Adoptive couple vs Baby girl (take 2)

I had written about this Supreme Court case a few weeks ago.  The case involves the custody of little girl.

The mother's side:  The girl's mother, a Hispanic, already has other children.  She wanted to give her daughter up from adoption.  She met with and selected the adoptive parents who became very close.  In fact, the adoptive parents were in the delivery room with her and the adoptive father cut the umbilical cord.  Months before the baby's birth, the the mother texted the birth father, who agreed to hand her sole custody.  He never paid alimony.  He didn't go for the birth.  And, after the birth, he signed away his rights.  Then, when he realized that the baby was being given for adoption, he invoked his Cherokee heritage and demanded custody.  After two years of court battles, the baby was yanked from the adoptive parents and handed to a father she had never met.  The father is only 2% Cherokee and because of that, he got custody in a case where no other father could have got custody.\ 

The father's side:  He had dated the mother of his daughter on and off since they were in their teens.  He finally proposed to her and a few months later was overjoyed to discover she was pregnant.  However, soon after their relationship soured and his fiancee broke off the relationship, wouldn't return his calls and would not respond to his texts.  Then out of the blue she texted him one day asking him to sign over his rights.  She did so not just once but several times.  He had learned by this time that he was being deployed to Iraq and so he decided that its better the girl is with the mother and that they could patch up when he got back.  He texted back saying OK, under the impression that he was merely handing her the custody.  Six days before he was deployed, he gets served the papers for handing over his rights and after he signs the papers he discovers that he has not actually signed his rights to the mother but effectively assented to the adoption.  He's horrified.  He gets a lawyer and fights tooth and nail for his daughter.

What's at stake.  In the worst case for Indians, if being Indian is seen as a racial issue, then a ruling in this case could invalidate every Indian law on the books.

Here's a wonderful summary of the case.  A decision by the supreme court is expected later this month.

Parental rights or discrimination?

One of the fascinating cases argued before the US Supreme Court this week was Adoptive couple v baby girl.  Here's how Wikipedia summarizes the situation: 

"Dusten Brown and Christina Maldonado were engaged to be married. Brown was a member of the Cherokee Nation and serving in the United States Army at Fort Sill, Oklahoma and the father of one other child. Maldonado was a non-Indian single mother of two. In Jan. 2009, Maldonado became pregnant, On learning Maldonado was pregnant, Brown began to press her to go ahead and marry him, but in May 2009, Maldonado broke off the engagement by text message and cut all communications with Brown. A few months prior to the baby's birth, she began to work with an adoption attorney to place the child with Matt and Melanie Capobianco of South Carolina. Although Oklahoma law requires that an Indian tribe be notified, Maldonado's attorney misspelled Brown's name and provided an incorrect date of birth, so the tribe was not put on notice of the proposed adoption. After receiving permission from Oklahoma authorities, based in part on the misidentification of the child as Hispanic instead of Native American, the Capobiancos took the child to South Carolina. Four months after the birth of the child and just days from deployment to Iraq, Brown was served with notice of the proposed adoption. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown, once he realized what he was signing, immediately tried to retrieve the document, and failing that, contacted the Judge Advocate General at Fort Sill for assistance. Seven days after being notified of the proposed adoption by the Capobiancos, Brown had obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act and he deployed with his Army unit to Iraq." 

If you read the description, the case seems to be cut and dry and weighted towards the father.  However, if you listen to the audio of the argument, what you realize is that its more complicated.

The issue is that Brown did not pay any child support and did not participate in any way during pregnancy or birth of his child.  Under state law any other person would not have any custodial rights and could not have challenged the adoption,  Brown, however, is about 1% Cherokee, or as Breyer quipped, he had an ancestor around the time of Washington who was Cherokee, and so, he could invoke the Indian Child Welfare Act to block an adoption which no other father in his position could.

The issue before the SCOTUS is a matter of law and not of the specifics of this case.  On the one hand, the tone of the questioning particularly by Scalia and to a lesser extent Sotomayer and Ginsburg seemed to be inclined to view the situation as a biological father wanting to assert his rights and they seem to believe that a biological father's rights should outweigh that of the adoptive parents.  On the other hand, Alito, Breyer and Roberts were troubled by the fact that such a right was being given exclusively to an Indian parent and they wanted to know what triggers the right and what would happen in the case of a sperm donor, an absconding parent or even a rapist, if the only major consideration is biology and a drop of Indian blood, as Brown is arguing.

