October 16, 2007

TN AG Opinion on adoption by same-sex couples

On October 10, 2007, the Attorney General of Tennessee (AGTN, because the other option is TNAG) issued an opinion holding that nothing in the TN statutes prevents a same-sex couple from adopting a child.  The document is available here (link opens a PDF). 

The opinion asserts that adoption is purely statutory, such that courts must adhere strictly to the statutes when evaluating proposed adoptions.  The statutory standard for evaluating adoptions in TN is the best interest of the child, such that the child's interest will take precedence over the would-be adopting parent where the two come into conflict.  But nothing in the statutes defining who is eligible for adoption or who may adopt precludes adoption by a same-sex couple. 

This is worth watching, as it may produce a legislative backlash in Tennessee.  As I explain in my recent article (22 Berk. J. of Gender, Law, and Justice 135 (2007)), a Tennessee appeals court refused to recognize a lesbian petitioner as the de facto parent of her ex-partner's legal child (In re Thompson, 11 SW3d 913 (Tenn. Ct. App. 1999)).  The petitioner chose not to appeal to the Tennessee Supreme Court.

On the other hand, Tennessee is one of the states that struck down its sodomy statute based on the state constitution while Bowers was still in effect (926 SW2d 250 (Tenn. Ct. App. 1996)).  I can report based on personal knowledge that a state legislator wrote a bill in the late 1990s that would have prohibited lesbians and gay men from adopting or serving as foster parents, but withdrew it (on the logic that lesbians and gay men were more likely than anyone else to take babies who are HIV positive). 

Also, Tennessee prohibits recognition of same-sex marriages.  This opinion feeds into the ongoing controversy over the exact implications of statutes and constitutional amendments that enact such prohibitions.  How far do they reach?  The AGTN opinion makes no mention of that statute, which is odd if one believes that the purpose of marriage is procreation -- how could the criteria for adoption not relate to the criteria for marriage?  I suspect the answer is that no one thought about this situation when they enacted the adoption statute. 

We'll keep an eye on it.


October 16, 2007 in Family Law | Permalink | Comments (0) | TrackBack

Veto of California Marriage Bill

On October 12, Gov. Schwartzenegger vetoed the California marriage bill, as expected.  See SFGate news article.  The marriage cases are still pending in the California Supreme Court. 

This move is not at all surprising, as Schwartzenegger vetoed a very similar bill in 2005. 


October 16, 2007 in Equal Protection, Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

October 14, 2007

Surrogacy Uniformity?

Case-law in California providing surrogate parents legal protection has spurred an influx of same-sex partners to the state for procreation. One such case, regarding an American couple living in Australia, was recently in the news. They sought in-vitro fertalization in California due to restrictive Australian laws (prohibiting surrogacy). The couple also made international news headlines because they chose the birth sex of their child in the IVF process. See The Daily Telegraph at News.Com.au/dailytelegraph (Oct. 14, 2007--"Gay couple buys 'designer' sons from US").

Genetic issues aside, California case-law provides protection by enforcing surragocy contracts and legally protecting same-sex parents' intentions to parent a child (either through their own biological materials or through donated eggs/sperm) through a surrogate.

Although second-parent adoption is often a good choice for potential same-sex parents, it is not always the preferred choice. Many couples wish to raise a child of "their own," using biological sperm/eggs of the birth parents.

Case-law varies by jurisdiction and the legal questions get even murkier across state lines.

Interestingly, some scholars have argued that a surrogate contract is a matter of interstate commerce, which should be regulated uniformly by Congress presumably under its commerce clause power. See Katherine Drabiak et. al, Ethics, Law & Commercial Surrogacy: A Call For Uniformity, 35 J.L. Med. & Ethics 300 (2007).

But, contract law is generally left within the purview of the states. Not to mention the fact that surrogacy is not a normal contract involving the sale of goods or services. And, yes, we have proposed uniform laws across states for the sale of goods worth a minimum of $500 (i.e., the Uniform Commercial Code). Similarly, we have Uniform Laws relating to child custody as well (i.e., the Uniform Child Custody Jurisdiction and Enforcement Act).

It seems that a uniform approach to parenthood was attempted through the Uniform Parentage Act, but, obviously, state treatment of surrogacy contracts is not uniform today (many states adopted the Uniform Parentage Act or other similar legislation, but not all of the Acts address surrogacy). For example, some states forbid payment for surrogacy contracts, others do not, etc.

