Tom Daley
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Mississippi Couples Seek to Knock Down 'Roadblocks' to Adoption 

Smith and Phillips

The state of Mississippi is trying to put up roadblocks to a lawsuit challenging its ban on adoption by same-sex couples, but according to a new court filing by the plaintiffs’ attorneys, the “supposed ‘roadblocks’ do not even amount to potholes or flat tires, much less a street closure.”

The plaintiffs — four same-sex couples and two organizations, the Campaign for Southern Equality and the Family Equality Council — have asked a federal court to issue a preliminary injunction, preventing the state from enforcing the ban, which was enacted in 2002. The defendants, that is, Mississippi state officials, want the court to dismiss the case. Judge Daniel Porter Jordan III is scheduled to hear arguments from both sides November 6 in U.S. District Court in Mississippi.

The plaintiffs, who filed their suit in August, Tuesday filed documents, provided to The Advocate, countering the state’s argument that they lack standing to challenge the ban and are unlikely to succeed in their case, while also tearing apart a much-criticized study that has been used against gay parents. Their lead counsel is Roberta Kaplan, who has argued many marriage equality cases, including Windsor v. U.S., which resulted in the 2013 Supreme Court decision gutting the federal Defense of Marriage Act. 

The state contends that the couples lack standing to bring the suit because they have not actually attempted to go through the legal process of adopting. One new filing by the plaintiffs’ attorneys counters, “As the targets of the Mississippi Adoption Ban, they have clearly suffered an ‘injury in fact’ that is more than sufficient for standing in this type of equal protection challenge and is not negated by the fact that Plaintiffs have not taken the expensive, time-consuming, and futile step of filing for adoption.” (Plaintiffs Janet Smith and Donna Phillips are pictured above with their daughter, Hannah Marie Phillips; under current law, Smith is not recognized as a legal parent.) 

The state also asserts that the court would be overextending this year’s Supreme Court marriage equality decision, Obergefell v. Hodges, to find that it also rendered adoption bans unconstitutional. This is a “wholly meritless position,” according to Kaplan and her team, who argue that equal treatment of same-sex couples extends to parenting rights. This position, the plaintiffs’ attorneys say, reads this decision as well as Windsor “as if gay couples were entitled to equal protection of the laws only up to the point of getting married, but not with respect to having children or anything else.”

Finally, Kaplan’s team filed an affidavit by Brian Powell, an Indiana University sociology professor, challenging the state’s assertion that “dual-gender parenting is preferable and should be encouraged where possible by prohibiting adoption by same-gender couples.” The overwhelming body of social science research, he writes, finds little difference in the well-being of people raised by same-sex versus different-sex couples.

There are so many studies that have reached this conclusion, Powell continues, “that it is not undercut by the very few outliers” that come to a different one. The one most often cited comes from University of Texas professor Mark Regnerus, which Powell says misclassifies many respondents as having been raised by a gay father or lesbian mother. Previous criticism of the study has noted that Regnerus classified people as gay or lesbian based on even fleeting romantic relationships with a member of the same sex. Also, critics found that many of the families classified as headed by gays or lesbians were single-parent households, and they were compared to famlies headed by long-term opposite-sex couples. 

Powell adds that Regnerus’s study included respondents who never lived with the purportedly gay or lesbian parent, or lived with them only briefly, and respondents who provided “highly implausible” answers. Among the latter, Powell writes, is “a 25-year old man who reported that his father had a romantic relationship with another man, but also reported that he was 7-feet 8-inches tall, weighed 88 pounds, was married, and had 8 children.”

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