Matheny said that if that were true “then I don’t have a leg to stand on as far as success on the merits.” However, he said his arguments over the plaintiffs lacking standing to sue were still valid.
The plaintiffs put on witnesses who testified about their desire for adoption, including Donna Phillips, a Rankin County resident who wants her wife Jan Smith to share legal custody of Phillips’ daughter by birth, now 8.
Phillips said she feared her parents would seek custody if she died, causing her to leave the Army National Guard in 2009 to avoid further deployments abroad. Pausing to wipe away tears, Phillips said her parents had not spoken to her since she filed the lawsuit.
“There’s just a constant worry that if anything were to happen to me, Jan would not have the ability to make decisions” for the child, she testified.
The couple earlier tried to arrange an adoption in Florida, but said adoption agencies in Mississippi refused to conduct a required home study, citing fears that the Department of Human Services would retaliate against them. After the Supreme Court ruling this summer, the couple had a lawyer inquire if an unnamed Rankin County chancery judge would approve an adoption in light of the changed law. The lawyer reported that the judge’s answer was “Not ‘no,’ but ‘hell no.’ ”
Matheny admitted that the plaintiffs’ stories have “emotional appeal” and “emotional impact.” But he said the proper path is for Phillips to go to chancery court and appeal if she loses.
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