However, the suggestion that such contracts deal with "interstate commerce" could raise ethical questions (which have obviously already come up for many states, as they forbid payment for surrogacy contracts). Are we now in the process of selling babies to the highest bidder? Or are we really engaging in a contract relating to services--ie., you will be the vessel carrying the child and I will pay you for this "service."


October 14, 2007 in Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

October 08, 2007

Conaway v. Deane

Well, it took me a while but I am finally writing more about the Maryland same sex marriage case.  The most striking justification for denying the right to same sex marriage in this case is the old tried and true "procreation" defense.

The court has no problem stating that marriage is for procreation (at *77 of the opinion), thus, same sex marriage is not a fundamental right.  This argument seems quite outdated.  Surely, we quite often look to tradition when determining whether rights are fundamental.  However, we also must recognize that the Constitution must adapt to changing times.  Furthermore, was marriage ever solely about procreation?  I am not a historian, but I am fairly certain that one of the main purposes of marriage was also financial in the past.  See, e.g., E.J. Graff, What Is Marriage For? (2004) (note that the entire first chapter is devoted to discussing "money" as a historical reason for marriage).

Today, of course, it seems silly to say that the main purpose of marriage is for procreation.  I like to think that the goal of marriage is love, companionship, and the like.  Many married couples never have children and many others have them outside of wedlock.

October 8, 2007 in Family Law, Sara R. Benson | Permalink | Comments (2) | TrackBack

September 23, 2007

San Diego's Mayor Changes Tune

The Republican Mayor of San Diego recently changed his mind about gay marriage. He was determined to oppose same-sex marriage rights, but now he has changed his tune. His daughter, Lisa, is gay and he thinks that she should have the same rights as anyone else. See Article in USA Today.

It is nice to know that when the issue hits close to home, even the most conservative minds can change. However, it shouldn't take a gay son or daughter to help a politician recognize that preventing same-sex marriage is discriminatory and unconstituional.

At least the citizens of San Diego, under a new City Council Resolution passed by a 5-3 vote on Tuesday, Sept. 18, will be able to marry (for now). San Diego now joins many other California cities in voicing support for same-sex marriage to demonstrate a climate of support for gay marriage in wake of the pending state Supreme Court case.


September 23, 2007 in Equal Protection, Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

September 18, 2007

Maryland's Highest Court Permits Same-Sex Marriage Ban

In a case published today (Sept. 18, 2007), the Maryland's highest court (the Court of Appeals of Maryland) ruled that the state's ban on marriage was constitutional and permissible.

The text of the opinion can be found here:  Conaway v. Deane (Md. Sept. 18, 2007)

A discussion of the decision will follow shortly.


September 18, 2007 in Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

September 11, 2007

California Marriage Bill Veto Likely

Once again, the California State Legislature has passed a bill to approve same-sex marriage rights.  Currently, California provides a different system of same-sex partnerships called Domestic Partnerships. 

Unfortunately, a veto from Governor Schwarzenegger is likely, as he vetoed a similar bill in 2005.  Notably, the road towards same-sex marriage in California has not been steady.  In 2000, voters approved Proposition 22, which states that marriage in California will be recognized only when it occurs between a man and a woman.  Also, San Francisco Mayor Gavin Newsome permitted same-sex couples to obtain marriage licenses, which were nullified in Aug., 2004 by the State Supreme Court. (These nullified marriage licenses ultimately led to the current In Re Marriage cases--see below . . .)

It seems that Schwarzenegger may point to the view of the "people" (due to the passed proposition, now law) that clearly did not support the extension of marriage rights to gay couples.

However, this proposition was passed in 2000 and does not reflect the will of the public right now.  Although, this new bill does conflict with the earlier law. 

Currently, the issue is pending before the State Supreme Court (In Re Marriage Cases) to determine whether Proposition 22 (codified as Family Code Section 308.5) violates the Constitution by discriminating against same-sex couples by forbidding them from exercising their right to marry.

If the statute is not vetoed or the State Supreme Court case holds that California same-sex couples have the right to marry, California will join Massachusetts as the second state to permit same-sex marriages.  (See "Legislature OKs same-sex marriage bill in the San Francisco Chronicle).

