Attorney Bernadette Lee represents a couple celebrating two major life events: the adoption of a child and their upcoming wedding.
The adoption was finalized last month, before the landmark U.S. Supreme Court ruling on same-sex marriage that will allow the two men to marry in their home state.
That meant they faced a hard choice that no same-sex couple in Louisiana will have to make again: Because state law restricts adoption to single people and married couples, they had to decide which of the two would adopt their child.
The Supreme Court ruling in Obergefell v. Hodges sweeps away state laws that ban same-sex marriage. Since gay and lesbian couples can now marry in Louisiana — something that wasn’t legal here before June 26 — they now comply with that requirement.
Chris Otten, who chairs Forum for Equality Louisiana, expects adoptions by same-sex couples to happen here without any additional changes to the law.
For Lee’s clients, that means the pragmatic choice they made — having the parent with health insurance become the official adoptive parent — won’t bring a lifetime of worrying about the other parent’s ability to seek medical treatment, get school records and perform the other myriad responsibilities of raising a child.
Once married, they’ll be able to pursue a stepchild adoption, something Lee says is a relatively simple process, giving them the legal rights and responsibilities of parenthood that heterosexual spouses take for granted.
That scenario is likely to play out across the state, as same-sex families who adopted children prior to the ruling take steps to ensure their parental status.
In the first week following the Supreme Court ruling, the immediate focus was on the document at the center of the change: the marriage license. But a host of other legal documents also will be involved as same-sex couples wed: birth certificates, adoption certificates, successions and divorce decrees.
The first same-sex divorce in Louisiana preceded the first wedding by several hours, and the lawyer who handled it, Mitch Hoffman, said he’s heard from attorneys in four other divorces who hoped his firm could represent the other parties — something he described as pent-up demand.
Tulane University law professor Tania Tetlow, who focuses on constitutional law and family law, said that for people in abusive situations, being able to get a divorce here is a more immediate concern than being able to marry. States that allowed same-sex couples from Louisiana to marry with only a token residency requirement did not, in some cases, make similar provisions for divorce, meaning the abused spouse was stuck in the legal relationship.
Much of the language in family law is already neutral, referencing “spouse” instead of “husband” or “wife” and “parent” instead of “mother” or “father,” Tetlow said. The laws were written that way not in anticipation of the landmark change but simply because it meant fewer words, she said.
Family law attorney Janet Ahern pointed out that state law presumes the husband in a marriage to be the father of children born to the union, and she wonders how that law will play out post-Obergefell. But Tetlow said that if the law presumes that children born of a marriage belong to both spouses, that will make matters less complicated for same-sex couples who conceive by artificial insemination.
Having the names of both parents on birth and adoption certificates is not just a matter of symbolism. Family law attorney Edith Morris said same-sex clients formerly worried that a surviving spouse might lose custody of children if the adoptive parent died.
Since Louisiana is a forced-heirship state, where children 23 or younger and those who are disabled must inherit part of a parent’s estate, there are also ramifications for children of same-sex couples.
But while marriage equality and the family law issues that flow from it seem fairly clear-cut, the Supreme Court’s ruling doesn’t address other issues that gay rights advocates see as critical.
“People can get married today and get fired tomorrow,’’ said SarahJane Brady, executive director of Forum for Equality Louisiana.
Other states and many U.S. cities have anti-discrimination laws covering employment, housing and public accommodations that specifically include LGBT people, said Isabel Medina, a constitutional law professor at Loyola University.
In Louisiana, only New Orleans and Shreveport have ordinances that make discrimination based on sexual orientation or gender identification illegal. For Louisianians who do not live in those cities, Brady described same-sex marriage as an act of courage because it could result in job loss or eviction as employers or landlords find out about the marriage — and, by extension, the couple’s sexual orientation.
Efforts to address that type of discrimination have been moving on a parallel track to marriage equity, Brady said. “Some of the battles will be in court; some will happen in the halls of legislation,’’ she said.
Those battles have already been joined in Louisiana, although thus far without widespread success. In the most recent legislative session, state Rep. Austin Badon, of New Orleans, sponsored a bill that sought to bar discrimination based on sexual orientation or gender identity, something he has done in the past. The bill was never brought up and didn’t receive a committee hearing.
Attempts in Baton Rouge to pass anti-discrimination ordinances that include LGBT people have failed repeatedly.
Medina said she expects to see more state and local governments around the country adopt such laws as gay rights become more politically palatable, although she expressed skepticism that a national anti-discrimination law will come from this Congress.
Any new anti-discrimination rules for private citizens will require legislative action, Medina said. But the bottom line for governments is clear: Any restrictions hinging on sexual orientation are invalid.
Meanwhile, opponents of gay marriage are vocally fretting about what might come next — raising concerns that religious institutions, private businesses and individuals will be forced to accommodate same-sex marriage in ways that violate their beliefs.
For example, Catholic adoption agencies have, in some cases, stopped adoption services in states that previously legalized same-sex unions. In New Orleans, Catholic Charities does not place children with gay couples, said Sarah McDonald, spokeswoman for the Archdiocese of New Orleans, and that is still the case.
“As this is a new ruling with potentially far-reaching implications, it is still being reviewed by the pastoral leadership of the church and its legal counsel,’’ McDonald said. “At this time, the policies and practices of Catholic Charities Maternity and Adoption Services remain unchanged while we await recommendations from this review.’’
Medina described the Supreme Court as being “open to carving out exceptions for religious organizations’’ and receptive to “their need to act in ways consistent with their religious faith.’’
There is no right to adopt children, she said, and there’s no federal adoption authority. There are many reasons a state agency can give for not placing a child with a particular couple, although it could not reject someone based solely on sexual orientation, Medina said.
The state Department of Child and Family Services has been working to identify all programs and services affected by the Supreme Court ruling and creating new policies to address the change in the law, spokeswoman Tia Embaugh said. “At the opening of business (Thursday), DCFS staff were advised of the protocol to follow in the event same-sex married clients request services,’’ she said in an email. The protocol ensures compliance with the law while written guidelines are completed, she said.
The way churches and religious organizations will respond to the court’s ruling remains to be seen. However, Medina and Tetlow noted that churches and religious organizations were not successful in citing religious beliefs as a justification for refusing to comply with laws aimed at preventing discrimination against African-Americans.
Days after the Supreme Court ruling, Thomas Enright, executive counsel for Gov. Bobby Jindal, said that clerks of court in Louisiana do not have to issue same-sex marriage licenses if they have objections based on religious beliefs. But all Louisiana parishes now are prepared to issue such licenses.
Since people can get their marriage license in any parish, Tetlow said couples would probably be able to find a clerk willing to serve them, in the event the clerk in their parish did refuse. The first gay couple married in Louisiana wed in New Orleans but got their license in Jefferson Parish, where Clerk of Court Jon Gegenheimer began issuing licenses before they were available in New Orleans.
But Marjorie Esman, executive director of the Louisiana chapter of the ACLU, scoffed at the idea that a public official who has sworn to uphold the law can simply refuse to do so. That, she said, would be tantamount to saying, “I am not going to do my job, which is to apply the law equally to everyone who applies.”
“Maybe you need another job,” she said.
Editor’s note: This story was changed July 6 to clarify Chris Otten’s title and correct the spelling of his last name.
Follow Sara Pagones on Twitter, @spagonesadvocat.