The former head of the state’s child safety agency said Monday it was Attorney General Mark Brnovich and not he who precipitated a February decision to stop allowing married gay couples to jointly adopt or become foster parents.
Charles Flanagan said Monday the Department of Child Safety was perfectly content living with the advice it had received last fall from former Attorney General Tom Horne that it should treat all married couples the same. That followed a federal court ruling voiding Arizona’s constitutional amendment limiting marriage to one man and one woman.
What that meant is that children could be placed jointly in the homes of gay couples who were wed just as the state has been doing for years with heterosexual couples.
It also permitted joint adoption of children by married gay couples. Prior to that, only one person in the household could be listed as the adoptive parent.
In February, however, Assistant Attorney General John Johnson sent a letter to Beth Broeker, the deputy general counsel for DCS, informing her that his boss, Brnovich, who replaced Horne in January, had a different opinion. Based on that – and what Flanagan said was being led to believe that was the position of Gov. Doug Ducey – he halted the practice.
In discussing the February advice last month, Kristen Keogh, spokeswoman for Brnovich, said it was not something that her boss had simply come up with out of the blue.
“We were asked to provide clarification on preference statutes in light of the Supreme Court taking up the issue of same-sex couples adopting foster children,” she said at the time. Those statutes, adopted in 2006, adopt, spell out that, everything else being equal, preference in adopting a child “shall be with a married man and woman.”
“We did offer the advice,” Keogh continued, advice based on Brnovich’s belief that the issues remain in legal limbo until the U.S. Supreme Court rules.
Flanagan said Monday that Keogh “flat-out lied.”
He said he was quite comfortable relying on Horne’s opinion until Brnovich, through Johnson, provided the unsought and uninvited advice. And Flanagan said he had no reason to seek what would amount to a second opinion.
“Nobody in my administration contacted the Attorney General’s Office,” he said, with no problems implementing the policy as Horne advised.
“We got unsolicited advice from John Johnson on Feb. 2 which was shocking to us since we didn’t ask for it and didn’t believe it was accurate,” Flanagan said.
But Flanagan, replaced later that month by Ducey for other reasons, said he complied because “it was written in a way to imply that the attorney general and the governor were on the same page, and that it was direction more than advice.”
That was not the case.
Ducey said he was not even aware of the February change of policy until asked about it last month. And within 24 hours the governor overruled the policy, telling Greg McKay, who had replaced Flanagan several days after the February memo, to restore the policy to what it was before that.
“I have made it abundantly clear since day one that my administration is unambiguously and unapologetically pro-adoption,” the governor said in a prepared statement. “With 17,000 children under the state’s care, we need more adoption in Arizona, not less.”
The governor specifically ordered DCS “to immediately ensure that all legally married couples in Arizona are able to jointly serve as foster parents and adopt.”
Flanagan said he could only speculate why Brnovich chose to intercede in a decision he believed already had been settled.
Ryan Anderson, who is Brnovich’s communications chief – and Keogh’s supervisor – would not discuss the genesis of the advice offered in February, nor why his boss offered it.
“We’ve said everything we’re going to say on this matter,” Anderson said. “We’re not interested with a back-and-forth with Mr. Flanagan.”
Brnovich has previously said his advice had nothing to do with his own beliefs about gay rights but instead was based on his interpretation of the law.
He said the question of whether gays can wed is far from settled, with the U.S. Supreme Court expected to rule by the end of June on bans in some other states similar to what remains, unenforced, on Arizona’s books.
Brnovich also said it may be irrelevant whether gays can marry. He pointed out that other sections of law not challenged specifically say that only a husband and a wife can jointly adopt a child, a law he contends remains in effect even if gays can wed.
But Pima County Attorney Barbara LaWall, however, said once the ban on same-sex marriage was overturned, applying different rules to gay couples amounted to “outright discrimination” and was “repugnant.”
Both Ducey and Brnovich were endorsed in their primary and general election campaigns by Cathi Herrod, president of the Center for Arizona Policy. She has been at the forefront not only of the state’s ban on same-sex marriages but any other legislation or policy to extend to married gay couples the same rights as exist for heterosexual couples.
Ducey’s decision to overturn Brnovich’s advice put the governor at odds with Herrod on that issue.