I think I've said most of what I have to say about parents' rights before, but I'm sure I'll end up reiterating them here. It's a big red flag if a private adoption agency encourages prospective adoptive parents to call pregnant women "birth mothers" because it sends a message that isn't accurate and may not ever be. She thought of this baby as hers before he was, legally or otherwise. I know that adoptions that fall through are emotionally rough because I've gone through that loss more than once, but it makes me sad and angry to see how many people get pushed into being unrealistically hopeful about adoption in ways that make them behave unethically (by my standards.)
You're entirely correct, of course.
It's also weird and uncomfortable for me (and this is all about me, right?) to read the knee-jerk pro-adoption comments she gets and people tend to get in that situation, that adoption is a selfless, wonderful thing and people who do it should be praised. It goes along with the assumption that adoptive homes are better than poor/"broken"/other homes.
This is news article friendly to the "adoptive" family (who never actually adopted the boy since his father contested the adoption before it could be finalized, but that's the narrative) and the little boy was Mara's age, as is the boy in the OP, but he went back to his father's care at age 3 I think the same weekend Mara moved to us. And I remember how surreal it was to read all this stuff about how his dad was ruining his life by making him move from a home where he'd been loved and cared for to a single-parent house where someone heard he fell asleep in front of the tv, and here I was rocking this 3-year-old who was with her third family in 12 months and had no contact with her birth family at all and yet the same people who were weeping over the loss little Grayson was suffering in leaving his pre-adoptive family wouldn't have said Mara should be back with her mom. People just don't think about their underlying assumptions with this sort of thing.
Not enormously relevant, but a stay-at-home-dad friend just got DCF called on him because his neighbor (annoyed that toddler noises were making it difficult for her to start a voiceover business out of an un-soundproofed bedroom in her apartment) was shocked! shocked! that she could hear his daughter abandoned in her crib, um, laughing.
I'd run the radio in the bedroom continually, just for revenge.
5: he has done that, yeah. I think he played this many times over. Also he's moving today, so at this point whatever. Also, who the hell tries to run a voiceover business out of an un-soundproofed (and unairconditioned!) bedroom in a residential neighborhood? A crazy idiot, that's who.
"In a world where voiceover businesses are run out un-soundproofed residential apartments..."
Not enormously relevant either, but Lake Bell voiceover-movie trailer.
And I remember how surreal it was to read all this stuff about how his dad was ruining his life by making him move from a home where he'd been loved and cared for to a single-parent house where someone heard he fell asleep in front of the tv
A couple months ago I was at the Supreme Court the day the pending contested adoption/ICWA case was being argued, and ended up talking at length with one of the attorneys for an adoption advocacy amicus sitting next to me in the lawyer's lounge--and boy howdy did I get an offensive earful of this kind of thing. Explicit assumption that because the prospective adoptive parents had greater financial and social resources, they could give the child a better life than the limited-resources biological father who had not displayed what they considered the requisite level of interest in his daughter; and that this meant the "best interests of the child" compelled that she be returned to the prospective adopters.
who had not displayed what they considered the requisite level of interest in his daughter
The fact that this argument is made by the parties who are keeping the parent and child apart, in a case where the father has been seeking custody since seventeen days after the birth, is just astonishing: it's the definition of chutzpah from the old joke.
10: Sort of, although in fairness the legal argument about level of interest is about what he did before he learned of the pending adoption. He had refused to contribute any pre- or post-natal support, and affirmatively renounced his parental rights in exchange for a discharge of child support obligations. Apparently as a matter of state law that was enough to deprive him of standing to challenge the adoption. So I don't know that it's chutzpah to raise the point, which pre-dated the adoptive parents' actions. What I found offensive from the lawyer I was talking to was (as I understood her) the implication that the guy's initial disinterest (which, yeah, bad!) was dispositive evidence that it would be a travesty for this girl to be raised by him, when there were these two parents who really loved her.
What I thought was pure blazing chutzpah was the argument that it was a travesty to remove the girl from the only home she'd know for the first two years of her life. Which, yes, sure, a horrible situation, but one entirely of the adoptive parents' creation. (And a situation they were seeking to repeat by now trying to get her back from the home she's known for the second two years of her life.) They got called out on that one by I think it was Sotomayor--no custody by estoppel.
