August 22, 2007
Finstuen v. Crutcher -- Interstate Adoption Recognition
Recognition of Second-Parent Adoptions in Oklahoma
In Finstuen v. Crutcher, 2007 U.S. App. Lexis 18500 (CA10 Aug. 3, 2007), the tenth circuit court of appeals upheld a district court decision striking down an Oklahoma statute that prohibited all state agencies and courts from recognizing adoptions by two parents of the same-sex. States vary significantly in their willingness to perform such adoptions. In some states, the availability of second-parent adoptions can vary by county, even by judge.
Part of what makes this decision interesting is how same-sex couples increasingly present significant federalism issues as states vary widely in their willingness to recognize the families of same-sex couples. The Finstuen court stated:
We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.” 2007 U.S. App. Lexis 18500 at *2.
Three couples served as plaintiffs in Finstuen. The issue of standing proved more legally complicated than the issue of granting full faith and credit to other states' adoption decrees. Or, that couples one and three lacked standing was almost as obvious as the fact that the statute in question violated the Full Faith and Credit clause.
One couple, gay men in Washington, adopted a child who was born in Oklahoma. They requested a revised birth certificate from the Oklahoma State Department of Health (OSDH) that listed both men as parents. The agency requested an opinion from the Oklahoma Attorney General, who opined that the Full Faith and Credit Clause required OSDH to comply with any valid adoption order from another state.
The agency did so, but shortly afterward the state legislature enacted a statute stating that
this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction. Okla. Stat. title 10, sec. 7502-1.4(A), quoted in id. at *2-*3.
Although this couple did receive a birth certificate listing them both as the child's parents, they asserted a reluctance to travel to Oklahoma, even to visit the child's mother, as they had agreed to do, for fear that Oklahoma officials will refuse to recognize their adoption. See Finstuen v. Edmondson, 2006 U.S. Dist. Lexis 32122 at *5. The trial court found their claim of harm to be purely speculative and concluded that they lacked standing. Id. at *14.
In the third couple, one partner gave birth to the children in New Jersey. Later, her partner adopted both children without terminating the birth mother's rights. They subsequently moved to Oklahoma and claimed they suffered from emotional harm as the new law significantly restricted the families' rights, and severed the right of the adoptive parent.
In the circuit court, then, the only plaintiffs whose claim survived were the second couple. The second couple adopted a child who was born in Oklahoma. One parent adopted the child in California. Her partner adopted the same child six months later, also in California. OSDH refused their request for a birth certificate listing both women as parents. The couple recounted an episode in which the child required an ambulance ride. Ambulance personnel initially stated that only "the mother" could ride with the child. The Circuit court accepted this as an injury-in-fact that issuance of a birth certificate showing both women as parents could help resolve. Id. at *12-*13.
This situation is also an effective illustration of how discrimination against same-sex couples often works in practice. In emergency situations, where the need is most dire, individuals with full citizenship rights have no need to keep important documents handy to prove their status to persons such as ambulance drivers and hospital administrators. Same-sex couples, by contrast, live at the mercy of such persons' willingness to accept the couple's representation of their relationship. While documentation such as birth certificates and powers of attorney may be necessary, they are not always sufficient, as self-appointed defenders of heterosexual supremacy sometimes refuse to acknowledge the legitimacy of the documents in such situations.
The circuit court's opinion distinguishes legislation from judicial judgments for purposes of full faith and credit. Id. at *36. It explains that interstate respect for judgments is central to the purpose of the Full Faith and Credit Clause, which in turn is central to the purpose of creating a single, federal nation out of a collection of small republics. Id. at *35. The court also noted that the forum state remains free to use its own law in deciding the manner of enforcing another state's judgment. Id. at *40.
To explain the distinction in the instant case, the court wrote:
A California court made the decision, in its own state and under its own laws, as to whether Jennifer Doel could adopt child E. That decision is final. If Oklahoma had no statute providing for the issuance of supplementary birth certificates for adopted children, the Doels could not invoke the Full Faith and Credit Clause in asking Oklahoma for a new birth certificate. However, Oklahoma has such a statute -- i.e., it already has the necessary 'mechanism for enforcing [adoption] judgments.' The Doels merely ask Oklahoma to apply its own law to 'enforce' their adoption order in an 'even-handed' manner. Id. at *41.
The court also patiently addressed various silly arguments that the state of Oklahoma put forward, including the assertion that the California adoption decree cannot bind Oklahoma officials who were not party to the original suit. Id. at *42-*43.
Finstuen is only the latest example of self-styled conservatives disregarding the rule of law in their eagerness to heap disabilities on lesbians and gay men. The Oklahoma statute plainly violates the Full Faith and Credit Clause, as the Oklahoma Attorney General asserted. Legislators who wish to add to the existing burdens of discrimination and prejudice that same-sex couples face, however, were more focused on that goal than on respect for the plain language of the United States Constitution.
The State of Oklahoma has announced that it does not intend to appeal this decision.
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