On Wednesday Aug. 12, civil rights attorneys filed a complaint in federal court against the gay adoption ban in Mississippi, the only state that bars same-sex couples from adopting children. Spearheaded by LGBTQ rights super-lawyer Roberta Kaplan—who took down the federal same-sex marriage ban in 2013—the complaint alleges that the ban violates both the Equal Protection and Due Process Clauses of the U.S. Constitution. Mississippi has not yet stated whether it will defend its law.
If the state does back its ban in court, it’s in for some rough sledding. In United States v. Windsor, the Supreme Court strongly implied that disadvantaging children of same-sex parents violates the Constitution. The federal gay marriage ban, Justice Anthony Kennedy wrote, “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” This humiliation, Kennedy implied, is a large part of why the law “violates basic due process and equal protection principles.”
Kennedy returned to this point in June’s Obergefell v. Hodges, linking the right to marry and the right to raise children even more explicitly. “Without the recognition, stability, and predictability marriage offers,” he wrote, same-sex couples’ children
suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
So, Kennedy concluded, the right to “bring up children” is, as a component of the right to marry, “a central part of the liberty protected by the Due Process Clause.”
Against these powerful precedents, Mississippi has essentially no defense. Its adoption ban’s history is plainly homophobic. The state supreme court decided in 1999 that gay people are intrinsically “unfit for custody” of children. (In doing so, it awarded custody of a child to his straight mother, who lived with an alcoholic, drug-addicted domestic abuser—instead of to his loving, well-educated gay father.) But several justices dissented, spooking the legislature into passing a law the next year that formally banned gay adoption. (The governor later said he regretted signing the bill.)
Against this backdrop of raw animus, Kaplan’s suit should be an easy victory. The only real question is whether Mississippi will try to defend its doomed law. On Wednesday, I asked Kaplan whether she expected a drawn-out court battle.
“Certainly there are no credible arguments that can be made” to support the ban, she told me. “Obergefell and Windsor were about the rights of gay people to parent and have children—about the integrity of their own families. I don’t know what arguments [Mississippi] will be able to make” to dispute those holdings.
Kaplan also noted that the same-sex couples she worked with in fighting Mississippi’s ban on same-sex marriage all saw adoption as “the real issue.”
“They wanted to be able to adopt their own kids,” she said. “We decided for strategic reasons that we would first challenge the inability of gay couples to get married.” With that fight complete, it’s time to shift focus. “After Obergefell,” Kaplan said, “it became clear to us that it was time to get rid of this law as well.”