I have permission from Rowan to talk about his situation, which I didn't last time I vaguely posted about it. If he gives money to the woman who's pregnant with what may be his baby, she'll spend it on drugs and alcohol that she and her ex (who also may be the dad) will use. It seems by any moral/ethical standard he's screwed and definitely by upgetgi's he is, since she's gone back to her ex as her primary relationship. And so we've advised that he not give her money. Food is ok (and I've given him food) but if he thinks his money is not going to what he needs it to go to, he has very little money and that is not the best use of it. But ugh, and I think this is not a situation that is unique to him. And fuck, I hope no one expects us to raise this baby.
9-11: So is that yet another case that will be announced next week? From reading this on the oral arguments it seemed to pull some blog comments-like emotion out of some of the justices. Is my understanding correct that if it were just state law, the original decision would have definitely gone in the direction of the adoptive parents? Based on the previous discussion here, not clear to me if most here would have seen that as an injustice or not. (Of course, the adoptive parents continuing to pursue after the actual decision seems to be much more open and shut as to judging that they are not really operating in the best interests of the child at that point.)
3: It's also weird and uncomfortable for me (and this is all about me, right?) to read the knee-jerk pro-adoption comments she gets and people tend to get in that situation, that adoption is a selfless, wonderful thing and people who do it should be praised.
Me too. People, including family members, would say this sort of thing when we first adopted and I usually replied something like "We really are just doing this for ourselves. We want to have kids and this is the best way for us to have 'em." But it didn't seem to register.
13: Yes, though I think LB was getting the number of weeks from the Grayson case I referenced, which the Supreme Court refused to take on, so by this fall both he and Mara will have been with their permanent legal families longer than they were with their initial-placement families. The case the Supreme Court is dealing with is extra complicated because ICWA (the law governing placement of children with tribal membership or children of parents with tribal membership) is a different issue than straight-up waiting periods.
But for parents of teens or the heterosexually active males among us, it's potentially good to know whether you're in a state that requires potential dads to sign up on a putative father registry every time they have potentially procreative sex, I guess. I fall on the "eww" side of that argument, but the law is not with me.
The ICWA case was discussed at length on Radiolab a few weeks ago, though perhaps all Radiolab episodes are now deemed to be the work of Satan because of that awkward interview with the "yellow rain" guy. Anyway, after hearing from all the people involved, it seemed like the main significance of the case was as a "Hard cases make bad law"-style opportunity to undermine the very legal concept of Indian nations by finding a particular case in which the double-standard looks ridiculous.
I was conflating the two cases.
Here there was a similar case, where the adoptive family argued that it was in the best interest of the child to keep her home intact, and as they've been holding up the return to her father for two years....
a state that requires potential dads to sign up on a putative father registry every time they have potentially procreative sex
Yes, every time. Some of us have special dispensation to use a rubber stamp, to avoid repetitive strain injury.
18: I know I've said this a billion times, but Utah is ground zero for all this and so way too many adoption agencies fly pregnant women to Utah because it makes it so much easier to deny potential fathers any rights. In one memorable case which I should probably google and will after I start this laundry load, a dad was denied standing because the Utah court didn't get around to filing his paperwork until several days after they'd gotten it and therefore the adoptive family had obvious precedent, no?
That's the case of which I'm thinking. Bunch of baby thieves.
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SCOTUSblog has a post on judicial review and, particularly, on states' rights arguments -- on federalism -- that's worth a read in one's spare time.
You should decide now what kind of Supreme Court you want. Don't wait until after the Justices hand down the Term's major decisions. That will be too late. Make a real choice now about how much power you think the Court should have - before your judgment is skewed by either elation or outrage at the results.
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22:
In fact, the judiciary - and the Supreme Court in particular - is the part of our government that seems to be working the best. The Justices disagree greatly about these important questions. But no serious and knowledgeable person doubts that they all work incredibly hard and in total good faith to try and figure out the right answer.
23, 24: I didn't mean to threadjack. The topic of this thread is important to many. That said, I perceived the column to be a challenge, and found that I wasn't up to thinking it through, so I appreciate the commentary.
The plaintiff's theory in the DOMA case does not require the Court to rule on states' rights grounds.
Right, it can be argued on equal protection grounds. Goldstein acknowledges that. The court could also rule on states' rights grounds. I'm concerned about all this.
But this thread is about adoption, and I really don't want to threadjack.
13: yes, it'll be decided next week. I didn't think the oral argument felt particularly emotional, if anything a little brusque toward the adoptive parents' side. And yes, there was no dispute that, but for ICWA, the adoption would have gone through.
