While Historic for LGBT Community, Recent Supreme Court Rulings Likely Have Little Impact on Same-Sex Couples Seeking to Adopt, Says Washington Adoption Lawyer
Seattle, WA (PRWEB) July 06, 2013 -- The U.S. Supreme Court ruled in U.S. v. Windsor (570 U.S. ___ (2013)) in late June that a portion of the Defense of Marriage Act that bans the federal government from recognizing same-sex marriages was unconstitutional. The Court simultaneously ruled in Hollingsworth v. Perry (570 U.S. ___ (2013)) that proponents of a state ban on same sex marriage in California lacked standing to defend the law, the resulting effect being that marriage equality may resume in California. However, despite the dual breakthroughs in LGBT rights, the rulings will likely have little impact on legal matters for same-sex couples looking to adopt, said Joyce Schwensen, Washington adoption lawyer.
"While the jubilation over the decisions was justified, it's unlikely that the rulings will have much practical effect on adoption proceedings," Schwensen said. "Adoption is largely governed by state law, and Section 3 of DOMA impacts only federal benefits."
In Windsor, the Court ruled that Section 3 of the Defense of Marriage Act, which defines marriage as between a man and a woman for federal purposes, violated the Equal Protection Clause. The ruling has a profound effect on same-sex married couples for immigration, taxation, Social Security and other federal purposes — for instance, a noncitizen spouse of a U.S. citizen or permanent resident is expected to be able to seek a green card as a spouse, although he or she could not do so under DOMA.
However, the effect on adoption law will be minimal because adoption is primarily a state issue, Schwensen said. In Washington, marriage equality passed in 2012, and same-sex married couples are treated equally under the law. Moreover, in Washington unmarried couples are allowed to adopt, whether they be same sex or opposite sex couples, said Schwensen. However, adoption often involves a nationwide search, and same sex married couples who find a baby or child in a state that does not recognize their marriage can sometimes face legal hurdles in the process. Section 2 of DOMA, a provision that allows states to disregard marriages between people of the same sex performed in other jurisdictions, was left intact by the ruling — it was not litigated in the Windsor case. Therefore, a same-sex couple legally married in Seattle adopting a child in a state that doesn’t recognize their marriage, would still not be considered to be married in the state of the child’s birth. As a result they might not be allowed to adopt the child together as a couple, Schwensen said.
After the decision in Windsor, same sex couples are still faced with an unusual dilemma when seeking to adopt, Schwensen said. They can limit their search for a child to those states that will recognize their marriage or at least allow them to adopt as an “unmarried couple” under that state’s law, or they may choose to delay marriage in order to be able to adopt from additional states that will allow single individuals to adopt, but do not recognize same sex marriages or allow unmarried couples to adopt, she continued. The first option is the only choice available for same sex couples that are already married, and this has not been changed by the Windsor decision, Schwensen said.
As more states recognize same sex marriages, it does become easier for same sex married couples to adopt children, said Schwensen. But the Windsor decision has not made adoption by same sex married couple as straightforward as adoption by opposite sex married couples, because of the interstate nature of many adoptions. But, the ruling represents progress for GLBT families, which has a positive net effect, she continued.
Relevant state issues could have been addressed in Hollingsworth. However, currently the ruling is viewed as only affecting California. There may be further proceedings in the Hollingsworth case, and if the Ninth Circuit Court of Appeals issues any decisions in the case, those could affect all of the states in the Ninth Circuit.
The Windsor case might have an effect on certain couples seeking the Federal Adoption Tax Credit, which can be claimed for some adoption-related expenses, said Schwensen.
"While neither ruling has a significant direct impact on the legal issues surrounding adoption, everything that moves society toward acceptance of same sex marriage contributes toward the ability of same-sex couples to adopt, and the decisions by the Supreme Court certainly adds legitimacy to same-sex marriages," said the Washington adoption lawyer for same-sex couples.
The Court did make an important ruling that pertains directly to adoption law in Adoptive Couple v. Baby Girl (570 U.S. ___ (2013)). The case involves the Indian Child Welfare Act, a federal law passed in 1978 to protect Native American families from agencies that sought to remove children from their homes.
In the case, a Cherokee biological father claimed that his parental rights could not be involuntarily terminated to allow his child to be adopted because the procedures of Indian Child Welfare Act had not been followed. Although the biological father had initially consented to adoption of his child and had failed to support the child’s mother during the pregnancy or to support the child after her birth, the biological father argued that more was required to terminate his parental rights because of his Cherokee heritage. In a 5-4 opinion, the Court ruled that the ICWA did not apply because the father did not have legal or physical custody of the child prior to the child being placed with the adoptive family, and therefore the adoption of the child did not constituted the “removal” of an Indian child from an Indian family.
The ruling could have implications for Washington adopting parents, but the impact is difficult to judge right now, Schwensen said. Washington has a state Indian Child Welfare Act, and enforcement of that state law is not necessarily governed by the U.S. Supreme Court decision in Adoptive Couple v. Baby Girl because the decision in the case was based on an interpretation of the federal ICWA, rather than on constitutional grounds.
Joyce Schwensen, of the Law Offices of Joyce S. Schwensen, is a Washington adoption lawyer who assists both adoptive parents and birth parents. She also practices real estate law, business law and wills and probate.
Joyce Schwensen, The Law Offices of Joyce S. Schwensen, http://www.schwensenlaw.com/, (206) 367-1065, [email protected]
Share this article