They have been together for 14 years, were married in California in 2008 during the brief window between gay marriage bans, and have raised a child together. But Alabama’s courts won’t call them a family.
In fact an Alabama appeals court on Friday ruled that, because of the state’s constitutional ban on same-sex marriage, Cari Searcy and Kimberly McKeand are legal strangers and therefore parenting rights cannot be extended to include the both of them.
The couple went to court to petition for Searcy’s right to adopt the child she and McKeand planned for and McKeand, after becoming pregnant through artificial insemination, carried to term.
After a Mobile County Probate Court ruled that Searcy could not adopt the child because she had no biological or partnership claim the couple took their fight to the Alabama Court of Civil Appeals, only to be told the same.
With Presiding Judge Bill Thompson writing for the majority the court decided unanimously that the state’s constitutional ban on same-sex marriage renders the couple’s California-recognized marriage redundant.
This is a significant ruling because it appears this may be one of the first times the state’s 2006 voter-enacted constitutional ban on same-sex marriage, known as the Alabama Sanctity of Marriage Amendment, has been invoked in this manner.
The amendment, steeped in religiosity, demands via its Section (e) that:
The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
The amendment also prevents recognition of any marriage-like partnerships such as civil unions, meaning Alabama’s gay and lesbian residents have little chance of accessing partnership benefits.
Cari Searcy and Kimberly McKeand specifically chose to marry in order that they might be able to win joint parenting rights for their son, now six years-old, after Searcy’s previous attempt to adopt was denied by Judge Davis because Searcy and McKeand were not married.
Joint parenting rights are an important safe-guard that, while de facto for straight couples, many same-sex couples are denied. The danger of this was brought into sharp relief for the couple when their son required heart surgery as a baby and only McKeand was allowed to sign consent forms for certain medical procedures their son required.
Still, this has not stopped one Alabama senator from gloating about this so-called victory for marriage.
“This ruling solidifies the fact the institution of marriage includes a man and a woman raising the children,” state Sen. Gerald Allen, R-Tuscaloosa, is quoted as saying by the AP.
The couple is considering further appeals, perhaps even taking their case to a federal court. They may have cause to do so because the ruling, with Judge Davis invoking the marriage amendment, has exposed the legal tangle that prevents them and all other same-sex couples from accessing joint adoption rights.
In effect, the state refuses them the right to jointly adopt because they aren’t married. The state then refuses to recognize their California-enacted marriage, per the marriage amendment, and so denies them the right to jointly adopt. They have no legal remedy for this within the state and therefore a federal appeal could be fruitful. However, they would also have to take on the federal Defense of Marriage Act which explicitly says that states do not have to honor same-sex couple marriages from other states. This is no small thing.
Also, and as with any court case, the cost of such legal action could be prohibitive, something the couple’s lawyers have already stressed may be an issue.
In the meantime the couple must continue to raise their son and go about day-to-day life knowing that Alabama treats their marriage as though it never happened, and that Searcy could, should the unthinkable happen to her partner, potentially be denied access to their son with little chance at a legal remedy.
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