UPDATED 12:05 p.m., noting grant of review of a new case on Indian rights.

In its first action on a case on the parental rights of gays and lesbians since it allowed same-sex marriage, the Supreme Court on Monday gave a temporary victory to an Alabama woman who lost her right to adopt three children she had been raising with her same-sex partner before the couple split up.  The Justices’ order blocks for the time being an Alabama Supreme Court order taking away the rights she had won to the children in a Georgia court while the women were still sharing the role of parents.

The Court issued that order following the release of other orders earlier in the morning.  Among those orders, the Court took on a case on Indians’ rights, this time a test of whether a member of a tribe can be labeled a repeat domestic violence offender in federal court based upon convictions without a defense lawyer in tribal court.  That dispute is expected to be argued in March.

In the Alabama adoption case, the two women are not married, and thus the Court’s order does not directly implicate the right to same-sex marriage recognized by the Court last Term in Obergefell v. Hodges.  Still, the Alabama dispute does move the Court into a new phase of family law for same-sex couples, and the final outcome, when it emerges, could affect married couples as well as those in non-marital partnerships.  The case is known only by the initials of the two women involved — V.L. v. E.L.  The three children are ages ten to twelve.

While the Justices’ order will not allow enforcement of the Alabama court’s ruling denying V.L. any parental rights, the Court did not specify what will happen in the meantime on the woman’s separate request that she be given temporary rights to visit the three children.  In filings with the Court, the lawyers for the two women disputed what the effect on visitation rights would be from an order like the one issued Monday.  V.L. claims her visitation rights will be restored, but E.L. does not agree.  It apparently will be up to state courts to say who is right on this point.

In coming weeks, the Court will consider whether to grant full review of the adoption controversy.  The order blocking the state court decision will continue in effect until the Justices decided whether to grant V.L.’s pending petition (docket 15-648).  V.L.’s claim to a parental role with the children is supported by a legal guardian appointed in state court for the children.  The guardian had told the Court the children would be harmed if the Alabama court order was not put on hold.

V.L. is not the birth mother of the three children; E.L. is.  But V.L. told the Court that E.L. had joined in supporting her adoption of the children, approved by a Georgia court.  While the couple lives in Alabama, they set up a temporary home in Georgia in order to seek an adoption order in a state they regarded as more accommodating of same-sex parents.

The legal dispute focused on whether the Constitution’s Full Faith and Credit Clause required the Alabama court to respect the Georgia court’s adoption order.  The Alabama court refused to enforce the Georgia adoption order.  It did so by interpreting state law in Georgia to provide that a same-sex parent who was not the biological mother of a child may not adopt the child unless the partner who is the birth mother formally gave up all of her own parental rights.  V.L. challenges that interpretation of Georgia law, along with her broader claim that Alabama had a constitutional duty to respect the Georgia adoption order.

Nothing further will happen on the case in the Supreme Court until the Justices make up their minds for or against full review.  That is not likely to happen for several weeks.

The new Indian rights case involves a member of the Northern Cheyenne Tribe, which has a large reservation in southeastern Montana.  Michael Bryant, Jr., has been convicted several times in tribal courts on various misdemeanor charges of domestic assaults, including conviction in 1999 and 2007 of physically assaulting his live-in girlfriend.  He has been sentenced to several prison terms, all for less than one year each.  He is too poor to afford a lawyer, and thus did not have one in any of the tribal court cases.

In February 2013, he attacked his girlfriend again and, three months later, assaulted a woman who was living with him at the time.  He was then charged in federal court with two counts of violating the law making it a federal crime to be a habitual domestic violence offender.  Congress passed that law in 2005 out of concern over a serious problem of assaults on women on Indian reservations.  It defines the federal crime as one who commits a new assault on a woman after being convicted twice before of such crimes, in federal, state, or tribal court.

In Bryant’s case, federal prosecutors based the charge on his two convictions, without a lawyer, in tribal courts.  He sought to have the charge dismissed, arguing that it violated his Sixth Amendment right to a lawyer to rely on any tribal court trial in which he had no attorney.  That plea was rejected by a federal trial court, and by the U.S. Court of Appeals for the Ninth Circuit.  Rehearing en banc was denied, but over the dissents of eight appeals court judges.

All of the judges who took part in the panel ruling or denial of en banc review said the issue needed to be sorted out by the Supreme Court, because the ruling conflicted with decisions of other courts of appeals and with a ruling by the Supreme Court on the use of uncounseled convictions in later federal court cases.

In another action on Monday, the Court — in a summary ruling without briefing and oral argument — reaffirmed by an apparently unanimous vote its prior rulings that a federal court, reviewing a state judge’s removal of a juror in a capital murder trial, must be cautious in second-guessing such state rulings that are based upon ambiguous comments by a potential juror about imposing a death sentence.  That decision came in a Kentucky murder case, White v. Wheeler.

The Court chose also to bypass an appeal by the city of Los Angeles seeking clarification of the right of police officers to limited legal immunity if they shoot an individual who is a criminal suspect to keep him from fleeing.  The Court gave no reason for denying review in Los Angeles v. Contreras.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Temporary win for lesbian parent; Court to rule on Indian rights (UPDATED), SCOTUSblog (Dec. 14, 2015, 11:29 AM), https://www.scotusblog.com/2015/12/temporary-win-for-lesbian-parent/