the complaint was filed, and dismissed them from the case for lack of standing, since the state denies adoptions to all unmarried couples, whether same-sex or different-sex. However, the court concluded that all of the remaining couples had standing to challenge the statutory ban in court, since an employee of the Department had told one of the couples in response to an inquiry about the foster-care route that the Department would continue enforcing the ban despite the Supreme Court’s June 26, 2015, ruling in Obergefell v. Hodges, which held that states are required under the 14th Amendment to allow same-sex couples to marry and to accord official recognition to same-sex marriages contracted in other jurisdictions. The organizational plaintiffs, Campaign for Southern Equality and Family Equality Council, met the test for associational standing by alleging that they had members who were married same-sex couples in Mississippi with interests in adoption similar to the named plaintiffs.
The court found, however, that neither the governor nor the attorney general were appropriate defendants, since neither of those state officials plays any role in administering the adoption system. On different grounds, the court dismissed from the case several judges who were named as defendants, finding that judges whose role is to adjudicate cases are not “adverse parties” to plaintiffs seeking to invalidate a state statute. The Department of Human Services could not itself be sued, as the 11th Amendment as construed by the Supreme Court gives state agencies general immunity from being sued by citizens of the state in federal court for violations of constitutional rights. However, the Supreme Court has allowed a “work around” for that constitutional barrier, by allowing suits against the officials charged with the direction of an agency that plays a role in the enforcement of a challenged statute. Judge Jordan found that the Department plays a significant role in administering the foster care system and in investigating adoption petitions and making recommendations to the courts, and thus the Director of the Department would be an appropriate defendant. While noting that the Department has stated recently that it would not stand in the way of a same-sex couple adopting a child, the court found there was sufficient evidence in the record that same-sex couples continue to be discouraged from applying for the foster care program to discount this statement for purposes of determining who can be sued in this case, stating that “the record before the Court indicates that [the Department] has interfered with same-sex adoptions after Obergefell.”
Turning to the merits of the plaintiffs’ motion for a preliminary injunction, the court had to confront the doctrinal mysteries of Justice Anthony Kennedy’s opinion for the Supreme Court in Obergefell. While that opinion makes clear that the right to marry as such is a fundamental right under the Due Process Clause of the 14th Amendment, and that exclusion of same-sex couples from marrying violates that fundamental right, the Court never directly addressed the question of what level of judicial review might be appropriate for claims that a same-sex couple is being denied any particular benefit of marriage, which would determine what kind of justification a state would have to present for treating same-sex couples differently from different-sex couples.
“While the majority’s approach [in Obergefell] could cause confusion if applied in lower courts to future cases involving marriage-related benefits,” wrote Jordan, “it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a ‘unified whole.’ And it further states that ‘the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefit afforded to opposite-sex couples %and% are barred from exercising a fundamental right.’”
“Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class,” Judge Jordan continued. “Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word ‘rational.’” Thus, from a doctrinal standpoint, the Obergefell opinion is in some sense incomplete. But it was not puzzling enough to deter Judge Jordan from moving ahead to the logical result.
“While it may be hard to discern a precise test,” he wrote, “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. According to the majority, ‘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.’” Judge Jordan noted Chief Justice John Roberts’ response to this point in his dissenting opinion, including his contention that as a result of the Court’s ruling “those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriage between same-sex couples.” (In all these quotations from Obergefell, the emphases were added by Judge Jordan.)
“In sum,” wrote Jordan, “the majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’ It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits – expressly including the right to adopt – would then conclude that married gay couples can be denied the very same benefits.” The conclusion is obvious: Obergefell decides this case. “The majority of the United States Supreme Court dictates the law of the land,” wrote Jordan, “and lower courts are bound to follow it,” which means the Mississippi statutory ban on same-sex couples adopting children violates the Equal Protection Clause.
In his March 31 decision Judge Jordan was not rendering a final ruling on the merits, but rather responding to the plaintiffs’ motion for a preliminary injunction against enforcement of the statutory ban while the case continues. The first step of determining whether plaintiffs can get their injunction requires the court to determine whether they are likely to win on the merits, and the foregoing discussion was directed to that point. Next Jordan considered whether allowing the ban to continue would inflict irreparable harm on the plaintiffs, which is simply answered by noting that monetary damages could not compensate a delay in being allowed to adopt a child and that a denial of equal protection of the laws is always considered an irreparable injury. Since the current position of the Department is that “it will not impede an otherwise valid gay adoption,” it was clear that the “balance of harms” between the parties favors plaintiffs, as does the factor of how the public interest would be affected by granting or denying an injunction. Thus, the court concluded that an injunction should be issued. “The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5),” ordered the court. There was no immediate word whether the state would attempt to appeal this grant of preliminary relief. Perhaps the court’s opinion will suffice to convince state officials that “marriage equality” as decreed by the Supreme Court means equality in all respects, invalidating any state law or policy that would treat same-sex married couples differently from different-sex married couples.
Since Obergefell dealt with benefits of marriage and did not rule on the rights, if any, of unmarried same-sex couples, it would not provide a direct precedent concerning attempted second-parent adoptions or adoptions out of foster care by unmarried same-sex couples, which is why one of the plaintiff couples was dismissed from the case, even though they informed the court that they had married after the complaint was filed. And it would be difficult to argue that unmarried same-sex couples are “similarly situated” to married couples in relation to the adoption of children, at least for purposes of an Equal Protection challenge. Everybody involved in the case, it appears, agrees that the sole issue is whether the challenged statute can be used to deny married same-sex couples a benefit afforded to married different-sex couples.
Lead attorney for the plaintiffs is Roberta “Robbie” Kaplan, a partner in the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, who also represented Campaign for Southern Equality in its successful legal challenge to Mississippi’s ban on same-sex marriage and Edith Windsor in her successful legal challenge to Section 3 of the Defense of Marriage Act.