University of Illinois law professor Sara R. Benson, an expert on sexual orientation and the law, spoke with News Bureau business and law editor Phil Ciciora about V.L. v. E.L., a potential watershed case concerning the issue of gay adoption. The dispute involves a lesbian couple – the biological mother of three children and an adoptive parent of the children – that has split up. The adoptions occurred in Georgia in 2007, and the couple subsequently moved to Alabama. In the context of the adoptive parent’s request for visitation rights, the Alabama Supreme Court refused to recognize the adoptions as legal and declared the adoption decree void.
How likely is it that the U.S. Supreme Court will want to hear this case? By wading into the dispute with a three-sentence order to stay the decision of the Alabama Supreme Court, is the high court tipping its hand?
It’s likely that the Supreme Court will hear the case, especially because that is one of the considerations that the justices examine when deciding whether to grant a stay. It is rare that a judgment is stayed before the Supreme Court accepts a case, particularly because the other requirements are that the justices believe the judgment of the lower court will likely be overturned and that the party requesting the stay will suffer irreparable harm if the stay is not granted.
In this case, Justice Thomas implicitly agreed that irreparable harm would occur to the parent-child relationship if the stay were not granted.
What’s at issue in V.L. v. E.L.? If the Supreme Court accepts the case, will it serve as a proxy for the same-sex adoption issue? In other words, is the case a simple dispute between states, or is it likely to open a new phase of family law for gays?
This case is actually a very simple one at its core: A final judgment was entered and it was ignored, which is unconstitutional. But it carries some deep-seated political issues with it.
Legally, the case is about the full faith and credit clause, which provides that states must recognize the judgments of other states. Justice Thomas granted the stay because a valid adoption decree entered by one state must be recognized by the next. But layered onto that are the moral issues that were brought into the case by the Alabama Supreme Court about whether same-sex couples should be able to adopt at all, and whether the Georgia court that originally granted the adoption read the Georgia statutes correctly.
Interestingly, the question of whether the court that granted the initial judgment was correct in applying its own state laws is inappropriate in full faith and credit jurisprudence.
If the high court accepts the case, how do you expect it to be resolved? Do you see it falling under similar voting lines as last summer’s landmark same-sex marriage decision, which cited the welfare of children as one of the reasons to grant gay and lesbian couples the constitutional right to wed?
I see this case as a very simple one. Like the case of Kim Davis, the Kentucky clerk who had no legal merit to her decision not to provide same-sex couples with marriage licenses, it demonstrates that same-sex parenthood is still a highly debated topic – even, at times, among judges.
In my view, the actions by the Alabama Supreme Court were not grounded in the law, but rather constituted an act of judicial activism to justify the ends that the judges wished to achieve. Justice Thomas recognizes this, too, which is why he granted the stay of the Alabama Supreme Court judgment.
Is this the last case about same-sex couples and parenting that will wend its way through the courts?
Definitely not. Although same-sex marriage is now a given in the U.S., the aggrieved party in the V.L. v. E.L. case adopted the children in 2007, before same-sex marriage was an option in Georgia. Thus, the ability of a nonspouse to adopt a child without first terminating the rights of the current parents was called into question by the Alabama Supreme Court.
Generally, these types of provisions do not apply to stepparents, but to another nonbiological party who wishes to adopt the child, thereby disallowing them to formally adopt the child without the termination of the parental rights of the current parents. Of course, the simple solution today would be to get married first and then adopt.
There are additional issues related to whether the presumption of parenthood that normally attaches to births occurring during marriage would attach to the birth of a child during the marriage of a same-sex couple. The general basis for the presumption of parenthood is that the likely parents are the married spouses. However, the obvious issue in same-sex relationships is that they cannot easily procreate without some sort of intervention. These issues have not yet been fully addressed in the courts, either.