The Power Of Love
In the news today:
A Mobile woman raising a baby boy with the child’s mother wants to adopt him as a second parent, a legal step of significance in a state that just passed a constitutional amendment banning gay marriages.
Cari Searcy’s partner, Kim McKeand, gave birth to the baby boy in December with the aid of a donor. Searcy then sought to become the adoptive parent of the child, who bears her last name. Adoption would give Searcy rights to make medical decisions for the child as well as securing the sense of family in their home.
But Searcy’s application was denied in probate court May 3. McKeand said the judge ruled against adoption because Alabama does not recognize same-sex marriages. She said their case now is going to the Alabama Court of Civil Appeals.
I probably know more about tax law than I do about family law, but with that caveat, I’m going to give you my two cents anyway: This couple is going to lose.
Some states, like Florida, have statutes explicitly prohibiting adoption by gay people. In Alabama, we have Roy Moore’s infamous concurrence in a case where a gay mother sought custody of her own child:
Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated. Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society — the family.
The law of Alabama is not only clear in its condemning such conduct, but the courts of this State have consistently held that exposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected. . . .
The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.
Alabama law, though, has not wholly adopted Roy’s religion. Rather, Alabama’s adoption statute states:
Any adult person or husband and wife jointly who are adults may petition the court to adopt a minor.
Now, these two, thanks to the “we hate fags” amendment, are not a “husband and wife jointly.” So the question will be “what does ‘any adult person’ mean?” The obvious answer is any person. Ms. Searcy is a person, therefore Ms. Searcy ought to be allowed to adopt the child.
The answer given by elected judges in a state that just constitutionalized its hatred for gay people will go something like this. The legislature, by setting forth two categories of potential adoptors – “any person” and “husband and wife” – meant to limit adoption by couples to adoption by married couples. Further proof of this is that other sections of the legislature set forth the criteria for a step-parent’s adoption of a step-child. The legislature did not intend for individuals, whether gay or straight, to adopt the child of their unmarried partner. Here, the prospective adoptive parent is not married to the natural parent. Hence, the adoption is not allowed.
Nor will there be a successful constitutional challenge. The Eleventh Circuit upheld Florida’s explicit gay bashing, so there is no way they would reject Alabama’s subtle bigotry.
In short, whether or not this child will thrive under these parents is irrelevant. Whether or not Ms. Searcy would be a good parent is irrelevant. All that matters is that Ms. Searcy and Ms. Mckeand love each other. Because of that love, Ms. Searcy cannot adopt the child who bears her name.