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The state Department of Human services asked federal court on Thursday to formally legalize adoption for gay and lesbian couples in Mississippi.

As debates raged over Mississippi’s controversial religious-freedom law, the attorney general’s office quietly let a deadline lapse to defend the state’s gay adoption ban, effectively killing the 16-year-old state law at midnight Tuesday. Mississippi was the only state left in the nation banning same-sex couples from adopting.

In March, U.S. District Judge Daniel Jordan issued a preliminary injunction striking down the ban on constitutional grounds following a lawsuit from three married lesbian couples. At the time, the lead attorney on the case, Roberta Kaplan, said she was unsure whether the state would take the case to a higher court.

“I’ve been at this game long enough to know that while I was hoping that they’d not appeal, and while I didn’t see any valid grounds for appeal, sometimes it’s not uncommon for your expectations to be frustrated,” Kaplan said.

“There really wasn’t any legal argument left,” Kaplan said. “The (U.S.) Supreme Court could not be clearer at this point, that gay couples have a right to be treated equally with respect to their families.”

Neither the state attorney general’s office nor the governor’s office responded to requests for comment.

For the three couples in the case, the decision not to challenge was met with elation. Brittany Rowell, one of the six plaintiffs, said she found out shortly after midnight and emailed the others.

“It’s a huge relief, really,” Rowell said. “We got the decision a few weeks ago, and since then it’s been a waiting game. We’ve been holding our breath, waiting to see if the state would challenge it.”

Rowell and her wife, Jessica Harbuck, are the only couple in the lawsuit that does not already have children. Another couple, Susan Hrostowski and Kathy Garner, had sued to give Hrostowski the right to adopt Garner’s biological son, Hudson. The third couple, Janet Smith and Donna Phillips, were suing for Smith’s right to adopt Phillips’ daughter, Hannah Marie.

“So it’s not important just as a matter of precedence,” Kaplan said. “It’s important on a practical level that we have two clients who now have no barrier to adopt their own kids.”

At the time of the Supreme Court’s ruling legalizing gay marriage in June 2015, a handful of other states also had gay adoption bans on their books. But all of these bans were based on the idea that unmarried couples were forbidden to adopt, according to Josh Kaye, another attorney representing plaintiffs. Once marriage was legal in those states, adoption was as well, Kaye said.

Mississippi’s law was unique because it included a second clause that forbade same-sex couples from adopting.

As a result, Rowell said she and her wife, who plan to adopt through the state Department of Human Services, were unable to even begin their foster care paperwork until today.

“The law was so black and white, it was nine words, ‘Adoption by couples of the same gender is prohibited,’ that it’s not something we ever really tried to seek out and do because we’re not in the business of breaking laws,” Rowell said.

The state’s decision not to defend the adoption ban arrived four weeks after Gov. Phil Bryant signed the religious freedom bill, known officially as HB 1523, into law. Some members of the gay community saw this as evidence that legislation was shifting, very slowly, in their direction.

“This is the way we’re moving as a country, towards full equality for everyone. This is another example of walls coming down that existed before,” said Rob Hill, director of the Human Rights Campaign in Mississippi. “This is why the governor needs to repeal something like HB1523. It’s a waste of time to try to stand on the wrong side of history and stand in the way of justice and equality.”

Meanwhile, now that they can legally adopt, Rowell and Harbuck are focused on becoming ideal candidates in the eyes of the Department of Human Services. While Rowell is 25 and Harbuck is 28, Rowell said they’ve already started by looking for a bigger house with a large yard and a room they can fix up for the child.

“We’re getting the chance to do things on a normal timeline like everyone else. Getting the nuclear family, with two parents, the house, the yard and the golden retriever,” Rowell said.


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Larrison Campbell is a Greenville native who reports on politics with an emphasis on public health. She received a bachelor’s from Wesleyan University and a master’s from Columbia University's Graduate School of Journalism.Larrison is a 2018 National Press Foundation fellow in public health, a 2019 Blue Cross Blue Shield Foundation of Massachusetts fellow in health care reporting and a 2019 Center for Health Journalism National Fellow.