The Indiana Law Blog reports, "The Indiana Supreme Court, apparently late yesterday, denied transfer in the Morgan County same-sex adoption case, In the Matter of Infant Girl W." The vote to deny transfer was 4-1. Justice Brent Dickson sharply dissented to the Court's decision to deny transfer. He writes:
By declining to accept transfer of this case, this Court is missing a valuable opportunity to address and resolve important questions left undecided in our recent decision in King v. S.B., (citation omitted). The appellant here is seeking transfer following a 2-1 decision of a panel of the Court of Appeals that approved the eligibility of a same-sex couple to adopt a child. In re Infant Girl W., (citation omitted). When a related controversy was before us in King, this Court issued a narrow decision permitting further consideration of a lawsuit filed by a former same-sex domestic partner seeking the equivalent of adoption rights to a child born of her former partner. The majority declined to consider the dissent's reasoning that existing Indiana statutory adoption law prevails over court-made common law; that judicial
decisions should not intrude into the legislature's prerogative to determine public policy on social issues; and that the judiciary should not advance special policy interests that are contrary to the public policy demonstrably favored by Indiana citizens. (citation omitted).
The majority opinion in King did not reject the points asserted by the dissent, but instead left them unresolved, stating: "We do not deem ourselves to have decided the various legal issues raised by the dissent" . . .
This Court, as Indiana's court of last resort, should accept jurisdiction and resolve the important issues expressly left unresolved in King, particularly in light of the recent statutory enactment and the reasoning of Judge Najam's dissent. Of course, our denial of transfer does not constitute approval of the Court of Appeals decision and has "no legal effect other than to terminate the litigation between the parties in the Supreme Court." But by denying transfer in this case, we are missing a valuable and important opportunity to minimize uncertainty and confusion until such time as the legislature provides explicit superceding reclarification.
I would prefer for this Court to grant transfer to uphold the legislature's exclusive authority to regulate adoption eligibility and procedure and to apply Indiana's existing adoption statutes as prohibiting adoptions by unmarried couples. I thus respectfully dissent from denial of transfer.
For more information on the Indiana Court of Appeals decision, please check out AI's earlier post. This decision by the Supreme Court is further evidence of the Court's reluctance to wade into any issue pertaining to gay rights which might subject the Court to criticism from the Christian right. As long as the Court of Appeals judges are willing to take the heat for controversial, but fair rulings, "let's just leave well enough alone" seems to be the current thinking of a majority of our Supreme Court.