The quote in 22 is about the stupidest thing I've read about the Court in a very long time (will have to read the full piece later).
24: The plaintiff's theory doesn't require it, but I think the smart money is on DOMA Section 3 going down at least partially under a federalism theory. Which I initially thought was seriously dumb stupid (because federalism arguments generally are) but (a) a victory is a victory and (b) I got talked a while back into thinking maybe it wasn't so stupid.
Maybe I'm wrong about this, but I think a reversal in the IWCA case would mean the matter probably has to go for retrial. And surely the facts are different now that the kid has been with the father and his family for the last 18 months. (The majority in SoCarolina didn't have any problem saying that being with the father was in the bests interests -- albeit they were applying the federal standard. If on reversal SoCarolina law requires that the kid be turned over now, even without a new trial, this means that SoCarolina law is deeply fucked up: willing to impose a technical point about what the father did during pregnancy 3 years ago (which was try to get the mother to marry him, using child support as leverage) -- and while he thought the mother would be taking care of the kid -- over the current best interests of the child.)
29: They're not going to get a reversal. But if they did it's not clear to me they'd need a retrial: a reversal would nullify the dad's standing and without that the adoption would have gone through. I guess there could be a way to regain standing as a matter of SC family law, but as Sotomayor pointed out, there are all sorts of problems if you create rights by virtue of a party digging in its heels.
Right, he loses standing, but they still, I would think, have to do a best interests analysis now. Or they should.
Ah, I see. That makes sense, but I don't know--there was some discussion in the case that the assessment should relate back to the time everything accrued--otherwise the fact that the kid had lived with the prospective adoptive parents for two years while the adoption petition was pending and under review would have weighed in their favor. Perverse incentive to hang on to the kid and drag things out as long as possible. No idea what the right answer is (as a legal matter or otherwise).
28.3 -- I really hate the federalism argument against DOMA Section 3, which is usually presented as bog-standard stupid libertarian federalism, as for example here. But maybe I haven't heard it in convincing enough fashion.
Goldstein's also dead wrong (and stupidly so) in the following quote, though not as dead wrong as in the quote excerpted in 22:
But what if progressive same-sex marriage advocates instead argue that both DOMA and Prop 8 violate the right to equal protection. Though the Constitution's framers would not have recognized a claim of discrimination against homosexuals, society has evolved. We need to look at people as individuals, not members of groups. That's a reasonable argument. But it is also the theory of conservatives who assert this Term that affirmative action violates equal protection because it groups us by race and amounts to racial discrimination.
Uh, no it is not the same argument, at all.
I don't know whether it was a state policy, county policy, agency policy, or what, but when Jane's (now) cousin was placed for adoption at birth, she didn't move in immediately with her (now) dads -- instead she lived in a separate fostering situation for something like four months, until everything was finalized. I got the impression this was completely standard and it seemed like a good idea, to help forestall feelings of "but this is already MY CHILD" in the event that someone wanted to contest the adoption.
33 -- I stopped paying close attention when the guy equated federalism concerns relating to voting rights (including in federal elections) with federalism concerns relating to marriage and family law.
And I wish every time some journalist or pundit writes "states' rights" the internet would autocorrect this to "states' rights to deny equal protection under the law."
(Or, I suppose, "states' rights to deprive people of liberty interests without due process.")
Don't forget states' rights to refuse to provide their poorer citizens with Medicaid health insurance, because hey look federalism.
And make sure that every story about AA at a place like UT is clear that the opponents of AA are fighting against "states' rights."
On the ICWA case, I think I'm probably wrong about the need to remand. This line from the SCSC opinion leads me to think that: When reviewing a decision by the family court, an appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence. Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650, 651 (2011).
best interests analysis
I'm not a fan. IMO the courts should be deciding who has the rights to the kid and that's it.
33.1: I found the brief you linked to better than that--yes, it's dressed up in bog-standard bullshit, but there's some non-crazy points in there. (But I was talked around to not out-of-hand dismissing the argument by the author of that brief, who is a persuasive guy, not himself a libertarian nut, and very personally invested in same-sex marriage; so I'm willing to admit I may simply have tasted a little of the kool-aid here.) In any event, certainly not suggesting it's the right argument, but a victory is a victory and if a stupid federalism argument is the only way to get five justices, that's okay.
