The Supreme Court’s ruling in Obergefell v. Hodges, which legalized marriage for same-sex couples nationwide, has provoked some controversy (although not nearly what one might have predicted even a few years ago). Bakers who don’t want to decorate cakes for gay weddings. County clerks who don’t want to issue marriage licenses to same-sex couples. A state supreme court justice who orders probate judges and state employees to disregard federal courts rulings allowing same-sex couples to marry. Or, my personal favorite, a Tennessee legislator who explained to his fellow officeholders that their state did not have to follow Obergefell because what the Supreme Court expressed was only “an opinion.”
The reaction to these attempts to ignore or subvert the Court’s clear holding—that states cannot constitutionally ban the celebration or recognition of marriage by same-sex couples—has been like a game of legal whack-a-mole. The bakers (and photographers and wedding venue proprietors) have by and large been told by courts that their religious freedom is simply not broad enough to allow them to discriminate against customers on the basis of sexual orientation. Kim Davis, a county clerk in Kentucky, was first jailed for her refusal to issue licenses and then ordered not to interfere with the issuance of licenses by her deputy clerks (though she was permitted to remove her name from the licenses going forward). Chief Justice of the Alabama Supreme Court, Roy Moore, famous for his blatant refusal to comply with a federal court order to take down a Ten Commandments monument in the courthouse, is still trying to stop officials in his state from complying with Obergefell, but they have mostly disobeyed his order. And the Tennessee legislator? No one bothered to respond to his silly suggestion that a written opinion of the United States Supreme Court, interpreting a provision of the federal Constitution, had no more weight than advice in a Dear Abby column.
But perhaps the most outrageous of all the moles to pop up in the wake of Obergefell was a ruling by the Alabama Supreme Court that a final judgment of adoption issued by a Georgia court did not need to be given “full faith and credit” by courts in Alabama. This mole was whacked hard, with a per curiam (unanimous, with no author identified) opinion from the Supreme Court, without the benefit of briefing on the merits or oral argument, telling Alabama to obey the U.S. Constitution.
V.L. v. E.L.: A Parentage Dispute
The parentage dispute at hand arose out of the breakup of a sixteen-year relationship between V.L. and E.L., two women who had together raised three children from their births. E.L. gave birth to the children, and V.L. adopted them (in Georgia). But when the two women broke up, E.L. unilaterally decided to sever ties between V.L. and the children. Living in Alabama at the time, V.L. filed a petition in an Alabama court to register the adoption decree from Georgia and to seek custody or visitation. Although the trial court gave effect to the adoption order and ordered some visitation, the order was reversed on appeal by the Alabama Supreme Court, on the theory that the Georgia court did not have jurisdiction to issue the adoption decree in the first place and, therefore, the Alabama court did not have to give it full faith and credit. V.L. petitioned for review by the U.S. Supreme Court, arguing that the adoption decree was entitled to respect under the Full Faith and Credit Clause of the federal Constitution.
Parentage Law for Lesbian Couples
V.L.’s petition for custody or visitation had to be predicated on her status as a legal parent of the three children. A non-parent would have no standing to seek custody over the objection of a fit parent (E.L.) and very little chance of obtaining visitation in those circumstances (a discussion of third-party visitation rules is here). But as a legal parent, she has the right to the care, custody, and control of the children—and, in a custody dispute, the standing to seek custody or visitation and to have any dispute with another parent be resolved solely on the basis of the best interests of the child.
How does a person acquire the status of legal parent, with the substantial rights and obligations that come with the title? The answer was once simple, but now can be complicated by reproductive technology, the involvement of more than two adults, unmarried couples, or parents of the same sex. The underlying issue in V.L. v. E.L. involves a recurring issue—whether and how a lesbian co-parent can acquire parental or quasi-parental rights that prevent the biological parent from unilaterally severing ties after the adult relationship ends. If the child has only one legal parent, that parent has an almost unfettered right to decide whether the child will have contact with another adult. But if the child has two parents—in these cases, two mothers—neither has a superior right to custody, nor an exclusive one.
The biological mother in this and virtually all other situations becomes a legal parent by the act of giving birth. (Birth pursuant to an enforceable surrogacy contract is an exception to this general rule, as discussed here.) Thus, E.L., with both a genetic and gestational tie to the three children, is unquestionably their legal mother.
But what about V.L.? The law regulating the parental rights of lesbian co-parents is both in flux and differs across jurisdictions. Depending on the state, a lesbian co-parent may or may not have effective ways to acquire legal parent status, including second-parent adoption, a marital presumption of maternity, de facto parentage, or parentage by contract. The law of lesbian co-parents developed mostly in an era when same-sex couples could not marry. That was an important fact that dictated some harsh results, as explained below. Now that same-sex couples can marry in every state, the law may continue to change, but not all in one direction.
Without marriage, lesbian co-parents have three possible options for acquiring parental status (and thus parental rights). In some states, co-parenting agreements are enforceable (as discussed here), as courts have interpreted the biological mother’s agreement to constitute consent to the sharing of her otherwise exclusive, constitutionally protected parental rights. In some states, courts have recognized lesbian co-parents through the de facto parentage doctrine, in which a co-parent seeks recognition based on the functional parent-child tie that the biological mother fostered and encouraged between the co-parent and the child (as discussed here). In some states, a biological mother and lesbian co-parent could jointly petition to adopt a child (already tied to the biological mother) in a so-called second-parent adoption. This was developed by courts in some states as an equitable workaround for the lack of access by lesbian couples to stepparent adoption, which is traditionally the only way for an adoptive parent to obtain rights without the biological parent relinquishing them at the same time.
