PHOENIX โ The former head of the stateโs child safety agency said Monday it was Attorney General Mark Brnovich, and not him, 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 received last fall from former Attorney General Tom Horne, that it should treat all married couples the same following a federal court ruling voiding Arizonaโs constitutional ban on same sex marriage.
What that meant is 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. Before 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 the Department of Child Safety, informing her that Brnovich, who replaced Horne in January, had a different opinion.
Based on that โ and what Flanagan said he was led to believe was the position of Gov. Doug Ducey โ he halted the practice.
Kristen Keogh, spokeswoman for Brnovich, said previously that the February advice was not something her boss had simply come up with out of the blue.
โWe 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,โ she said at the time. Those statutes, adopted in 2006, spell out that, everything else being equal, preference in adopting a child โshall be with a married man and woman.โ
โWe did offer the advice,โ Keogh continued, based on Brnovichโs belief the issues remain in legal limbo until the U.S. Supreme Court rules.
Flanagan said Monday that Keogh โflat-out lied.โ
He said he was quite comfortable relying on Horneโs 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.
โNobody in my administration contacted the Attorney Generalโs Office,โ he said. โWe got unsolicited advice from John Johnson on Feb. 2, which was shocking to us since we didnโt ask for it and didnโt believe it was accurate,โ Flanagan said.
But Flanagan, replaced later that month by Ducey for other reasons, said he complied because โit 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.โ
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 replaced Flanagan several days after the February memo, to restore the policy to what it was before that.
โI have made it abundantly clear since day one that my administration is unambiguously and unapologetically pro-adoption,โ the governor said in a prepared statement. โWith 17,000 children under the stateโs care, we need more adoption in Arizona, not less.โ
The governor ordered DCS โto immediately ensure that all legally married couples in Arizona are able to jointly serve as foster parents and adopt.โ
Flanagan said he could only speculate why Brnovich chose to intercede in a decision he believed already had been settled.
Ryan Anderson, who is Brnovichโs communications chief โ and Keoghโs supervisor โ would not discuss the issue.
โWeโve said everything weโre going to say on this matter,โ Anderson said. โWeโre not interested with a back-and-forth with Mr. Flanagan.โ
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 Arizonaโs 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.