I just don't understand why Congress doesn't have the power to define marriage for the purposes of federal law enacted under its enumerated powers only in any way it sees fit, so long as that definition otherwise comports with the constitution, including equal protection.
The argument seems to be that it can't do so because hrm hrm handwave hrm hrm states are sovereigns and have dignity and this is traditionally their area.
And, of course, DOMA is abhorrent to the constitution, but that is because it enacts an irrational law that is explicitly designed to discriminate against a minority group. But not because of "states' rights."
The "best interests" argument does seem dangerous, to be sure, given all those studies indicating that education and future wealth of a child are correlated with the education wealth of its parents. How do you define the value of being raised by "birth parents" in the face of that?
42: sure, but I think there's something to the point that Congress didn't just, e.g., go in and amend the Social Security statute or the ERISA statute etc. to define the scope of laws passed under its enumerated powers. The shotgun approach they took, and the legislative history, suggested that they were interested in defining marriage as an end in itself beyond the excercise of the commerce/spending/whatever powers (and, more importantly, though of course not directly part of the federalism argument, sheds a bright light on the fact that there was no way this could be anything other than irrational discrimination--if there were, hypothetically, some rational need to exclude SSM from a particular federal program, exclude it from that particular program; but you can't rationally exclude across all federal programs in one fell swoop like this).
Like I said, I don't think it's the right argument--the equal protection argument is the right argument--or even a right argument (I personally have no committment to the notion of enumerated federal powers and am happy with a plenary take on the commerce power; and I'm certainly not prepared to say that Randy Barnett is right about anything), just that it's not as completely vacuous as I'm generally inclined to expect when I hear "federalism argument". I don't think you have to be a libertarian nut to think there's something to the notion that Congress took an approach far broader than it was entitled to take to exercise its powers.
Eh, I don't want to make you argue in favor of something you disagree with, and we actually obviously both pretty much agree on this issue. But I really don't find the idea that Congress can do something piecemeal, but can't do so through a "shotgun" approach, persuasive. If, for example, Congress passed a law defining a "sweet potato" for purposes of all federal laws as including "yams," that would be constitutional -- it doesn't need to hunt through each individual federal statute and specifically amend sweet potato to include yams. And I really don't like looking to Congress' purported "purpose" in doing something to figure out whether or not they're doing something within their enumerated powers -- if an action is within the enumerated powers and otherwise not barred by the constitution, Congress should be able to act, regardless of whether a court thinks that its real "purpose" is something that's mean to the states.
In terms of enumerated powers, I agree with 46. If something is an infringement of fundamental rights, though, in deciding whether it's a valid exercise of legislative power, you'd look whether it was narrowly tailored to advance a compelling state interest. It might be that some yam designations meet this test and others don't.
Absolutely. I agree with 47 (and was trying to get something like that in "otherwise not barred by the constitution," but it's better to be more explicit).
But, in this context, the DOMA "federalism" argument is designed to be independent of whether or not DOMA infringes on a fundamental right, or upon any right at all -- it's phrased entirely in terms of Congress' enumerated powers and the federal/state balance.
I haven't read anything on this argument -- and am not going to -- but it sounds like reverse preemption. For which I think you'd need some pretty strong authority.
49: It's not reverse preemption at all (which requires Congress to affirmatively carve something out for the exclusive control of the states when other federal statutes might otherwise apply), it's just an argument that the approach Congress took here goes beyond what could conceivably reflect operating within its enumerated powers and encroaches on matters reserved to the states. It's certainly not compelled by authority but I don't understand why that would be essential when you're talking to the Supreme Court. Like I said, I don't think it's the right answer, but that's because I agree with 46.last (or would go further: I think Congress's power is essentially plenary at this point, and don't think courts have any business striking federal laws unless they encroach on affirmative rights). But if you believe in federalism at all it's not a bad pitch to Kennedy (and maybe Roberts?) and my prediction is that it'll play a role, possibly a decisive role, in an opinion striking Section 3 next week, and that'll be just fine by me (in a way that the truly preposterous health care ruling wasn't, even though the result was right).
Right, I was just thinking that it's more like double reverse preemption.
When I wrote 49, I wasn't thinking of McCarran Ferguson style reverse preemption, which is obviously within the power of Congress, but something from the Constitution that would prevent any congressional legislation where the states have occupied the field. It's not obvious what that would be.
Double reverse secret preemption.
Something like using Justice Jackson's Youngstown factors to look at federalism (rather than separation of powers).