Same-sex couples wishing to become parents have a long fight ahead of them in Kentucky, where a custody dispute between separated female parents has lead appellate judges to declare that the state's ban on same-sex legal unions should also extend to adoption rights. The recent ruling constitutes a tremendous roadblock for same-sex partners who want to adopt a child or share custody of one partner's biological child.
While appellate judges in Kentucky did respect the emotional well-being of the child in this particular case by refusing to challenge the terms of an adoption that had occurred more than one year prior to the trial, they have done a great disservice to other children in the state who may be living with two parents of the same gender. The original ruling by Judge Eleanor Garber held some promise for eventually overturning the ban on same-sex adoption that currently exists on the Kentucky law books.
Indeed, many civil liberties that liberal and conservative ideologues alike now hold dear have grown out of ambitious judicial decisions at the state or national level. Perhaps the most famous of these was the Brown v. Board of Education Supreme Court decision that allowed students of different ethnoracial backgrounds to attend public school together, and thus receive truly equal opportunities in education. Recognizing an unmet need that pervaded all of American society, the Supreme Court disregarded the norm of stare decisis--letting a preceding decision stand as opposed to challenging the principles on which it was made--in favor of social progress that would ultimately benefit Americans of all backgrounds. Given that the nation recently feted the 50th anniversary of the Brown decision, it seems especially inappropriate for an appeals court in Kentucky to suggest that judicial responsibility involves only respect for prior rulings rather than a combination of analysis of judicial precedent and consideration of the best interests of the state's residents.
ACLU representatives have thus decried the ruling as harmful not only to same-sex partners, but also to their children, citing the Kentucky courts' refusal to hear additional same-sex adoption and custody cases as a violation of every child's right to the opportunity to be raised by two loving parents. Should this effective moratorium on same-sex couples adopting children ever be challenged nationally, the question of Fourteenth Amendment rights to equal protection under the law will surely play a key role in the resulting judicial discourse.