With marriage, lesbian co-parents are now likely to have an additional option—assuming they exercise the right to marry. Most states seem inclined to extend the traditional marital presumption, which deems a woman’s husband to be the legal father of her offspring born during the marriage, to same-sex spouses. This law is very much still evolving, as the right to marry is new.
Second-Parent Adoption: The Gold Standard for Protecting Co-Parent Rights
With or without marriage, second-parent adoption is the gold standard for securing rights between a co-parent and a child for the very reason at issue in V.L.’s case: adoption decrees are embodied in a court judgment that is entitled to the most exacting form of full faith and credit—absolute deference by courts of a sister state.
That adoption is more secure than the alternative pathways to parentage for lesbian co-parents was made eminently clear in many cases. Marital presumptions are rebuttable, may or may not extend to same-sex spouses, and may or may not be recognized in another state. Co-parents may face the same problem with de facto parentage and parenting agreement claims—a biological mother can just move to a state that doesn’t recognize such claims and thereby avoid sharing the child. But adoption decrees travel unimpeded.
That effect was made clear in an early lesbian co-parent case, Embry v. Ryan. There, the lesbian co-parent adopted her partner’s biological daughter, and the couple raised her together from birth. When the adult relationship dissolved, however, the biological mother moved to Florida, a state that, at the time, refused to allow any gay or lesbian individual to adopt a child. When the co-parent sued to enforce the adoption order in a Florida court, the biological mother attempted to raise the Florida ban in defense. But even Florida, with a long Anita-Bryant history of keeping gay men and lesbians away from children, had to give effect to the Washington state adoption decree. There is no “public policy” exception to the obligation to give effect to judgments of sister states.
And also because of this widely accepted principle about the portability of adoption decrees, co-parents who are protected by the marital presumption, de facto parentage, or parenting agreements nonetheless have sometimes sought adoption decrees solely to ensure that the parent-child relationship is secure across state lines. A court in New York, in In re Sebastian, agreed to allow a co-parent, already protected by New York’s marital presumption, to petition for a second-parent adoption. Although New York adoption law did not seem to allow someone who is already a legal parent to petition for adoption, the judge allowed it, noting the importance of the case with respect to “how the parent/child relationship can be protected in a transient, cross-border society.”
The Brief, and Correct, Ruling in V.L. v. E.L.
Court watchers had noted that this case, in which V.L. had petitioned for Supreme Court review, was listed for “conference” (meaning the justices would discuss and likely decide whether to take the case) on one date and then re-listed for another day a week later. This is often a sign that the Court is inclined to review the case—and will issue a grant of “certiorari” on the second date. But on the second day in this case, the Court issued a final ruling in the case without ever agreeing to review the case, asking the parties to submit briefs on the relevant legal issues, or listening to an oral argument. That’s how wrong the ruling of the Alabama Supreme Court was.
The Court gave a clear and concise explanation for its holding that Alabama courts had to give effect to the adoption decree from Georgia, which means that V.L. is a legal parent of E.L.’s children and has the same rights to custody and visitation as the biological mother has.
The Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” What this is means is that valid judgments from the court of any state are valid in every state. This has to be the case in a country made up of independent states. The adjective the Supreme Court has used to describe the requirement of full faith and credit with respect to court judgments is “exacting.” In other words, states do not have discretion to pick and choose among judgments they like and judgments they do not like. The obligation of full faith and credit “precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.” The only condition is that the court must have had “adjudicatory authority over the subject matter and persons governed by the judgment” (jurisdiction) in order for it to qualify “for recognition throughout the land.”
E.L. argued that the Georgia court did not have jurisdiction to grant a second-parent adoption because the state adoption statute provides that “a child who has any living parent or guardian may be adopted by a third party . . . only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.” When the court allowed V.L. to adopt the children, it did not first require E.L. to surrender her parental rights. Second-parent adoptions have often been granted in states with similar statutes because courts have analogized to the step-parent exception, which allows the natural parent to retain rights and the adoptive parent—in a relationship with the natural parent—to obtain rights. In any event, whether the court correctly applied Georgia law is not the point, as a mistake of law would not be a basis for Alabama’s refusal to give full faith and credit to the adoption judgment. Thus E.L. argued that this provision means that courts have jurisdiction to grant adoptions only when the natural parents have surrendered their rights.
The Supreme Court, rightfully, did not agree with E.L. It noted another provision that gave Georgia Superior Court “exclusive jurisdiction in all matters of adoption,” making no distinction between types of adoption. And the statute cited by E.L., in contrast, made no mention of jurisdiction. Moreover, the Supreme Court noted, that if a judgment appears on its face to come from a court with competent jurisdiction, such jurisdiction “is to be presumed unless disproved.” It found nothing in E.L.’s argument to disprove jurisdiction. No Georgia court had ever described the adoption statute as “jurisdictional.” And there was nothing to suggest that the decision of the Georgia court to grant the adoption was a decision about whether to exercise jurisdiction versus a decision whether to grant relief in a particular case. The Court did not buy E.L.’s argument that all requirements that are “mandatory” in nature are jurisdictional. That would have been a rather large hole in the full faith and credit doctrine, an exception that would swallow the rule. And it does not, the Supreme Court noted, “comport . . . with common sense.”
Although the Supreme Court acknowledged that jurisdictional questions can sometimes be difficult to distinguish from merits questions, this case presented no such difficulty. As the Court concluded, the “Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.”
Without wasting time on merits briefs, amici briefs, or oral argument, another mole has been whacked. When will the game be over?
The game is likely to go on for a while longer.