A simple question that raises complicated constitutional issues p3

The case we have been discussing, V.L. v E.L., has been on the U.S. Supreme Court’s agenda since the end of December. The court is not ready to hear arguments, though. The parties — and the rest of us — are waiting to find out if the court will hear the case at all. We had hoped to have an update by now, but we will have to continue to be patient.

The case is not strictly about whether same-sex couples can adopt. One of the women gave birth to the three children at the center of the visitation dispute, while the other acted as (and was accepted as) the children’s parent.

Because the couple could not marry in their home state of Alabama or in Georgia, the state in which the adoption took place, the adoption cannot be treated the same way that a step-parent adoption is. Nor can V.L. claim to be a “putative” mother to the children, because she clearly did not give birth to them. Had she been a man, she could have claimed paternity and had some standing when it came to visitation. And, had she been a man and the couple had been married, Alabama law — and Illinois law, for that matter — would have recognized her as their father.

When V.L. adopted the children, E.L. executed a “parental consent to adoption,” stating that she was not giving up her parental rights at all by agreeing that V.L. could adopt the children. Unfortunately, the parental consent did not include a provision that addressed custody or visitation in the event the couple broke up. When that happened, then, and E.L. did not want V.L. to have access to the children, the Alabama court was left to evaluate the case based on the agreement and state law.

The trial court agreed with V.L., but the case got even more complicated on appeal.

Instead of looking at the parenting question, the appellate court and, later, the Alabama Supreme Court, looked at the adoption itself. The two courts agreed that the adoption itself was flawed: The adoption violated Georgia state law and, so, was invalid. No adoption, no visitation issue.

The question presented to SCOTUS, then, is not about same-sex marriage or same-sex adoption, or even adoption at all. The question is whether one state can refuse to recognize a judgment issued by a court in another state. The Constitution’s full faith and credit clause guarantees that states recognize judgments made in other states.

If the court agrees to hear the case, the arguments should be interesting. The court, after all, is under no obligation to answer the question presented. The court may decide that the issue the parties want addressed is not the core issue of the case — just as the Alabama Supreme Court did.

We’ll keep an eye on the case.


Newsroom America, “U. of I. News: Gay adoption: A Minute With… U. of I. expert Sara R. Benson,” Jan. 5, 2016

SCOTUS Blog, “Opening a new phase of law for gays?” Lyle Denniston, Nov. 17, 2015

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