Family Values At The Courthouse
NCFPC Files Amicus Briefs in Two Cases

Family North Carolina Magazine—Summer 2010

Compiled by Brittany Farrell

Defending Adoption
The North Carolina Family Policy Council (NCFPC) filed an Amicus Brief March 2nd in the case of Boseman v. Jarrell, an appeal before the State Supreme Court that will likely determine whether same-sex couples can legally adopt children in North Carolina. In the brief, the NCFPC along with NC4Marriage, The American College Of Pediatricians, The Christian Action League of North Carolina, and The Christian Family Law Association, asked the North Carolina Supreme Court to rule that North Carolina adoption statutes do not allow adoptions by same-sex partners. They also asked the Court to end the practice of allowing unrelated third parties to obtain custodial rights of minor children merely because the child’s parent has allowed the third party to establish a relationship with the child.

State Senator Julia Boseman filed the suit against her former lesbian partner, Melissa Jarrell, seeking custodial rights to Jarrell’s biological son. While she and Boseman were cohabiting partners, Jarrell conceived the boy by artificial insemination. Through the use of an improper legal device known as “second-parent adoption,” Boseman obtained a decree of adoption from the Durham County District Court. The adoption has since been upheld by the District Court in New Hanover County and the Court of Appeals. Jarrell, the child’s biological mother, is now estranged from Boseman, and seeks to have the adoption declared void, so she can retain full custody of her child. She is appealing the Court of Appeals’ decision that upheld the adoption, and she filed her brief in the Supreme Court proceeding on February 26th.

North Carolina adoption laws allow for three scenarios in which adoption may take place—an agency places a relinquished child for adoption;¹ a step-parent, who is legally married to the child’s parent, adopts the child;² or the child’s parents directly place the child into the adoptive parents’ family, by severing their parental rights.³ In all cases, statutes allowing adoption seek to place adopted children in a premier childrearing environment consisting of a mother and a father who are married. When an agency or the biological parents place the child for adoption, North Carolina statutes state that: “A decree of adoption effects a complete substitution of families,” and “severs the relationship of parent and child between the individual adopted and that individual's biological parents. After the entry of a decree of adoption, the former parents are relieved of all legal duties and obligations due from them to the adoptee.”⁴ The biological parents must sign a consent form stating that they are severing their parental rights as part of the adoption proceeding. These requirements are intended to protect the child from the unwanted interference of the former parent, and thus from having two families who are hostile to each other.

In this case, the District Court granted a Decree of Adoption that allowed the biological mother, Jarrell, to maintain the parent and child relationship, along with her parental rights and duties, between herself and her child, while establishing a parent and child relationship between Boseman and Jarrell’s child. This has been called “second-parent adoption,” which is commonly defined as: “An adoption by an unmarried cohabiting partner of a child's legal parent, … especially an adoption in which a lesbian, gay man, or unmarried heterosexual person adopts his or her partner's biological or adoptive child.”⁵ The North Carolina adoption statutes do not specifically allow second-parent adoptions, but they have become the vehicle used by same-sex couples to get around adoption laws.

Although Boseman lives in Wilmington, she obtained her adoption in Durham, apparently because the Court there is sympathetic to same-sex partner adoptions. Last fall the Raleigh News & Observer reported that, “Hundreds of gay couples in North Carolina have turned to judges in Orange and Durham counties to give them what most courts won't: the legal right to be a parent to their partner's child.”⁶

The Amicus Brief (or friend of the Court brief) was filed on behalf of the NCFPC and the other non-profit organizations by four North Carolina allied attorneys for the Alliance Defense Fund (ADF). “This was a case of collusion by the parties and the District Court Judge to ignore and turn on its head the requirements of the adoption statutes,” said Tami Fitzgerald, one of the four ADF-allied attorneys. “The Supreme Court must decide whether the District Court can override the public policy of the State clearly expressed by the General Assembly in the statutes regulating adoption and marriage. We believe that the District Court has overstepped its authority, and we are hopeful that the Court will make clear that unmarried cohabitants—whether homosexual or heterosexual—cannot legally adopt a minor child in North Carolina.”

