Liquid Law 

Some Utah judges granted adoptions to same-sex couples without state's OK

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During the 17 days after Dec. 20, 2013, when U.S. District Court Judge Robert J. Shelby drove a spike through Utah's constitutional amendment that banned same-sex marriage, nearly 1,300 same-sex couples tied the knot in Utah, and an unknown number of families were made whole through adoption.

Until Shelby made his ruling, it was impossible for same-sex parents to both be legally recognized parents of their children—a poignant prohibition that equal-rights advocates say struck at the heart of how same-sex marriage bans harmed families.

But when the U.S. Supreme Court stepped in to halt Shelby's ruling, the state of Utah ceased granting same-sex couples any of the rights guaranteed by their Utah marriage licenses, including name changes and transfer of insurance benefits.

There was one place in Utah, however, where the fingers of Gov. Gary Herbert and Attorney General Sean Reyes could not easily invade: state courts.

And in 3rd District Court—far from the spotlights of the 10th Circuit Court of Appeals in Denver, and a world away from the hallowed ground of the U.S. Supreme Court in Washington, D.C.—at least three judges continued to process second-parent adoptions for married same-sex couples, despite the state's directive to halt granting any rights to these couples.

At the time, adoption attorneys and couples lucky enough to see their adoptions granted were reluctant to speak on the record, fearful that drawing attention to the judges could ruin their careers and place them front & center in a toxic debate.

These months were also demonstrative of a time in the state's history when the law was not as concrete as one might assume. While some parents were lucky enough to at long last become legally recognized as such by the state, other hopeful parents, either because of bad timing or the judge they drew, were not allowed to adopt their children.

"It's a silly situation if you think about it practically," says Shane Marx, an attorney who represented many same-sex couples in adoption cases. "If you were able to get before the court before that stay was granted, suddenly you would have parental rights for your child. But ... scheduling or calendaring conflicts with the court [could] prevent you from being able to secure rights to your child."

Jane Hoffman is one mother who is breathing easy now that she's been able to adopt her children.

Because Hoffman's wife, Emily Sutherland, gave birth to their sons, Hoffman wasn't considered an official parent. When their children were born, Hoffman says, she and Sutherland did everything they could to ensure that they would both be recognized as parents. They paid lawyers to draft paperwork, and the children took Hoffman's name, an effort, she says, to show the "intent" that she wanted to be a parent, even if the state wouldn't allow her to marry her partner.

"We'd been at risk for as long as we'd had children," Hoffman says. "We didn't consider our family safe."

Hoffman believes that her and Sutherland's adoption was one of the few—if not the only one—to make it through the entire legal process before the state forced the Office of Vital Records & Statistics to stop issuing new birth certificates to same-sex parents.

And it is in that office where the judges who were quietly granting adoptions became the center of a fiery, though brief, lawsuit.

In April, Marx went to the Office of Vital Records & Statistics to obtain a new birth certificate for a family he represented. In hand, Marx had the court order granting the adoption, signed by 3rd District Judge Andrew Stone.

When Marx asked for the birth certificate, officials asked him to provide a certified copy of the couples' marriage certificate, an unusual request. Marx refused to leave the building, and a four-hour ordeal culminated with an assistant attorney general showing up.

Shortly after Marx left, the attorney general sued three 3rd District judges: Stone, as well as Elizabeth A. Hruby-Mills and L.A. Dever.

The lawsuit, and the standoff at the Office of Vital Records & Statistics, had been simmering for some time. In a pair of adoption cases filed in January, Marx says, Stone required that the attorney general be notified before the adoption could be processed.

Marx did as he was told, notifying the attorney general. But rather than stand in court and argue its case, the state declined to directly intervene. After 70 days had come and gone, Marx says, Stone, whom a court spokesman says can't comment on his ruling, granted the adoptions.

"He said it's not a judge's job to look for reasons to defeat rights of people," Marx recalls of Stone's ruling. "If the state wants to put forth those arguments, they need to come before the court and make those arguments, but they haven't done that."

After being sued by the state, Stone, through the 3rd District Court's attorney, filed a response pointing out that the attorney general had been notified and asked to address the constitutional questions present in the adoption case, but "failed" to do so.

The judge's response also says Stone believed that if legally married parents were willing to risk the possibility of having their progress undone down the road, they should be allowed to do so. On the other hand, the risk for the state in these cases, Stone contended, was "minimal."

"A birth certificate that is amended can be amended again," the statement says. "The restoration of rights that should have been recognized as vested is a bit harder to remedy."

Laura Milliken Gray, an attorney who represents same-sex couples seeking adoptions, says that Stone and the two other judges who were sued, and any others who may have allowed these adoptions to move forward, are "heroes."

"I just think they looked at the law and maybe looked into their hearts ... at some point you just have to draw your line as a human and let the chips fall," Gray says.

For Hoffman, being a good parent to her two sons has always been paramount. She became the stay-at-home mom who takes her children to school and doctor's appointments. But prior to the adoption, the terrible reality that her children could disappear from her never strayed far from her mind.

For dispatching this thought, and making her family whole, Hoffman says, she gives thanks to the judges who stood up to the state and the Attorney General's Office.

"It's kind of nice to have the story out there now, to say that there were judges who were willing to follow the law and do their jobs and to stand up," she says.

And like Shelby, who came under fire as an "activist" judge following his Dec. 20 ruling, Gray says, all of the state judges roped into court for granting adoptions were on the right side of history.

"Now [Shelby] is completely vindicated and he will go down in history as a hero to most," Gray says. "In my opinion, these judges who granted these adoptions are also heroes."

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