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County attorneys can’t refuse to help gays with adoptions

In this stock photo, a lesbian couple holds their baby.

In this stock photo, a lesbian couple holds their baby.

Gov. Doug Ducey vetoed legislation Monday which would have allowed county attorneys to refuse to help with adoptions, setting the stage for a legal fight over whether gays have the same right to assistance as heterosexuals.

The legislation sought by Maricopa County Attorney Bill Montgomery would have repealed the current requirement that all county attorneys provide free legal aid to couples seeking to adopt. Montgomery argued that his office needed the flexibility to save money.

That was not enough to convince Ducey.

“My concern is that this law could potentially reduce the number of adoptions,” the governor wrote in his veto message.

Ducey made no mention that the legislation had become a lightning rod for gay rights advocates after it was discovered that Montgomery, whose office had lobbied for the legislation, had refused to help a gay couple complete an adoption.

The two women at issue were married in California. Last year, one gave birth to a child conceived through artificial insemination.

But because Arizona did not recognize same-sex marriages, the other woman was not considered a parent. And efforts by the other woman to adopt went nowhere because Arizona law said only a husband and wife could jointly adopt a child.

After the federal court struck down Arizona’s gay marriage ban, the couple sought to complete the adoption with the legally required help of the county attorney’s office. Montgomery refused.

Jerry Cobb, Montgomery’s press aide, said when his office lobbied to repeal the mandate to help, it was not about sexual orientation but simply about conserving his agency’s budget for higher priorities.

What the veto means, though, is the law remains as is: Montgomery – and the other 14 county attorneys – “shall prepare the adoption petition and act as attorney without expense to the prospective adoptive parent.” But Cobb said he doesn’t see his boss going along, at least in the case of same-sex marriages.

Cobb acknowledged that a federal judge in Arizona ruled last year that Arizona’s law limiting marriage to a man and a woman is void and unenforceable.

But Cobb pointed out that some states are still fighting the issue and the U.S. Supreme Court has yet to weigh in. More to the point, he argued that the federal court ruling affects only who can marry, not who can adopt.

“He’s not litigating ‘marriage,”” Cobb said.

At least not yet.

“Lambda Legal stands ready to litigate this if clear thinking can’t be brought to bear within that office,” said Jennifer Pizer, attorney for the gay-rights legal action group. She said Montgomery cannot deny Arizonans equal treatment by his office based on their sexual orientation.

And Pizer said if the case goes to court and Montgomery loses, state taxpayers will pick up the tab for her legal fees.

Cobb was unconvinced his office will lose the lawsuit.

“Arizona law … says there is no right to adoption, for any parent,” he said.

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