Defending Prayer
The North Carolina Family Policy Council recently joined four groups from four states in filing an amicus brief supporting the Forsyth County Board of Commissioners’ appeal to the U.S Court of Appeals for the Fourth Circuit in a lawsuit challenging the Board’s policy for prayer before their meetings. The brief, which was filed May 26th, is one of seven from groups across the country that have been filed in support of the Board’s prayer policy, which is being defended by the ADF. Those seven briefs were filed by the Rutherford Institute of Charlottesville, VA, the National Legal Foundation of Virginia Beach, VA, the Retired Judges of America of Baton Rouge, LA, the Independence Law Center of Harrisburg, PA, the Foundation for Moral Law in Montgomery, AL, and the Justice and Freedom Fund of California. Joining the NCFPC in its brief are the North Carolina Partnership for Religious Liberty, the Palmetto Family Council, the Family Foundation of Virginia, and the Family Policy Council of West Virginia. The groups are described in the brief as “independent, nonpartisan, and nonprofit research and education organizations dedicated to the preservation of religious liberties and traditional family values.”⁷

The lawsuit, Joyner v. Forsyth County, is part of an ongoing campaign by the American Civil Liberties Union (ACLU) and its allies to pressure local governments into changing their public prayer policies, which allow local clergy members from a variety of denominations to open government meetings with prayer. The ACLU-NC is challenging the prayer policy on behalf of two Winston-Salem residents, who allege that it is unconstitutional because it allows clergy members to pray to specific deities, such as “in the name of Jesus.” The ACLU filed the lawsuit in the U.S. District Court for the Middle District of North Carolina in March 2007, and the Forsyth County Board of Commissioners voted four to three in April 2007 to defend the policy with the help of ADF. ACLU attorney Katherine Parker told the Winston-Salem Journal, “We feel that our case is as strong as it could be as far as precedents in the 4th Circuit and the Supreme Court have said, that sectarian prayer is unconstitutional and against the First Amendment.”⁸

The NCFPC brief pointed to the U.S. Supreme Court’s decision in Marsh v. Chambers,⁹ which “reasoned that the practice of opening legislative sessions with prayer was ‘deeply embedded in the history and tradition of this country’ and therefore upheld the Nebraska legislature’s practice of beginning each session with prayer offered by a state-paid chaplain.”¹⁰ As part of this historical consideration, the brief went on to state that Congress, state legislatures, and “hundreds and potentially thousands of local government bodies across the country, like Forsyth County, open their meetings with prayer.”¹¹ Tellingly, the brief noted that, “In the last year alone, at least 23 Congressional prayers have been offered in the name of Jesus Christ, and one study concluded that between 1990 and 1996, over 250 such prayers included supplications to Jesus Christ.”¹² The brief emphasized, “Forsyth County’s invocation policy, which does not compel but merely allows sectarian prayers, permits nothing more than what Congresses and presidents have allowed—even mandated—for over two centuries.”¹³

The NCFPC brief concluded, “A per se rule prohibiting the mention of a particular deity is a rigid and formalistic approach which is not mandated by the Court’s precedents and which evinces a government hostility to religion and a betrayal of our nations’ heritage.”¹⁴

Endnotes

1. N.C. Gen. Stat. § 48-3-201(a) (1). 2009. PDF
2. N.C. Gen. Stat. § 48-4-101. 2009.
3. N.C. Gen. Stat. § 48-3-201(a)(2), (3), and (4). 2009.
4. N.C. Gen. Stat. § 48-1-106(a)(c). 2009.
5. Black’s Law Dictionary. 8th edition, 2004, adoption.
6. Locke, Mandy, “Triangle Judges Aid Gay Adoption,” News & Observer, 22 August 2009.
7. Brief for the North Carolina Family Policy Council, Palmetto Family Council, the Family Foundation of Virginia, the Family Policy Council of West Virginia, and the North Carolina Partnership for Religious Liberty as Amici Curiae, p. 1, Joyner v. Forsyth County, Supreme Court of North Carolina (2010). PDF
8. Young, Wesley, “Groups support Forsyth in prayer appeal,” Winston-Salem Journal, 9 June 2010. <http://www2.journalnow.com/content/2010/jun/09/groups-support-forsyth-in-prayer-appeal/news-regional/>
9. Marsh v. Chambers, 463 U.S. 783 (1983).
10. Brief for the North Carolina Family Policy Council, Palmetto Family Council, the Family Foundation of Virginia, the Family Policy Council of West Virginia, and the North Carolina Partnership for Religious Liberty as Amici Curiae, p. 3, Joyner v. Forsyth County, Supreme Court of North Carolina (2010).
11. Ibid., p. 4
12. Ibid., p. 6.
13. Ibid., p. 8.
14. Ibid., p. 15.