Amicus lector
USD law professor breaks down ICWA, DOMA cases

University of South Dakota law professor Roger Baron already has done some scholarly work on two major U.S. Supreme Court decisions that came through this week.

Baron sent out summaries Thursday of Adoptive Couple vs. Baby Girl and United States vs. Windsor, which dealt with the application of the Indian Child Welfare Act and the federal Defense of Marriage Act, respectively.

The summaries will be added to the cumulative supplement to Baron’s family law book.

With his permission, I’m reposting his take on the cases here. 

U.S. Supreme Court recognizes excepted areas to ICWA’s heightened requirements and ICWA’s placement preference in Adoptive Couple v. Baby Girl, —- S.Ct. ——, 2013 WL 3184627. 


FACTS and Lower Courts: 


Mother and Adoptive Couple.  The child’s father is an enrolled member of the Cherokee Nation.  The birth mother is non-Indian.  Their Baby Girl is only 1.2 %  (3/256 ths) Cherokee but satisfies the definition of “Indian Child” under ICWA because she is eligible for tribal enrollment. As stated in the opinion, “Birth Mother sent Biological Father a text message asking if he would rather pay child support or relinquish his parental rights. Biological Father responded via text message that he relinquished his rights.” Furthermore, “Working through a private adoption agency, Birth Mother selected Adoptive Couple, non-Indians living in South Carolina, to adopt Baby Girl. Adoptive Couple supported Birth Mother both emotionally and financially throughout her pregnancy. Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009, and Adoptive Father even cut the umbilical cord. The next morning, Birth Mother signed forms relinquishing her parental rights and consenting to the adoption.”  


Indian Father and Tribe.  In connection with the adoption proceeding, “Biological Father signed papers stating that he accepted service and that he was ‘not contesting the adoption.’ But Biological Father later testified that, at the time he signed the papers, he thought that he was relinquishing his rights to Birth Mother, not to Adoptive Couple.” The Cherokee Nation subsequently intervened in the adoption proceeding. 


Lower Courts.  Both the South Caroline trial court and Supreme Court denied the adoption due to the failure of the adoptive parents to meet the heightened burdens and placement preference imposed by ICWA. 


HOLDINGS by U.S. Supreme Court:  


The U.S. Supreme Court reversed and remanded.  This Opinion, establishing new law, held as follows:


1)      The heightened burden, found in ICWA’s §1912(f),  of showing “evidence beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” does not apply where the Indian parent never had custody of the Indian Child.  The language “continued custody” found in ICWA’s §1912(f) dictates this result which is also supported by the  BIA guidelines.


2)      The heightened requirement, found in ICWA’s §1912(d), of showing “active efforts have been made to provide remedial services … designed to prevent the breakup of the Indian family” does not apply “when an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be ‘discontinu[ed]’—and no ‘effective entity’ that would be ‘end[ed]’—by the termination of the Indian parent’s rights.”   


3)      The requirement of an adoption placement preference (favoring an extended Indian family member, within the Indian tribe or in favor of other Indian families), found in ICWA’s §1915(a) does not apply “in cases where no alternative party has formally sought to adopt the child.”  In this case, “Biological Father is not covered by §1915(a) because he did not seek to adopt Baby Girl… Moreover, Baby Girl’s paternal grandparents never sought custody of Baby Girl… Nor did other members of the Cherokee Nation or ‘other Indian families’ seek to adopt Baby Girl, even though the Cherokee Nation had notice of—and intervened in—the adoption proceedings.”


SUMMARY and Disapproval of ICWA as a “trump card.”


Summarizing its ruling in its concluding paragraph, the U.S. Supreme Court expressed disapproval for the situation where, “a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.”  The Court further observed, “If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§1912(f ) and (d) makes clear that neither provision applies in the present context. Nor do §1915(a)’s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child.” 


U.S. Supreme Court holds DOMA unconstitutional in so far as it attempts, through the imposition of a federal definition, to restrict the institution of marriage to opposite sex couples in U.S. v. Windsor, —- S.Ct. ——, 2013 WL 3196928. 

Defense of Marriage Act (DOMA).  DOMA consists of two parts: One part, codified at 28 U.S.C. § 1738C, addresses “full faith and credit” aspects concerning the obligation of each state to recognize marriages authorized by sister states.  The other part of DOMA changed the definitions of “marriage” and “spouse” as found 1 U.S.C. § 7, thereby impacting how federal laws are applied.


Federal Definition of Marriage Section of DOMA.  This decision relates only to the “federal definition” of marriage aspect of DOMA and does not address the “full faith and credit” aspect of DOMA.


Facts and lower court holdings.  The dispute in this case involves the applicability of the federal estate tax exemption for a surviving “same-sex spouse” residing in New York, one of the several jurisdictions which permit same-sex marriages.  The surviving spouse, who had paid $363,053 in federal estate tax, had been denied an exemption by the IRS.  She filed suit in federal court.  Both the U.S. District Court and the 2nd Circuit Court of Appeals held that the definitional section of DOMA was unconstitutional, ordering a refund.  The U.S. Supreme Court affirmed. 


Regulation of Marriage has been traditionally reserved to the states.  The Court recognizes this principle stating,


By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.


The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.”


Discrimination as to different types of marriage warrants careful consideration as to constitutionality.  The Court observed, 


The State’s power in defining the marital relation is of central relevance in this case. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “ ‘[D]is-criminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ “


Reach of DOMA. Through the expedient of simply changing the “definitions” of “marriage” and “spouse” in 1 U.S.C. § 7, Congress brought about an impact affecting “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law” and a “myriad of federal regulations.” 


Impact of DOMA. The Court described impact of DOMA, as applied to the situation today – where same-sex marriage has been legalized in numerous jurisdictions – as follows:


DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.


Liberty Interest Protected by the 5th Amendment.  The Court states,

What has been explained to this point should more than suffice to establish that the principal purpose and effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

Blog comments powered by Disqus

Copyright © 2011 All rights reserved.
Users of this site agree to the Terms of Service, Privacy Notice/Your California Privacy Rights, and Ad Choices