Thoughts & Musings:  It seems to me that a favorable court decision is more likely.  On public issues such as same-sex marriage, courts tend to take their cue from the public.  As public representatives, the California legislature supports gay marriage.  Perhaps the State Supreme Court will too.  However, it is unlikely that Gov. Schwartenegger will change his mind--as he vetoed a similar bill in 2005.  Not only would he look fickle, but he has a great excuse (Family Code Section 308.5 directly conflicts with the new statute).  However, this "excuse" could potentially be distinguished, as it has been argued to apply only to out of state marriages.  In other words, California voters expressed their intent not to recognize "foreign" same-sex marriages in 2000, which, arguably, does not conflict with the right to same-sex marriage in California.  See post by Arthur S. Leonard from 6/26/07 on "Leonard Link" blog entitled "California Supreme Court Marriage Questions" explaining this argument in more detail. 


September 11, 2007 in Family Law, Sara R. Benson | Permalink | Comments (1) | TrackBack

September 01, 2007

Maine Supreme Court Supports Same-Sex Adoption

On Aug. 30, 2007, the Maine Supreme Court overturned a decision by the probate court refusing to grant a petition for adoption filed by a same-sex couple. 

Reviewing the decision of the Supreme Court, it seems obvious that the Probate Court disregarded the best interest of the children based on semantics.  The Probate Court refused to grant the petition because it did not have "jurisdiction" under the Maine adoption statute.  The statute clearly provides for adoption by one unmarried person, but neither explicitly forbids or denies adoption by two unmarried persons. 

In Adoption of M.A., 2007 M.E. 123 (Me. 2007), Supreme Court wisely pointed out that the same-sex couple could easily get around the provisions and adopt children together by filing separate petitions and consolidating them or by a second-parent adoption.  Thus, the Court noted that the statute is ambiguous and turned to the purpose of the statute for guidance.

Obviously, the primary purpose for adoption is to provide for a child's best interest by allowing the child to grow up with a parent or parents where the child otherwise might have none (in the case of a foster child, for instance--exactly the type of children involved in this case).  Id. at *24.  In fact, in my humble opinion, the more caring people interested in raising a child, the better.   Additionally, it is important to note that the two children involved in this case suffered from post-traumatic stress disorder and attention deficit disorder, among other things, due (in part) to the fact that their birth parents' rights had been terminated.  The children had been living with the couple for approximately 5 years.  Both the guardian ad litem and the home study recommended the couple as fit, able parents.  Id. at *4.  It would be traumatic for the children to  be removed from the care of their loving foster parents because of an ambiguous adoption statute.

Noting that the adoption statute should be "liberally construed," the court held that the probate court has jurisdiction to permit same-sex adoptions.  Id. at  31.


September 1, 2007 in Family Law, Sara R. Benson | Permalink | Comments (1) | TrackBack

Due Process in Varnum v. Brien

Varnum v. Brien, the Iowa trial court opinion striking down the state's prohibition on recognition of same-sex marriages, merits careful review.  State officials have vowed to appeal, so we do not know if the holding will survive.  Regardless, as one who has written an article on conflicting state trial and appellate opinions that are under appeal to the state supreme court, I believe that the trial court's reasoning is interesting and important as a potential indication of where the law is going.  This is especially true in the instant case, where the trial judge wrote some 60 manuscript pages in which he adopted the findings of the plaintiffs wholesale as the basis for his analysis.  His account of those findings merits a post of its own, as does his discussion of defendant's "expert" testimony.  I'll deliver those posts later.

First, however, the core legal analysis, which in turn has two parts, each deserving its own post.  As the quotation from the conclusion that I posted earlier indicates, the court found both due process and equal protection reasons for striking down the prohibition on same-sex marriages.   This post addresses the due process analysis.

The Varnum judge asserts that "[b]oth the Iowa Supreme Court and the United States Supreme Court have recognized that the right to marry is a fundamental right." Varnum at 43.  In addition to Loving v. Virginia, 388 U.S. 1 (1967), he cites Sioux City Police Officers' Ass'n. v. City of Sioux City, 495 N.W.2d 687 (Iowa 1993).  Id.  Under Sioux City, an Iowa law that "significantly interferes" with the right to marry invites strict scrutiny as the correct basis for judicial review.  Id.  Strict scrutiny has the effect, inter alia, of shifting the burden of proof from the petitioner to the defendant, who "must prove that the law is narrowly tailored to the achievement of a compelling state interest." Id. 

