Mobile is making national headlines after two long-time residents filed suit in U.S District Court against Alabama Gov. Robert Bentley and Attorney General Luther Strange on Wednesday, May 7.
Cari Searcy and Kimberly McKeand, a same-sex couple residing in Mobile County, named the two state officials and others in the recent complaint, which seeks an injunction allowing Searcy to legally adopt McKeand’s son, Khaya. McKeand gave birth to her son in 2005, and she and Searcy have raised the 9-year-old as equal parents.
“Our clients are excellent people and a wonderful family,” said Attorney David Kennedy, who is representing the couple along with co-council Christine Hernandez. “We’re trying to get the state government to see that, too.”
Searcy filed a petition with the Probate Court of Mobile County seeking to adopt Khaya in 2011 under the state’s stepparent adoption statute (Ala. Code 226-10A-27), which established that “any person can adopt his or her spouse’s child.”
“Spouse is not particularly defined in that statue,” Hernandez said. “If you’re married, that’s your spouse.”
Searcy and McKeand were married in California six years ago, but the Probate Court and the Court of Civil Appeals of Alabama have officially disagreed about its validity.
In two separate cases, both courts ruled against Searcy — citing Alabama Code 1975 Section 30-1-19(e), which states Alabama “shall not recognize any marriage of parties of the same sex” that occurred in other states.
Kennedy said the state is pretending his clients’ marriage isn’t real, which he and Hernandez feel is unconstitutional for several reasons. He cited the “full faith and credit clause” of the U.S. Constitution, which requires states to respect the “public acts, records and judicial proceedings of every other state.”
“The state will recognize an out-of-state marriage license for heterosexual couples,” Hernandez said. “If you look at the marriage licenses, they’re not different except for the gender of one party to the lenience.”
Kennedy maintains Alabama is also violating the equal protection and due process clauses outlined in the 14th Amendment.
“You can’t treat people differently. We’re all guaranteed equality,” he said. “States can’t decline a person of property or personal items without due process, but they’re voiding this couple’s marriage without due process.”
Searcy and McKeand were reluctant to peruse the case after exhausting their options in state court, but eventually decided it was worth the effort.
“With the ruling on the Defense of Marriage Act (DOMA) last year and the Supreme Court, we really felt like we had a strong case to finally obtain those rights,” Searcy said. “We’ve been fighting this battle for almost nine years. We’re just hoping to obtain the right to adopt before (Khaya) turns 18.”
After DOMA was repealed, the federal government officially began recognizing same-sex unions, which led to Searcy and McKeand filing a joint federal tax return for the first time. Here at home, the state of Alabama wouldn’t acknowledge their union, and the couple had to separately file their state income taxes.
Searcy said there are more than 1,400 benefits couples don’t realize marriage affords them, including medical authorization, which is important to the couple because of their son’s history of heart complications.
When he was 3 months old, Khaya had open-heart surgery and Searcy was not allowed to sign permission forms for the medical procedure.
Kennedy said the law, as its interpreted currently, also prevents Searcy from retaining custody of Khaya if something were to happen to McKeand, even though she is the only other parent he’s ever known.
“The state views her as a legal stranger,” he said. “It could also cause problems with inheritance, access to school and medical records and all sorts of other things. All the little things parents can do, she can’t.”
The cornerstone of the state’s case against the adoption rests on the Sanctity Laws, which are outlined in Amendment 774 of Alabama’s constitution. Searcy’s suit claims that law is unconstitutional as applied to her case because Alabama has no legitimate basis in public policy for denying the adoption.
“We’re not asking the state to change the marriage laws at all,” she said. “We’re just asking them to apply the adoption laws as they’re already written.”
Kennedy said those issues are likely two sides of the same coin.
“For the adoption to take place, you have to be considered a spouse. As it’s written, they would have to acknowledge the marriage,” he said. “That’s the real issue with the law — it’s overly broad and has led to disastrous outcomes like this case. You have to address different situations and delineate.”
Despite confidence in the case, Kennedy said he doesn’t suspect the governor or the attorney general are going to give up any time soon, but then neither are his clients.
“We’re prepared to go the distance, which would be the U.S. Supreme Court,” Kennedy said. “They’re already addressing similar constitutional amendments in other states. I strongly suspect the Supreme Court will have the facts of this case in front of it, whether on paper or presented by us.”
Searcy said if the current laws are applied, she feels there’s no way the state can deny her the right to adopt her spouse’s child.
As for Khaya, he may not fully understand the significance of why his parents are being featured in Time Magazine and the Washington Post, but he does know about his court case.
“All along the way we’ve always been fully up front with him, so he knows about the case and how long it’s been going on,” Searcy said. “We’ve been sharing the news articles with him and he handles it really well. I’m proud of him for that.”