Wednesday, April 9, 2014

State Sues Judge In Gay Marriage Adoption Case

Posted By on April 9, 2014, 5:07 PM

The state of Utah's attempts to blot out any rights that same-sex couples garnered through marriage took a new turn on Tuesday when the Attorney General's Office filed suit against a Third District Court judge who granted a second parent adoption for a married gay couple.

Although state attorneys have made clear they believe judges should wait to process any adoptions by same-sex couples until after the larger debate on the legality of gay marriage filters through higher courts, some judges have continued to process these adoptions.---

These judges have taken the stance that the roughly 1,200 marriages that Utah granted to same-sex couples during a brief window, and the rights guaranteed by them, cannot simply be voided while the state runs through its appeals.

Laura Milliken Gray, an attorney for one of the couples whose adoption is now being challenged by the state, says by suing these judges, Utah is attempting once and for all to “crush” her clients.

“This is just like they are stomping my clients with their foot, and now they're grinding them into the earth, is how it feels,” Gray said.

In the petition filed April 8, the AG asks the Utah Supreme Court to provide “emergency extraordinary relief” in an adoption that was processed in February by a Third District Court judge.

Once an adoption is granted by a judge, the next step is to change the parent's names on the child's birth certificate.

This process, documented in The Salt Lake Tribune, played out in dramatic fashion last week. Two female parents, whose adoption had been blessed by 3rd District Court Judge Andrew Stone, went to the Utah Office of Vital Records and Statistics to change their child's birth certificate. According to the Tribune story, employees asked to see the couple's marriage certificate, and an hours-long standoff ensued,ending when representatives from the AG's office arrived and explained that they would look into the matter.The parents left without the amended birth certificate.

The AG's petition states that if the Department of Public Safety declines to change birth certificates in cases where judges have issued court orders to do so, the department could be held in contempt of court. On the other side of the pendulum is the possibility that DPS alters the birth certificates, effectively breaking state law.

“The trial court abused its discretion in ordering the Department to change the information on [redacted's] birth certificate,” the petition says. “The Order authorizes the Department to violate the plain text of the Utah Constitution and Utah Law prohibiting recognition of same-sex marriage, which are valid and in force because of the Supreme Court's Stay.”

In February, the AG's office filed a memorandum, urging judges to halt any same-sex second-parent adoption proceedings until its appeals on the larger case concluded.

This clarification, though, was little more than an echo of an earlier admonishment from Gov. Gary Herbert, who ordered all state agencies to halt granting rights typical of marriage to married same-sex couples.

Judges, though, have a level of independence lacking at the Department of Motor Vehicles, for example. And, just as they did then, and continued to do after the AG's office issued its memorandum, some judges—apparently believing the state had little right to take back the marriages itself had granted—continued to process the adoptions.

This stance, Gray says, is nothing short of heroic. And while the decision to treat these same-sex couples no different than heterosexual couples married during the same time frame might pose risks to these judge's careers, Gray says history will vindicate them.

“I believe they're on the right side of history and history will bear that out just like Judge Shelby,” Gray said. “Judge Shelby will be a hero when these books are written; these judges will too.”

Judge Robert Shelby, a federal district judge, ruled on Dec. 20, 2013, that Utah's ban on same-sex marriage was unconstitutional.The state's failure to seek an imminent stay on the ruling resulted in 17 days of legal gay marriage in Utah.The U.S. Supreme Court granted the state's request for a stay on Jan. 6. Oral arguments in the state's appeal to the 10th Circuit Court of Appeals, in Denver, are scheduled to begin Thursday.

Utah's efforts so far have seemingly achieved little besides showing the nation what it looks like when a state attempts to single out a given demographic and retroactively strip rights that would be granted without conditions to a different demographic.

Caught in the middle are married couples and families who, not unlike many of their heterosexual counterparts, would like to both be considered the legal parents of their children—something only a judge in a second-parent adoption proceeding may grant.

Now, though, Utah is attempting to halt court orders that were issued based on the marriages that the state—if only for a fleeting moment—blessed.

“It's turned it into an executive versus judicial branch struggle,” Gray said. “It leaves my clients just completely devastated and angry, and they feel like they are really getting bullied now.”

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Colby Frazier

Colby Frazier

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