Update on Same-Sex Sup. Ct. Decision Issued Today
Nathan Greene
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By Emily Geiger
I wasn’t sure I quite understood all that’s in this decision, so I had to talk to an attorney friend of mine and made him read it too. Here’s what we came up with.
As background, it is important to know that the trial court in the case of Schott v. Schott had ruled that it could not decide on the issue of custody and visitation for children of a separating lesbian couple because it thought that the adoption by the same-sex partner of the other same-sex partner’s children was invalid under Iowa law. Generally, adoption severs ties with both biological (or legal) parents unless the adoption can be considered a step-parent adoption, for which there are special statutory definitions and provisions that allow one biological (or legal) parent to retain his or her rights to the child in question when that legal parent’s SPOUSE is the person seeking to adopt the child.
Essentially, the Supreme Court said that trial court was wrong to question the other trial court that approved the adoption. The Supreme Court said that the adoption was valid because Iowa trial courts are courts of general jurisdiction that can decide adoption cases (even if they are wrongly decided). It went on to say that the trial court in this case was also wrong to say that it did not have jurisdiction to decide custody and visitation now because Iowa trial courts are courts of general jurisdiction with the power to decide custody and visitation cases. Basically, since the adoption represented a final decree of a court, that final decree could not be disturbed by another court.
When I read this, I though for sure the Supreme Court was going to say that adoption by a gay partner of another gay partner’s child was going to be allowed in Iowa. But then, the decision actually says, “We need not decide whether second parent adoptions [the gay equivalent to step-parent adoptions] are permissible in Iowa for purposes of this appeal. Even if the district court who issued the adoption decrees misinterpreted Iowa’s adoption statute, the adoptions are not void.”
So basically, the Supreme Court copped out of deciding whether or not these “second parent” (i.e. gay step-parent) adoptions are legal in Iowa. At first, you might think that’s a good thing if you are of the mindset that this would be another step on the road to gay marriage. At least the Court didn’t openly validate such adoptions. But it also did not prohibit them, which means that trial courts can go ahead and issue these adoptions. So if you pick the right judge in the right county, you can get your gay step-parent adoption, even though this violates the Iowa Code sections on adoption. And because the Supreme Court said that these adoptions can’t be challenged by outside parties in separate court actions, it will be very hard to challenge the practice of certain judges granting these “second parent” adoptions.
So what does all this mean in the grand scheme of things as it relates to the gay marriage debate?
Well, this decision was not as enlightening as I thought it might be. The one thing I think is telling is the fact that the Supreme Court could have openly ratified or nullified these adoptions, and specifically chose not to do so. I think the justices are playing coy, knowing that they might tip their hand on the pending case challenging the Iowa Defense of Marriage Act. If they in any way appeared to be condoning any aspect of gay marriage in today’s decision, that would fuel the fire of those seeking a marriage amendment and spur Republican legislators to try to get the first legislative votes in the amendment process completed this legislative session.
When you look beneath the surface and examine the VERY CAREFUL wording used, I get suspicious. With this decision, the Court allows gay step-parent adoptions to take place in Iowa, and they provide enough ambiguity as to their leanings on gay marriage issues so as to not stoke the flames of the anti-gay marriage crowd.
That paves the way for Dems to push their “wait and see” arguments for postponing the initiation of the amendment process until after this legislative session concludes. Then the Court can issue their decision on the Defense of Marriage Act once all the legislators are gone, and it will be too late to do anything about it this year. Assuming they’ll agree with Judge Hansen, because of the length of the amendment process, that means we’ll have gay marriage taking place and becoming part of the social fabric of our state for at least three years before we can do anything about it.
Just remember what your mom told you… you can’t un-ring a bell. Once we have gay marriage in this state, I’m afraid it will be here to stay.
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