June 14, 2012
By Scottie Thomaston
The ACLU has filed a federal lawsuit, Fisher-Borne v. Smith, attempting to ask the courts to overturn North Carolina’s ban on second-parent adoption. A second-parent adoption is one in which a child is adopted by a second parent in the home, and that person isn’t married to the child’s legal parent. In that situation, neither parent loses any rights and the adoption can provide stability for the child. In practice, second-parent adoption is helpful to many gay and lesbian couples living together with children. Both parents need to be able to make medical decisions for their child and this type of adoption helps facilitate that.
North Carolina is one of a handful of states that still ban second-parent adoption. The ACLU is challenging the ban under 42 USC § 1983. That law is a civil rights law that allows people to sue state actors in a civil setting, to seek monetary damages for violations of civil rights. It reads:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The complaint details the ways in which the state of North Carolina is violating the rights of North Carolinians and specifically these gay and lesbian plaintiffs in the state:
Children who are prevented from having such a legally recognized relationship with both parents suffer numerous deprivations as a result, including exclusion from private health insurance benefits, public health benefits, veterans benefits, disability benefits, social security benefits, life insurance benefits, and workers’ compensation, as well as uncertainty about their ability to continue their relationship with their second parent if something should happen to their legal parent.
Arguing that “[t]here is no basis for the state automatically and categorically to reject any petition for second parent adoption by gay or lesbian parents” and that the ban “serves no compelling or even legitimate government purpose or interest”, plaintiffs say that the challenge should be reviewed under a heightened form of judicial scrutiny. Their reasons for seeking this type of judicial review are closely aligned with the factors the Supreme Court has laid out in cases where they have applied heightened scrutiny:
North Carolina’s categorical ban on second parent adoption perpetuates historical discrimination against gay and lesbian persons whose sexual orientation is immutable and a core part of their identity. In the twentieth century and continuing to the present, lesbians and gay men have experienced a history of unequal treatment in the United States because of their sexual orientation. In the twentieth century and continuing to the present, lesbians and gay men have been subject to discrimination in the United States because of their sexual orientation. In the twentieth century and continuing to the present, lesbians and gay men have been subject to discrimination in the United States because of perceived stereotypes associated with being lesbian or gay. In the twentieth century and continuing to the present, lesbians and gay men have been subject to violence in the United States because of their sexual orientation. In the twentieth century and continuing to the present, lesbians and gay men have been harassed in the United States because of their sexual orientation. A person’s sexual orientation — heterosexual or homosexual — bears no relation to his or her ability to participate in or contribute to society.