To this point, the Iowa judge's analysis follows federal precedent closely, citing Zablocki v. Redhail, 434 U.S. 374 (1978) and City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), as well as Loving and corresponding state precedent in Sioux City Police.  Id. 

He departs significantly, however, from federal precedent in the next section in a way that I find fascinating.  He dismisses defendant's claim that "because no state Supreme Court or United States Supreme Court decision has declared same-sex marriage to be a fundamental right, this Court is precluded from finding the existence of such a right."  Id at 44.  "[T]he Iowa appellate courts have acknowledged that Due Process rights are fluid, and that such protections 'should not ultimately hinge upon whether the right sought to be recognized has been historically afforded.'"  Id. 

With this claim, the Varnum judge clearly differs with the U.S. Supreme Court in Bowers v. Hardwick, and with Antonin Scalia dissenting in Lawrence v. Texas.

In overruling Bowers, the Lawrence majority offered an extended discussion of the history of sodomy statutes and their enforcement in the United States, concluding that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter."  Lawrence v. Texas, 539 U.S. 558, 568 (2003).  Scalia responded, "This observation in no way casts into doubt the 'definitive [historical] conclusion' on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general -- regardless of whether it was performed by same-sex or opposite-sex couples."  Id. at 596 (Scalia dissenting).  This assertion is part of Scalia's larger recitation of cases holding that heightened scrutiny is available under substantive due process doctrine only for "rights which are 'deeply rooted in this Nation's history and tradition.'"  Id. at 593. 

So it is that the battle over same-sex marriage is important not only for its impact on same-sex couples, but also as an example of debate over substantive due process, which in turn is a debate over whether history is a monolith, anchoring the Constitution and warding off innovation, or a fluid set of events against which courts should reevaluate laws in order to detect injustice that seemed unexceptionable in the past.  See id. at 578-79.  The Varnum court offers an even stronger version of history as fluidity than did Justice Kennedy in his Lawrence opinion.  Kennedy offered a substantive historical riposte, refuting the claim of the Bowers court that sodomy statutes had remained much the same from 1533 to 1986.  Id. at 568-70.

The Varnum court, by contrast, seems to argue that it should not have to consider the substantive historical claims of the defendant because the absence of a right in the past simpliciter is not an important piece of evidence.  Id at 44.  This opinion cites a string of Iowa opinions dating back to 1839 (refusal to return a slave to his owner) and including various steps toward gender neutrality in family law.  Id.  This reasoning allows the court to do two things. 

First, it provides the basis for pride in Iowa's historical record regarding advances toward legal equality. 

Second, it sets up a return to Loving with the claim, "[t]he fact that there was no historical tradition of interracial marriage in Virginia did not preclude the Court from holding that the fundamental right to marriage was violated through Virginia's prohibition against interracial marriage."  Id. at 45. 

This observation, of course, points up the silliness of the argument for history as monolith.  By 1776, North America had been part of the British Empire for 169 years, since the founding of Jamestown.  That fact did not stop the colonists from overthrowing royal rule in the colonies when the King and his agents consistently deprived the colonists of their rights.  Protection of the citizens' natural rights is far more important than precedent in the American legal and political tradition. 

The court then listed the interests that the defendant offered in support of the prohibition on same-sex marriages.  This passage, along with others, indicates the fundamental problem that conservatives face in explaining their opposition to same-sex marriage: "Though the Defendant cites an abundance of case law indicating that Courts have long considered marriage to be an important relationship, the Defendant makes no argument that promoting procreation, child rearing by a mother and father in a marriage relationship, promoting stability in opposite sex relationships, promoting the concept of traditional marriage or conservation of state and private resources are compelling state interests, despite the fact that it is his burden to do so."  Varnum at 45. 

The court found that defendant had failed to demonstrate either a compelling state interest for the prohibition on same-sex marriages, or that such prohibition was narrowly tailored to achieve any of the stated interests. Id at 45-46.  It turns out that, absent overt appeal to religious authority, there is no reason to prohibit recognition of same-sex marriages.  Conservatives have a repertoire of conclusory claims about why they think that recognition of same-sex marriages would harm the entire social order, but they have no evidence to support such claims, as the Varnum court effectively held with its review of defendant's proffered justifications. 