Here is scotusblog.com's analysis of the arguments.  I am with Kennedy, who at one point wished for Solomon.

Momentous decisions by the Supreme Court

This week, the Supreme Court handed out four very momentous decisions.

• Shelby County v Holder:  Section 4 of the Voting Rights Act on 1965 was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures.  In a 5-4 decision, the Supreme Court revoked section 4.

There is a lot of hand wringing about this decision.  The liberal consternation is because according to the 15th Amendment of the Constitution:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation."

So, liberals suggest that this law, which passed with near unanimous support in Congress derives its legitimacy from section 2 of the 15th amendment.

The decision is best explained at this post.   

To understand the decision we need to understand that just a week before in the Pyrrhic 7-2 victory for liberals in Arizona v. The Inter Tribal Council of Arizona, Justice Antonin Scalia takes pains to explain that the right to decide who can vote rests with the states.  It's part of states' sovereignty.   

In this decision, what Justice Roberts seems to be arguing is that: (a) its extraordinary to override states' prerogative in a discriminatory manner, (b) the law was justified when passed because of extraordinary circumstances, (c) circumstances have changed to a point where the states being discriminated against can't actually be shown to be materially worse than many not under such scrutiny.   

So, in this analysis its irrelevant whether racial discrimination still exists, whether racial discrimination in voting still exists or even whether racial discrimination in voting more common in Section 5-covered jurisdictions than elsewhere.  Instead, to override state sovereignty, what needs to be shown is that the original rationale for section 4 still exists.

The way the decision is worded, it appears to leave preclearance as constitutional and restricts its challenge the formula.  One view, proffered by the Conservatives, suggests that the opinion dooms Section 5 as well, as it suggests that any form of preclearance is wrong.  My own reading is that it might not be exactly right.  If the standard being applied was uniform, based on recent data, and clearly designed to enforce the 15th Amendment it may not fall foul of the Conservatives.  So, arguably, if Congress passes a law that subjects any jurisdiction which breaches a certain threshold of discrimination to a preclearance standard may be constitutional.

• In a 5-4 decision in United States v Windsor, the Supreme Court ruled DOMA unconstitutional.  Under this ruling, wherever the words, husband, wife, spouse or marriage appears in Federal law, the Federal government must defer to the states' definition, i.e. if the states recognize gay marriage, so must the Federal government.  This does not, however, necessitate states which currently ban gay marriage to recognize gay marriage.

• In yet another 5-4 decision in Hollingsworth v Perry, Chief Justice Roberts was joined by Justices Breyer, Ginsburg, Scalia and Kagan in ruling that the proponents did not have standing to appeal the California Supreme Court's decision to rule the California's Proposition 8 banning gay marriage unconstitutional.  With this decision, as of August 1, 2013 gay marriage will be permitted in the District of Columbia and thirteen states: California, Connecticut, Delaware (where a new law takes effect July 1), Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island (also Aug. 1), Vermont, and Washington.

• In a 5-4 decision on Adoptive couple vs Baby girl the Supreme Court essentially ruled that the law in question, the Indian Child Welfare Act, was designed to protect existing families and not to protect the rights of absentee fathers.  In this case, since the father had not shown any interest in the child until much later, he had essentially relinquished his rights and there was no familial relationship to protect and so it wasn't covered by the Indian Child Welfare Act.  Justice Sotomayer, Ginsburg and Kagan dissented, pointing out the the court's ruling was too broad and would set unwanted precedents for exclusion. Justice Scalia also dissented pointing out that this was a case where there was a biological father who wanted to have a relationship with his daughter.  Now the drama continues as the father claims that the ruling means that others in the Cherokee nation have rights while the adoptive parents want the girl immediately.

It is fascinating to see the conservative justices try to explain their opposition to repeal of DOMA.  After all, DOMA infringes on state rights and is discriminatory.  On the liberal side, while I understand their consternation with the Shelby County v Holder, their argument would suggest that the 15th amendment gives the Federal government unfettered right to intervene in a discriminatory manner in voting, despite the fact that they unanimously agree in  Arizona v. The Inter Tribal Council of Arizona that its a state right.  Surely, that can't be right!  Remember Shelby County v Holder does not rule that the Voting Rights Act is unconstitutional. It does not even, as yet, rule the preclearance requirement in section 5 unconstitutional.  It merely suggests that using a formula for intervention based on the realities in 1960s is unconstitutional as it can't be sufficient justification for overriding state rights.