PHOENIX — Gov. Doug Ducey’s order that a state agency allow same-sex couples to adopt or become foster parents notwithstanding, Attorney General Mark Brnovich says Arizona law does not allow that practice.
But Brnovich said he won’t challenge Ducey’s Wednesday order to the Department of Child Safety revoking an agency policy of not allowing gay married couples to adopt or foster children.
The department started allowing gay couples to adopt after a federal court overturned Arizona’s gay marriage ban in October. But it went back to prohibiting the adoptions in February, after Brnovich advised that the marriage ruling didn’t change adoption law.
Brnovich press aide Kristen Keogh said Thursday her boss believes the right of gays to wed is legally separate from any other rights.
Keogh also pointed out that even the question of same-sex marriage is not finally resolved, since the U.S. Supreme Court has never ruled on the issue.
The justices are set to hear arguments from other states still fighting the gay marriage issue, and are expected to rule in June.
Even if the high court affirms the rights of gays to wed, that may not end the matter, Keogh said, because, “Marriage is different than adoption,” and there are other Arizona laws that specifically appear to limit joint adoptions to opposite-sex couples.
Keogh said the fact the governor disagrees with the attorney general does not change Brnovich’s mind.
“He is here to enforce the law, not make the law,” she said. “So whatever the law says, General Brnovich is going to uphold.”
But Keogh said her boss does not intend to contest Ducey’s directive, saying any decision will have to wait for final word from federal courts on the issues of marriage and adoption.
“Anything can happen,” she said, saying she does not foresee a challenge “at this time.”
She also said Brnovich will not comment on the governor’s decision to essentially ignore the AG’s advice.
“The governor can act on his own accord,” she said. “And we are not going to speak at this point to his decisions.”
Ducey’s order to DCS marks the third policy change on the question in less than six months.
Arizona law does not specifically bar adoptions or foster-care placement with people based on their sexual orientation. The state has long placed children for foster care and adoption in the homes of unmarried gay couples.
But those placements were done with only one person in the home listed as the person with whom the child was being placed, as Arizona law allows joint adoptions only by married couples, which became an adoption issue when the court opened the door to gay marriages.
DCS spokesman Doug Nick said Greg McKay, who took over Feb. 10 after Ducey fired former director Charles Flanagan, learned of the policy allowing gay couple adoptions shortly after taking office.
Nick said McKay told the staff “to work with the attorney general to see how to proceed.”
“That effort was ongoing,” he said, even in the face of public comments earlier this month by Ducey that the need for adoptive and foster parents trumps any concerns about their sexual orientation.
“I want to see adoptions,” Ducey said at the time. “I want to see adoptions done legally into loving homes with loving families.”
Nick also said there was no secret about the policy against joint placement with same-sex couples, saying it was known to “stakeholders,” meaning adoption agencies.
But gubernatorial press aide Daniel Scarpinato said his boss did not learn of the policy until Wednesday, when he moved quickly to revoke it.
“General Brnovich does not expect to agree with Gov. Ducey on every single issue,” Keogh said. “They have a great working relationship.”
Brnovich is not alone in his analysis that allowing gays to wed does not mean they can jointly adopt children.
Maricopa County Attorney Bill Montgomery is refusing to provide legal help to married gay couples despite a state law which mandates that county attorneys provide free legal aid to couples seeking to adopt. Jerry Cobb, Montgomery’s press aide, said the October court ruling voiding Arizona’s gay-marriage ban applies to marriage, not adoption.
Pima County Attorney Barbara LaWall, however, sees it differently. She called differentiating between gay and straight married couples “outright discrimination” and “repugnant.”