A pro-family law organization is praising an appeals court decision in Kentucky that blasted a lower court for literally ignoring state law and creating an “adoption” for two lesbian women in violation of expressed state law.

“Judicial activism is a cancer that eats away at the rule of law and undermines the confidence of the people in the legal system,” said Mathew D. Staver, founder of Liberty Counsel and dean of Liberty University School of Law. “There is a clear distinction between the role of a judge and the role of a legislator. One interprets law and one makes law. The psychological dysfunction known as ‘judicioactivism’ is easily cured by a good dose of the Constitution, bed rest and removal from the bench to prevent relapse.”

The ruling from the Kentucky Court of Appeals came in the case of two lesbians, identified only as T and S, who decided that T, the half of the pair unrelated to a child, Z, born from artificial insemination, should “adopt” the child, even though state law in Kentucky forbids that.

The lesbians, even though they were separated and moving on to other “life partners,” convinced an activist judge that the case should be handled as a “stepparent” adoption, a set of circumstances that normally arise when a single parent gets married, and the newcomer to the family adopts the spouse’s children.

But Kentucky doesn’t allow lesbians to be “married,” so those procedures did not apply.

“The family court’s ruling that ‘this is a stepparent adoption’ presupposes a factual determination that T was, in fact, Z’s stepparent. This was clear error. A stepparent is defined by one’s indirect legal relationship to a child. A stepparent to a child is one, other than a biological or adoptive parent of that child, who marries one of the child’s biological or adoptive parents,” the appellate ruling said.

“Stepparent status requires a legal marriage to the child’s parent. We do not see how this elemental concept eluded the court below and can only conclude that it was knowingly ignored.”

The ruling said stepparent adoptions are only legal when the stepparent is married to a biological parent, and reaffirmed that marriage can exist only between one man and one women.

“It’s not this or any court’s role to judge whether the legislature’s prohibition of same-sex marriage … is morally defensible or socially enlightened,” wrote Judge Glenn Acree in the opinion. “Nor is it this or any court’s role … to craft any means by which the legal consequences of such a prohibition may be negated or avoided.”

“What occurred here amounted to ‘reinstituting by judicial fiat common law marriage which by expressed public policy is not recognized,'” the court ruling said.

“We cannot ignore – and the family court should not have ignored – the fact that the parties’ relationship ‘simply does not exist as a ‘marriage’ of any kind,'” the court said.

“Without question, it is inappropriate to use a legal fiction to sidestep a public policy so clearly expressed by the Legislature in statute and by the People of the Commonwealth in its ratification of a Constitution provision,” the court said. “Failure to strictly adhere to the adoption laws have resulted in some painful decisions… The decision in this case was destined to join their ranks.”

Liberty Counsel said an activist Florida county circuit court has issued a similar opinion, suggesting Florida’s 31-year-old law banning adoptions by homosexuals was “somehow unconstitutional,” despite the fact the same law has been ruled constitutional by both state and federal courts.

“In fact, Liberty Counsel successfully defended the same law at the federal court of appeals that upheld the law. Despite the fact that these decisions by the appeals courts are binding on the Florida trial judge, he lawlessly disregarded these binding precedents,” Liberty Counsel said.

The Kentucky court opinion noted that in the particular case at issue, there will be no happy endings. State law affirms that an “adoption” order is final one year after issuance and that deadline already has passed. The appeals court judges returned the case to family court, where a judge will have to work the dispute over custody, since the earlier “permanent joint custody” order was void.


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