ACLU becomes involved in gay adoptions dispute

County attorney argues decisions on same-sex marriage don’t equate to a legal right to adopt

By Ben Giles and Gary Grado
The Daily Record Newswire

PHOENIX, AZ - The American Civil Liberties Union of Arizona said Thursday it will sue Maricopa County Attorney Bill Montgomery unless he changes course and begins to provide gay couples with mandated adoption services.

Montgomery refused earlier this month to handle an adoption petition for a same-sex couple who wanted to do a step-parent adoption. The ACLU of Arizona, on behalf of the couple, sent a letter to Montgomery giving him until April 20 to "immediately implement policies that guarantee equal protection to same-sex married couples."

"The MCAO's continued enforcement of any policy to deny adoption services to same-sex married couples that are provided to heterosexual married couples will result in litigation," wrote Victoria Lopez, the ACLU's legal director.

Montgomery tried to get out of the adoption business by pushing HB2296, which would have eliminated the requirement for county attorneys to represent adoptive parents in uncontested adoptions and provided discretion over whether to provide the free service.

But Gov. Doug Ducey vetoed the measure April 13. The requirement has been in place since 1970.

Despite Ducey's veto of HB2296, Montgomery isn't backing down from his position that federal court decisions outlawing Arizona's ban on same-sex marriage don't equate to a legal right for same-sex couples to adopt, County Attorney spokesman Jerry Cobb said.

Based on those same federal court decisions Montgomery cites, Lopez wrote that "laws and policies that refuse to recognize same-sex marriages 'unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.'"

Adoption attorney Claudia Work, who is also an advocate for gay rights issues, said Montgomery's interpretation of the court's ruling is flawed and opened himself up for an equal protection and a gender bias lawsuit.

"There's nothing in case law, there's nothing in statutory law, nor is there anything in the ethical rules that allows a county attorney to take the position that they're going to help straight, married couples to do step-parent adoptions and not help gay married couples do step-parent adoptions," Work said.

Work said the deputy county attorneys who do the work on the adoptions are vulnerable to violating a professional conduct rule that prohibits attorneys from showing bias or prejudice based upon sexual orientation and other protected classes.

It is an ethical rule that Montgomery and Center for Arizona Policy tried to rewrite in 2012, partly by eliminating the listing of protected classes.

Carmina Ocampo, a staff attorney with Lambda Legal, which argued the case in the 9th U.S. Circuit Court that effectively legalized gay marriage in Arizona, previously said the firm is also closely monitoring Montgomery's next move.

"We are letting everyone know, not just him, that as we've said, we're ready to litigate this," Ocampo said. "I think the decision's really with [Bill Montgomery]. If they want to take this to court and cost the taxpayers money, we're definitely ready to litigate this."

Montgomery said in an April 9 press release that he isn't going to apply more to the law than what was directly addressed in the court rulings or supplant himself for the Legislature, which hasn't passed any law allowing same-sex couples to adopt.

U.S. District Court Judge John Sedwick declared Arizona's ban on same-sex marriage unconstitutional on Oct. 17. His ruling followed a similar one earlier in the month by the 9th U.S. Circuit Court of Appeals voiding similar laws in Nevada and Idaho.

Arizona's attorney general at the time, Tom Horne, decided against appealing Sedwick's ruling.

HB2296 was an obscure bill that received no opposition in either chamber's committee and passed easily along party lines in the Republican controlled Legislature.

The bill gained significance after Montgomery refused to provide the adoption service to Leticia and Lenora Reyes-Petroff. Ducey's approval would have allowed the county attorney to stop doing the adoptions entirely and avert any other same-sex couples from seeking adoptions.

The couple wanted to get a step-parent adoption because there is no requirement for an opposite-sex union as when adopting a foster child. Lenora wants to become the adoptive parent of Leticia's son, who was conceived through artificial insemination.

Montgomery pushed the bill to relieve his office of the financial burden of providing representation to adoptive parents. County Attorney lobbyist Rebecca Baker testified in a legislative committee in January that the office does about 300 adoptions a year.

Bill sponsor Rep. Eddie Farnsworth, a Gilbert Republican, said it would shift the service to the private sector and allow county attorneys "to prosecute bad guys."

Ducey said in his veto letter that while he understands the budget problems of counties, he feared the law would reduce the number of adoptions.

Ducey sidestepped questions at a luncheon Tuesday about his position on adoptions by same-sex couples, but emphasized his policy of encouraging adoptions.

In February, he began calling on faith-based, pro-life and other groups to help find homes for about 16,900 children who are in state care.

"I've been out in public talking about the 16,990, over 17,000 children that we have in custody of the state. So the North Star for me is I want to see more adoptions. I want to see more kids in loving homes under the legal structure. And that's just something I'm going to continue to be an advocate for," Ducey said.

When asked specifically whether that goal included same-sex couples, Ducey said, "I want to see adoptions. I want to see adoptions done legally into loving homes with loving families."

Ironically, one source of opposition to Ducey's veto came from Democratic Maricopa County Supervisor Steve Gallardo, who is gay.

Gallardo said he opposed Montgomery's policy because if the county attorney's office is going to provide such a service, it should either provide it to everyone or to no one. But he said he doesn't think providing legal assistance with adoptions is a proper role for the county.

"I don't believe this is the type of service that the taxpayer should be paying for. We're not in the business of providing these types of legal services. Why are we stopping at adoption only? Why aren't we providing services for folks who want to get a divorce or people who want to create a living will?" said Gallardo, a former legislator. "There's a whole slew of services that we could be providing that we don't and we shouldn't. And why are we providing this type of an adoption service?"

Published: Fri, Apr 17, 2015

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