Four lesbian couples pressed a federal judge on Friday to overturn Mississippi's last-in-the-nation ban on allowing same-sex couples to adopt, but lawyers for the state argued the lawsuit should be tossed out.
Plaintiffs want U.S. District Judge Daniel Jordan III to issue a preliminary injunction allowing members of two couples who don't have parental rights to adopt their spouse's children immediately. They say that after the U.S. Supreme Court's decision legalizing same-sex marriage, there's no need to wait for a full trial.
Roberta Kaplan, arguing for the plaintiffs, said Mississippi is still telling same-sex couples that "their marriages and families are not as good as the marriages and families of straight couples. And that's directly contrary to what the Supreme Court said."
Mississippi officials, though, argue the lawsuit is defective because the plaintiffs are suing state officials who have no power to order an adoption. And after the plaintiffs then sued four chancery judges who can order adoptions, the state argued that it's improper for a federal court judge to issue a blanket order to a state judge when the plaintiffs haven't even filed adoption actions.
"These plaintiffs and everybody else should be required to go to state court first," said Justin Matheny, representing Attorney General Jim Hood. He also implied that the ban might not apply to one person who wants to adopt the child of their spouse, saying "there is an ambiguity about how it works," and said anyone rejected by a chancery judge could appeal to the Mississippi Supreme Court.
Mississippi officials have not given up their defense of the law, with Matheny saying Friday that "I cannot and do not concede that the statute is unconstitutional." However, later in the hearing, he was challenged by Jordan, with the judge saying his reading of the U.S. Supreme Court decision encompassed not only the right to marry, but connected benefits like adoption. Matheny said that if that were true "then I don't have a leg to stand on as far as success on the merits." However, he said his arguments over the plaintiffs lacking standing to sue were still valid.
The plaintiffs put on witnesses who testified about their desire for adoption, including Donna Phillips, a Rankin County resident who wants her wife Jan Smith to share legal custody of Phillips' daughter by birth, now 8.
Phillips said she feared her parents would seek custody if she died, causing her to leave the Army National Guard in 2009 to avoid further deployments abroad. Pausing to wipe away tears, Phillips said her parents had not spoken to her since she filed the lawsuit.
"There's just a constant worry that if anything were to happen to me, Jan would not have the ability to make decisions" for the child, she testified.
The couple earlier tried to arrange an adoption in Florida, but said adoption agencies in Mississippi refused to conduct a required home study, citing fears that the Department of Human Services would retaliate against them. After the Supreme Court ruling this summer, the couple had a lawyer inquire if an unnamed Rankin County chancery judge would approve an adoption in light of the changed law. The lawyer reported that the judge's answer was "Not 'no,' but 'hell no.' "
Matheny admitted that the plaintiffs' stories have "emotional appeal" and "emotional impact." But he said the proper path is for Phillips to go to chancery court and appeal if she loses.