WASHINGTON — The Supreme Court could revisit the issue of same-sex couples’ rights as soon as this term if the justices take up the appeal of a woman whose Georgia adoption of her former partner’s children was ignored as “void” by the Alabama Supreme Court in September.
The legal issue here, however, doesn't directly relate to marriage or even same-sex relationships — centering instead on whether Alabama violated the Full Faith and Credit clause of the Constitution by not respecting the Georgia court’s adoption ruling.
Warning of the “grave practical harm” of the decision, the lawyers for the woman on Monday asked the Supreme Court to hear the case, in part, because it presents “the ultimate conflict of authority — dueling court orders in different states — and threatens to shatter the legal ties that bind numerous Alabama adoptive parents to their children.”
The complex procedural case involves a now-ended relationship between two women — whose names are presented only as initials V.L. and E.L. in the court filings. The women lived in Alabama, were in a long-term relationship, and had three children. E.L. gave birth to the children, and, eventually, the couple decided it would be smart to have V.L. adopt the children so both mothers would be their legal parents.
Because Alabama would not allow such an adoption, the couple secured the adoption in Georgia. And while questions have now been raised about whether that adoption should have been allowed, both V.L. and E.L. supported it at the time it was sought and granted in 2007. The couple later ended their relationship, though, eventually leading to V.L. going to court in Alabama seeking to have the adoption decree enforced because she claimed that E.L. was denying her access to the children.
While lower Alabama courts sided with V.L., the Alabama Supreme Court sided with E.L. in a ruling that rejected not only the validity of the Georgia adoption — because, the opinion stated, Georgia law only would allow an adoption like the one entered into by V.L. if E.L. had given up all of her parental rights — but the jurisdiction of the Georgia court even to have heard the adoption request.
“The Georgia judgment is accordingly void, and the full faith and credit clause does not require the courts of Alabama to recognize that judgment,” the opinion stated. “Indeed, it would be error for the courts of this State to do so ….”
In contrast, the lower court held, as V.L. argues, that the court had jurisdiction to hear all adoption cases, so the question of whether the adoption should have been allowed is a question on the merits of the issue and, as such, an issue that only Georgia courts could upend. Under the Full Faith and Credit Clause of the U.S. Constitution, V.L. argues, Alabama courts must respect that Georgia adoption.
Because it found the Georgia adoption to have been a jurisdictional defect, however, the Alabama Supreme Court reasoned that the Alabama courts should give the Georgia adoption decree no effect. The lower court decisions were reversed, meaning V.L. would not be viewed as a parent in Alabama.
In effect, eight years after the adoption decree was finalized by a Georgia court, the Alabama Supreme Court ruled that the adoption never could have been approved under Georgia law, and so, now — even though no Georgia court had ever ruled that way — the Alabama Supreme Court could and did refuse to enforce the adoption decree.
The facts of the dispute and ruling led Adam Unikowsky, a partner at Jenner & Block, to join the National Center for Lesbian Rights and the Alabama lawyers for V.L. in filing the petition for certiorari in the case at the Supreme Court on Monday. Unikowsky also enlisted the help of fellow Jenner & Block partner Paul Smith — best known in gay legal circles for arguing successfully against sodomy laws at the Supreme Court in 2003.
“The thing about it is, it’s so glaringly, clearly wrong to have a judge in one state decide that the court in the other state got that state’s law wrong — and make it jurisdictional on top of that, for no reason — is just trampling on the basic principles of full faith and credit,” Smith told BuzzFeed News on Monday afternoon. “And, it’s doing it in the adoption context, which is the area where you want to have finality most of all. You can’t tell someone they’re no longer a parent 8 years later based on what state you’re in. It’s a terrible decision.”
Unikowsky, a former clerk to Justice Antonin Scalia, is the counsel of record in the cert petition to the justices, as well as a request, also filed on Monday, asking for expedited consideration of a request to “recall and stay” the Alabama Supreme Court’s judgement in the case. That request was submitted to Justice Clarence Thomas, who can decide the request on his own or refer the matter tot he full court.
Notably, the cert petition presents the issue as a procedural case — not a “gay rights” case — declaring, “This Court should grant certiorari. The decision of the Alabama Supreme Court conflicts with a century of this Court’s Full Faith and Credit case law and deals a serious blow to the principles of comity and finality underlying the Clause.”
Smith echoed that in talking with BuzzFeed News about the filing, saying simply, “This doesn’t have to do with the identity of the parents; it has to do with finality of judgments.”
Of course, there is no guarantee the justices will take the case — especially when, as here, the ruling is an outlier and not part of a series of conflicting rulings among appellate courts. Discussing the filing on Monday, though, NCLR Family Law Director Cathy Sakimura said that, despite the “unprecedented” nature of the ruling, she hoped the court would take up the case.
“As a result of that serious constitutional violation, the children in this case have been wrongly separated from one of their parents, and the stability of adoption judgments across the country has been called into question,” Sakimura said in a statement. “We are hopeful the Court will review this unprecedented decision and ensure that other states do not go down this dangerous and unlawful path.”
Even in the absence of disagreement among lower courts on the issue, Smith said, “There are times when the court just decides something needs to be fixed even though it’s not a circuit split or something like that. We’ll see. At least we have to give them the opportunity to fix this because it’s such an egregious thing, to take away parenthood in this kind of situation ….”
If the justices decide to take up the case and do so by mid-January, the case likely would be heard by the justices this term — meaning a decision would be expected by the end of June.
The court-appointed representative of the children in V.L. and E.L.'s litigation weighed in at the Supreme Court on Wednesday, seeking a stay of the Alabama Supreme Court's judgment in order to give the children access to both of their mothers.
Writing that it is "beyond dispute" that the three children "are presently being harmed and that the harm will continue absent a stay," the guardian ad litem, representing the children's interests, argues that the current circumstances — the Alabama Supreme Court order holding that V.L.'s adoption of their children is void — "are antithetical to the children's best interests and the reality that they have known their whole lives."
The guardian ad litem, represented by lawyers with Morrison & Foerster LLP, also noted that it "intends to file a response in support of the certiorari petition" that was filed by V.L.
Justice Clarence Thomas, the circuit justice to whom the recall and stay applications were directed, has called for a response to the applications — the initial application from V.L. and the second from the guardian ad litem — by 4 p.m. Monday, Nov. 30.