Mississippi Is Actually Defending Its Comically Unconstitutional Gay Adoption Ban

Gov. Phil Bryant (left) during a meeting of the National Governors Association, Feb. 23, 2015. 

Photo by Jim Watson/AFP/Getty Images

When I last wrote about Mississippi’s gay adoption ban, I naively speculated that the state might decline to defend its own law in court. After all, Mississippi is the only state in the country that still bars same-sex couples from fostering or adopting children—and, more important, the Supreme Court’s Obergefell decision clearly outlawed such discriminatory legislation. On Friday, however, I was proved a fool: Mississippi Gov. Phil Bryant and Attorney General Jim Hood have elected to defend their ban against marriage equality mastermind Roberta Kaplan’s lawsuit.

As ThinkProgress’ Ian Millhiser points out, that is a bizarre decision, since Mississippi’s gay adoption ban is plainly unconstitutional—even without Obergefell. Two years before that case, the court declared in United States v. Windsor that the federal gay marriage ban “humiliates tens of thousands of children now being raised by same-sex couples.” Such a law, the court wrote, also “makes it even more difficult for the children to understand the integrity and closeness of their own family.” And it “brings financial harm to children of same-sex couples” by denying them access to vital benefits. The court has long held that a law that punishes children in order to express moral disapproval of their parents violates the Equal Protection Clause. In Windsor, the court built upon that logic, holding that the marriage ban’s humiliation of children was one significant reason why it violated “basic due process and equal protection principles.”

Mississippi’s gay adoption ban is even more humiliating and harmful toward children than the federal gay marriage ban was. Children who might otherwise be placed with a loving, same-sex couple are forced to remain orphaned because the state dislikes homosexuality. Thousands of kids are denied the inestimable benefits of a compassionate family and the emotional and financial benefits of a stable, loving home. Why? Because the state has decided that gay people are unqualified to be parents, simply because of their identity. Mississippi, in other words, is condemning homosexuality by penalizing children—exactly what Windsor proscribes. 

Obergefell spells out a different, but equally important, reason why Mississippi’s ban is unconstitutional: It violates the rights of gay parents. The right to “establish a home and bring up children,” the court explained in Obergefell, “is a central part of the liberty protected by the Due Process Clause.” Raising children, the court reiterated, is one of the key aspects of the “constitutional marriage right.” And once again, the court returned to the issue of stigma, noting that “without the recognition, stability, and predictability marriage offers,” same-sex couples’ children “suffer the stigma of knowing their families are somehow lesser.”

In light of the powerful precedent, what defense does Mississippi offer? Initially, the state hits Kaplan et al. with some lame procedural arguments, namely that they sued the wrong officials. Then it rips into the theory that the Constitution protects gay couples’ right to raise and adopt children—citing, as authority, an 11th Circuit decision from 2004. That’s an odd choice for two reasons. First, Mississippi is not in the 11th Circuit—meaning the ruling isn’t even binding there.  Second, the 2004 case is old, and its holding was obviously corroded, if not outright overruled, by Windsor and Obergefell. Since then, the Supreme Court has announced that the Constitution protects the right of gay parents to marry and raise children. That is the law of the land. Mississippi’s pyrexial delusion is not.

There’s one amusing footnote to this mess. Bryant has presented himself as a fiscally responsible governor. Yet his state’s defense of its indefensible law may cost it hundreds of thousands of dollars. When Mississippi loses, it may be forced to pay the plaintiffs hundreds of thousands more in attorneys’ fees. Defending the gay adoption ban isn’t just a waste of time and energy: It’s a waste of money—or, more precisely, a redistribution of money from the state to gay couples and their attorneys. That, I suppose, is Bryant’s version of fiscal conservatism.