As Scalia claimed in both Lawrence (539 U.S. at 602) and Romer v. Evans (517 U.S. 620, 653 (1996)), this indicates that the Varnum court has largely accepted the "homosexual agenda."  Scalia considers this acceptance a gross failure of judicial rectitude.  Seems only reasonable to me.  As I will explain in subsequent posts, the Varnum court does an exceptional job in explaining both the empirical and the legal basis for enshrining the "homosexual agenda" in American law. 


September 1, 2007 in Family Law | Permalink | Comments (1) | TrackBack

August 28, 2007

N.J. Couple Unable to File Joint Taxes Until 2007

In Quarto v. Adams, 2007 WL 2262736 (N.J. Super. Ct. App. Div. Aug. 9, 2007), Judge Sabatino held that a same-sex couple married in Canada on July 28, 2003, could not file a joint tax return for their 2006 income, as their marriage was not recognized in New Jersey until the effective date of the Civil Union Act (Feb. 19, 2007). 

The couple was married in 2003 in Canada, filed for a domestic partnership under in New Jersey in 2004 and planned to file joint tax returns for 2006.  Prior to filing, they contacted the Office of the Attorney General for an advisory opinion.  The Attorney General had previously issued an opinion stating that under the Civil Union Act, adopted following the Supreme Court's Lewis v. Harris opinion, "relationships validly established under the laws of other States and foreign nations [would] be valid in New Jersey beginning on February 19, 2007, either as civil unions or domestic partnerships."  Id. at *2.

The tax inquiry was referred to the Acting Director, who explained that the couple could not file a joint tax return for the 2006 work year because their legal status was not recognized in New Jersey until February 19, 2007, "which was after their 2006 income had already been earned."  Id.

In fact, the couple would have saved money had they filed separate tax returns for the 2006 year, however, they wished to file jointly for personal reasons.  The couple asserted that they were entitled, under Lewis, to all of the rights and benefits provided to hetero-couples and the refusal to permit them to file jointly violates equal protection.  Id. at *3.

The court considered the main issue to be one of timing.  The court noted that in the Lewis case, the Supreme Court directed the legislature to adopt either a civil unions or same-sex marriage act within 180 days.  Id. at *7.  The Civil Union Act was enacted on Dec. 21, 2006, but was not effective until "the 60th day after its enactment" or Feb. 19, 2007.

Due to administrative concerns regarding a potential retroactive application of the Civil Union Act (for tax purposes), the court found that the couple could not file jointly for 2006.  "For instance, because such same-sex couples could not have filed joint New Jersey returns in prior years, their employers ordinarily would not have withheld appropriate amounts of taxes, so their W-4 forms would have been substantially incorrect."  Id. at *8.

Similarly, the court noted that the Taxation Division synchronized taxpayer status with federal law.  So, "New Jersey taxpayers must have been married in the year that their income was earned in order to qualify for joint filing status as married persons."  Id. at *6.  "Because appellants' Canadian marriage was not legally recognized by statute in New Jersey as a civil union until February 19, 2007, appellants are being treated no differently than a truly similarly-situated heterosexual married couple.  Id. at *7.

Thus, according to the court, the couple was entitled to a declaratory ruling that they could begin filing their taxes jointly in 2007.

Concurring Opinion: In an interesting concurring opinion, Judge Stern noted that the different treatment for tax purposes of heterosexual couples lawfully married outside of the state versus same-sex couples in the same situation constitutes "a denial of equal protection under the New Jersey Constitution."  Id. at *8.  However, Judge Stern ultimately concluded that the plaintiffs were only entitled to the declaratory relief provided by the majority of the court for this equal protection violation.  He found the administrative reasons offered by the majority to justify its decision "necessary and constitutionally acceptable" even though the due date for filing the 2006 tax return, April 17, 2007, occurs after the effective date of the Civil Union Act.  Id. at *9. 

Thoughts and musings: Perhaps the concurring opinion opens the door a bit for other jurisdictions facing similar tax conundrums?  Other courts could find that a same-sex couple could file jointly if the marriage or union was recognized before the tax filing deadline instead of requiring marriage recognition during the year the income was earned. For additional points regarding the court's reasoning in this case, see Professor Stephen Clark's Blog regarding Conflicts of Laws (noting that the court oddly seemed to defer to an admin. opinion of the attorney general and ignored the common law choice-of-law cases).


August 28, 2007 in Family Law, Sara R. Benson | Permalink | Comments (0) | TrackBack

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. 


August 22, 2007 in Family Law | Permalink | Comments (0) | TrackBack