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Same-Sex Adoption in Alabama

Same-sex couple with adopted baby on beach

Alabama has a tepid relationship towards LGBT rights. While Alabama, like all other states, recognizes the right of same-sex couples to marry following the 2015 Supreme Court decision in Obergefell v. Hodges, the conservative state legislature and courts are often on the lookout for ways to limit the scope of that decision. Read on for some of the laws and cases that have impacted the rights of LGBT persons and same-sex couples to adopt in Alabama, and contact an experienced Alabama adoption attorney with any additional questions.

Alabama Law Permits Same-Sex Adoption But Allows Religious Objection

Under current Alabama law there is no explicit prohibition on adoption by either an LGBT individual, a married same-sex couple, or an unmarried same-sex couple. Additionally, Alabama will list both members of a same-sex marriage as parents on the birth certificate of a child born during the marriage.

However, last year the Alabama legislature passed a law which allows adoption agencies to deny adoption to same-sex couples based on their religious views. House Bill 24 purports to “prohibit the state from discriminating” against those whose religious views counsel them against granting an adoption to a same-sex couple. The bill would also allow these agencies to refuse adoptions to mixed faith couples, single parents, divorced people or anyone else whose family structure does not comport with the agency’s religious views. The exemption applies only to private agencies that do not receive state or federal funding, which may undercut the ability of rejected prospective parents from challenging the constitutionality of the law and the agencies’ actions.

Alabama Lacks Gender Discrimination Protection

Alabama does not have state laws that protect against discrimination based on sexual orientation or gender identity. Prospective parents, or other LGBT persons experiencing discrimination, lack state law recourse to pursue legal action. They can, however, often resort to federal law. Federal anti-discrimination laws do not explicitly include gender identity or sexual orientation as grounds for a protected class, although previous federal court rulings have found that sexual orientation in many instances is covered by statutes that prohibit discrimination based on gender.

Legal scholars tend to agree that the Supreme Court case protecting the rights of same-sex couples to marry also covers the right for same-sex couples to adopt. But, the shifting nature of the Supreme Court’s membership has brought into question how far Obergefell extends. Conservative legislators may test the waters of banning same-sex adoptions, and already in Alabama religious exceptions are recognized; whether the Court will logically extend the marriage protection to adoption remains to be seen.

Supreme Court Rules Alabama Must Recognize Same-Sex, Second-Parent Adoption from Other State

In a 2016 decision, the Alabama Supreme Court attempted to circumvent the need to recognize a same-sex adoption. The case of V.L. v. E.L. concerned two women who had been in a committed relationship for many years but never married. E.L. gave birth to three children during the relationship. V.L. wanted to be considered a legal parent to the children but, at the time (before same-sex marriage was legalized in Alabama), Alabama was not favorable to the idea of same-sex adoption outside of marriage. On advice of counsel she petitioned for and received full parental rights from a court in Georgia, without E.L. having to give up her rights.

The couple later split up and disputed custody over the children. V.L. pointed to the Georgia adoption order as support for joint custody, and the Alabama family court agreed. The Alabama Supreme Court tossed that order out, finding that the Georgia court had misapplied Georgia law. The Alabama Court ruled that under Georgia law the court should not have permitted the second mother to adopt without forcing the birth mother to relinquish her parental rights.

The United States Supreme Court ultimately overruled the Alabama Supreme Court, finding that Alabama was required to give “full faith and credit” to the adoption order issued by the Georgia court, regardless of Alabama law or the Alabama court’s interpretation of Georgia law. The case was hailed as a victory for same-sex adoption advocates who worried that Alabama’s ruling might lead courts in other states to simply ignore same-sex adoption orders from different states with more inclusive laws.

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