Less than two weeks after a federal judge ordered him to comply with her ruling legalizing same-sex marriage, Mobile County's probate judge has indicated he will not process a couple's adoption petition until after the Supreme Court decides another case.
That has put Cari Searcy's second-parent adoption in legal limbo and prompted her lawyers to filed a new lawsuit Tuesday in federal court asking for an order prohibiting Probate Judge Don Davis from "directly or indirectly" enforcing the state's same-sex marriage ban that the federal judge struck down last month.
It was Searcy's inability to adopt the boy that she and spouse Kim McKeand have raised since birth that prompted them to challenge Alabama's ban on same-sex marriage.
David Kennedy, one of the couple's lawyers, expressed exasperation at Davis' decision. He noted that the U.S. Supreme Court allowed U.S. District Judge Callie V.S. "Ginny" Granade's order to take effect and that Granade handed down a separate order on Feb. 13 specifically instructing Davis to stop enforcing the gay marriage ban.
"I'm disappointed. The United States Supreme Court made a decision with the ruling in the Searcy case," he said. "We don't think that it's fair or equitable to Cari Searcy to wait until the Supreme Court has ruled on some 6th Circuit (U.S. Court of Appeals) case."
Davis declined through a spokeswoman to comment, citing pending litigation. His private attorneys did not immediately return calls seeking comment.
On Friday, Davis issued an "interlocutory decree" granting Searcy temporary parental rights, including the authority to consent to necessary medical treatment. Such temporary orders are standard in second-parent adoptions until the court can convene a hearing to review any potential objection to a permanent adoption.
Those final hearings typically last about 15 minutes, according to lawyers familiar with those proceedings.
But Davis included a paragraph stating, "It is further ORDERED by the Court that this Decree is qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it."
In addition to the court order instructing Davis to grant the adoption without further delay, the lawsuit also asks for compensatory and - if the judge deems it appropriate - punitive damages, as well as legal fees.
A friend from Florida agreed to become a sperm donor, and McKeand gave birth to her son on Dec. 30, 2005. The father waived his parental rights, and McKeand and Searcy have raised the child ever since.
Searcy has been a "legal stranger," though, because Alabama law did not recognize her 2008 marriage to McKeand. Davis cited Alabama's same-sex marriage ban in rejecting Searcy's second-parent adoption, and a state appeals court later upheld the decision. So McKenad and Searcy sued last year.
But with Granade's Jan. 23 ruling, the plaintiffs' attorneys argue, Davis is obligated to treat the adoption petition as he would from a heterosexual married couple.
"There is no articulable reason why Searcy is not allowed to adopt (the child) other than the fact that she is a woman married to another woman. ... There can be no legitimate question on the issue, and Hon. Don Davis has no legitimate reason for continuing to abide by the fiction that the Alabama Sanctity Laws have any effect in Alabama," the suit states.
Kennedy said the temporary order issued by Davis offers Searcy some protection but does not necessary guarantee that she would get custody if McKeand were to die suddenly between now and the time the high court is expect to settle the same-sex marriage question once and for all sometime this summer. Any number of relatives could challenge Searcy for custody and she could at the very least have to fight in court, Kennedy said.
"That's actually very much an open question," he said. "It's the reason we filed the (original) lawsuit."
Updated at 11:44 a.m. to include additional details about the lawsuit.