Ban on Mississippi’s same-sex couple adoptions lifted

Campaign v. Miss. Dep't of Human Servs., Civil Action No. 3:15cv578-DPJ-FKB, 2016 U.S. Dist. LEXIS 43897 (March 31, 2016), finally lifted the Mississippi ban on same sex couple adoptions. The Mississippi Code Section 93-17-3(5) states "Adoption by couples of the same gender is prohibited."

The suit was filed by four lesbian couples residing in Mississippi. While two of the couples sought a private adoption involving the biological child of one of the partners, the other two desired through the state’s foster-care system.

For plaintiffs Tina Sweeten-Lunsford and Kari Lunsford, seeking a foster-care adoption involved a child in DHS's foster-care custody. Such an adoption needed to be approved by a chancery court. But foster-care adoptions necessarily involved DHS. Such an adoption included (1) DHS’ approval of the prospective adopting party's application to become a foster-care resource home; (2) party’s participation in a resource-parent training as well as a home study; (3) party’s visitation with the foster child; (4) initiation of a proceeding with a court for placement; and (5) if placement occurs, continuous visits of a DHS social worker to the home for at least six months.

The couple did begin this process but were prevented from continuing for the reason that they were gay. Despite the Obergefell[1] decision, an employee of DHS informed that the Mississippi Adoption Ban that remained in place forbid adoption for same-sex couples. To this, the court opined that the foster-care application was the first step in the path to this type of adoption, and that DHS was solely responsible for administering it. Evidence had it that DHS recently withheld approval based on Section 93-17-3(5). The court also added that the barrier need not be "the very last step in the chain of causation," (Bennett v. Spear, 520 U.S. 154, 168 (1997)), nor must it resolve "every injury" (Larson v. Valente, 456 U.S. 228, 243 (1982)). If DHS had the authority to erect a barrier to foster-care adoption based on Section 93-17-3(5), it likewise had the ability to remove that barrier if so ordered.

The other part of the case involved plaintiffs Donna Phillips, Janet Smith, Kathryn Garner, and Susan Hrostowski already raising the biological child of one of the two partners. Section 93-17-11 addresses steps after filing a private-adoption petition, wherein the chancellor may order an investigation and then a home study where the petitioner was not a stepparent. In such a case, where the petitioner is a relative or stepparent, the chancellor has discretion whether to order a home study. The court under this very category determined that plaintiffs had established standing and found that DHS could both directly and through coercion impede a private adoption based on Section 93-17-3(5), for which reason it ordered an injunction to likely redress the alleged injuries.

The court held that DHS was statutorily empowered to set policies and participate directly in the adoption process, but had interfered with the same-sex adoptions after Obergefell. Accordingly, the Executive Director of DHS was preliminarily enjoined from enforcing the Mississippi Code.


[1] Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

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