For the past few years, WilmerHale attorneys have provided pro bono legal services to a number of organizations fighting laws in various states that restrict who may become a foster or adoptive parent. Whether the laws were directed at gays and lesbians in particular, or unmarried individuals living with partners, the firm argued on behalf of child welfare organizations that these laws were not in the best interest of children.
In June 2009, the firm filed an amicus brief in Florida’s Third District Court of Appeal on behalf of the Child Welfare League of America (CWLA) and eight other groups (or “amici”) in a case involving a foster parent who was denied adoption of his foster sons because of his sexual orientation. Martin Gill and his partner of more than 10 years had been raising two foster children since 2004, but were unable to adopt them due to a Florida law banning adoption by gays and lesbians. The American Civil Liberties Union (ACLU) represented Gill in a challenge to the constitutionality of the law, and won.
When the state appealed, the ACLU (which had worked with WilmerHale on other matters) approached Partner Elizabeth Mitchell about writing an amicus brief on behalf of the CWLA and other child welfare groups that were interested in submitting a brief in support of striking down the law. Mitchell, who had written an amicus brief in support of the (unsuccessful) certiorari petition to have the US Supreme Court hear a similar challenge to the Florida statute in 2004, readily agreed.
“We wanted to give the court perspective that would assist in its decision-making,” she says. “The voice in which we were speaking was that of our clients, these nine child welfare organizations, who promulgate national standards in the areas of adoption and child welfare and are recognized leaders in these fields.”
Mitchell, a member of the Securities Litigation & Enforcement Practice, worked with Securities Litigation & Enforcement Counsel Ben Brown and Senior Associate Arian June, as well as former WilmerHale associate Katie Halliday, to perform legal research and identify studies and literature that supported the argument of the child welfare organizations.
“The main argument was that Florida’s categorical ban was a striking and nonsensical departure from how the state typically makes child welfare decisions,” says Mitchell. “If someone wants to adopt a child, state agencies meet with them at their home and examine a number of details about their household, and most importantly, their relationship with the adoptive child. Categorically banning gays and lesbians from adopting was Florida’s sole exception to this system of case-by-case evaluation. Experts say this law doesn’t aid child welfare; in fact, it is detrimental to child welfare. You are keeping the pool of potential parents smaller for no reason. The alternative is that many of these kids are going to stay in foster care, where outcomes can be much worse.”
For Brown, participating in the writing of the amicus brief was an opportunity not only to positively impact the lives of children, but to gain practical experience in researching and writing a brief and in case management, as he coordinated with the various amici to solicit their assistance and keep them up to speed. In September 2010, the appeals court upheld the trial court’s decision and invalidated the law, and the state decided not to appeal further. The categorical exclusion is no longer in effect in Florida, and the case will hopefully deter similar laws elsewhere.
“Proposals to exclude gay people from adopting have come up in legislatures in a number of states,” says Brown. “This was a great practice development experience, but also something that really felt rewarding. It’s one thing to have a professional victory on behalf of a Fortune 100 corporation, but quite another to have a professional victory that impacts the lives of children.”
In Arkansas, the firm wrote an amicus brief on behalf of many of the same organizations regarding a state law enacted by the voters in 2008 that bans any unmarried person who lives with a partner from serving as an adoptive or foster parent in the state (effectively targeting many gay couples, who are not permitted to marry in Arkansas). The ACLU represented 20 individual plaintiffs from nine different families who were negatively affected by the law. A circuit court judge granted the plaintiffs’ motion for summary judgment, striking down the law on the basis that it violated the plaintiffs’ equal protection and due process rights under the Arkansas Constitution. The state then appealed the case to the Arkansas Supreme Court, at which point WilmerHale became involved.
“Our amicus brief points out that according to experts in the field, there’s no rational basis to categorically exclude the entire subset of unmarried cohabiting individuals from the universe of potential parents, even if there are some individuals within that subset—like any subset of people—who would not make good parents,” says Counsel Heath Brooks, who worked on the matter with Partner Kim Parker and Associate Emily Meyers. “Regardless of the universe of potential parents, the relevant state agency does an individualized analysis of whomever it’s considering. If the state’s child welfare professionals are going to perform this analysis anyway, why not let them be the judge of which applicants will best meet the needs of a particular child, rather than excluding a large swath of potential parents from consideration?”
Brooks and his team submitted the brief in late October 2010, and the court has not yet rendered its decision. The ACLU, however, was so pleased with the firm’s work in both cases that it came back to Brooks—a member of the IP Litigation and Appellate & Supreme Court Litigation Practices—for assistance on another related issue in Louisiana. There, the state registrar is refusing to amend a birth certificate for a child from Louisiana who was legally adopted by a gay couple in New York, even though Louisiana law generally provides for such amendments so that an adopted child may have an accurate birth certificate. The brief for that case was filed in the Fifth Circuit (sitting en banc) in late December 2010 by Brooks and Partner Noah Levine, Senior Associate Patty Li and Associate Matthew Benedetto.
For members of the firm who have been involved in these matters, the work has been interesting and satisfying. For some, like Mitchell, it has had a personal element, as well. As a parent, she felt the subject matter hit especially close to home.
“As a mother, I have observed firsthand how important it is for a child to have a loving and stable relationship with a caring adult,” she says. “If our work helps one more child find a permanent and loving home, as opposed to staying in the foster system, that would be worth it.”