Tonight the Tenth Circuit, in Finstuen v. Crutcher, held unconstitutional under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state. States usually recognize adoptions from foreign jurisdictions, but Oklahoma carved out an exception for adoptions by same-sex couples. Said the court:
We hold today that final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause. Therefore, Oklahoma’s adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples. Because we affirm the district court on this basis, we do not reach the issues of whether the adoption amendment infringes on the Due Process or Equal Protection Clauses.
On the Full Faith & Credit issue, the decision was 2-1; the dissenting judge felt it was not necessary to reach that question. On first glance the opinion appears quite narrow and doesn't affect the state's ability to refuse to recognize same-sex marriages, but I haven't had time to read it carefully. I may have more to say about it tomorrow.
Related Posts (on one page):
- Recognizing Out-of-State Adoptions:
- More on that Tenth Circuit adoption decision:
- Oklahoma must recognize out-of-state adoptions by same-sex parents:
That is, until the 10th Circuit relies on this case to rule that Oklahoma has to recognize same-sex/homosexual/gay marriages.
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
General- DOMA does not say anything about recognizing adoptions, it does about marriages. Without Congressional action, the default is that an act, record, proceeding made in one state is given full faith and credit in another. The Congress has not said "To prove a valid adoption, you must have one male and one female parent," though they have said "No state has to accept marriage unless there's one male and one female parent."
This makes sense because some states have historically not allowed single people to adopt. So if a single parent and his/her adoptee moved to a new state, would the adoptee have no parent??
Cornellian- People have raised this issue re: 1st cousins, but I dont know of any cases. But in the 50s, there was a live issue of whether one state had to give f.f. and c. to interracial marriages. Loving v. Virginia got to the S. Ct. first, though.
(And yes, I recognize that race is explicitly in the 14th Amendment, but im just showing a parallel.)
As to the "judgment" issue, it generally applies to contracts that would be valid in one state. Further even a true originalist would not argue "judgment" means "made by a Judge"...
But as I said, the text answers this one...a "public act" arguably covers marriages and adoptions.
I'd think the surrounding community might be outraged enough (this is the key element. I don;t think youthful marriage is morally equivalent to a homosexual one, but rather that people around would get up in a lather about it in communities where same sex marriages wouldn't be an issue) to try and dissolve it, which would mean I;d think it would have come up before.
Back before Loving v Virginia there were lots of states that banned interracial marriage. You would think if FF&C required recognition of interracial marraige in those states, that there would be caselaw on it but, as I've said, I've never seen such a case. In fact Loving itself involved an out-of-state interracial marriage and I don't recall FF&C even coming up in the case.
But see ID 18-6107:
RAPE OF SPOUSE. No person shall be convicted of rape for any act or acts with that person's spouse, except under the circumstances cited in paragraphs 3. and 4. of section 18-6101, Idaho Code.
Paras. 3 and 4 have to do with the application of force or the threat of force.
Or do they just pick one of the adoptive parents randomly to still be the parent.
No one would suggest, for example, that if cocaine and heroin can legally be used by twelve-year-olds in state A, then state B cannot prevent twelve-year-olds from bringing that stuff from state A. No one would suggest, for example, that owning title to a human being in Georgia in 1830 would have forced Massachusetts to recognize and honor that title when the owner migrates to live in Massachusetts. On policy grounds, this Tenth Circuit decision might make sense, but I very much doubt that the result really follows from the Constitution or its Full Faith and Credit Clause.
Why doesn't the FF&C clause require the states to recognize Concealed Carry weapons permits from other states?
Why doesn't the Incorporation rulings on the 14th Amendment ignore the 2nd Amendment?
"Does" should be "do"
"D'oh!"
The Court has consistently refused to incorporate ALL of the Bill of Rights, opting instead for a policy of selective incorporation. Thus, for example, the grand jury clause doesn't apply to the states either.
There is dicta in at least one previous Court ruling that the Second is not incorporated, but the Court has never ruled directly on the issue.
Go ahead, tell me neigh.
Possibly they might have. That was part of the argument against Dred Scott.
Counterpoint: Possibly they might have. That was part of the argument against Dred Scott.
It's a good thing the US Supreme Court was not packed with liberal judicial activists who might have used their personal opposition to slavery to interfere with the property rights of God-fearing Southern conservatives!
Seriously, I don't see how the court could have ruled any other way in this case. What would Oklahoma do if two gay parents adopted a child who was unrelated to either of them, and then moved to Oklahoma?
Would the kid be an orphan? Would they refuse admission to school because no "parent" was available to register the kid? Would the biological mother then be legally responsible for not getting her kid into school as required by law? Do these so-called Christians want hosptials and doctors to refuse care because no "parent" is available to authorize treatment? Would physicians be guilty of battery for treating the child without "parental" authorization?
I also agree with those conservatives who doubt that the federal Attack on Marriage Amendment (aka "DOMA") can stop the spread of gay marriage. Some of the same-sex divorce proceedings that are starting to bubble up prove the weakness of DOMA and the untenable results.
You can't have a court in State A give custody to Parent A and a court in State B give custody to Parent B because State B refuses to recognize the same sex marriage existed. If Parent A goes to State B and snatches the child, is that kidnapping? Is that contempt of court in State B? If Parent B goes to State A and snatches the kid back, should both parents be convicted of kidnapping a child? You could come up with similar problems with property orders.
The only tenable decision is to require states to recognize marriage decrees that they would not have issued. If conservatives don't support that, they should try to amend the US Constitution. That would be bad policy. That would be bigotry. But that's the remedy.
Of course, that would hurt a lot of kids who depend on child custody laws to protect them when their parents split, but I guess hurting kids is a price worth paying for advancing the anti-gay agenda.
Would the kid be an orphan? Would they refuse admission to school because no "parent" was available to register the kid? Would the biological mother then be legally responsible for not getting her kid into school as required by law? Do these so-called Christians want hosptials and doctors to refuse care because no "parent" is available to authorize treatment? Would physicians be guilty of battery for treating the child without "parental" authorization?
Yep, you've hit on it exactly. In their view, the kid should be regarded as an orphan the instant he and his adoptive parents step over the border, and his relationship with his adoptive parents magically reappears the instant they leave the state. All that stuff about the kid not being able to go to school, get medical treatment etc is just the price you have to pay for doing God's will.
I haven't had time yet to study Finstuen v. Crutcher in detail, but my first impression is that it's yet another one of these Uriah-Heep-type decisions where a court humbly considers whether it has jurisdictional power to decide a case, and then once having determined it has that unsought duty, it decides the case exactly as it wants. But like I said, I haven't studied the case in detail yet, so don't start calling me a right-wing-fascist Christian nut case quite yet. I'll be interested to read what more Dale Carpenter may have to say about it.
<blockquote>We have held that the Full Faith and Credit Clause does not compel "'a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.'" Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988) (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939)).</blockquote>
This quote is from Franchise Tax Board v. Hyatt, 538 U.S. 488, 494 (2003).
Andrew- Your hypothetical doesnt really make sense. An Oklahoma court couldnt rule that a Massachusetts order is invalid in Massachusetts. If it rules that there cant be an adoption under OK law, and a couple moves to Massachusetts, Massachusetts can clearly under Mass law grant an adoption within its own borders.
Here's an example:
I am denied a promotion in State X, which has no sexual orientation discrimination law, based on being a lesbian. I sue there and the court says "we do not protect sexual orientation as part of our discrimination law."
I subsequently move to State Y, which does have such a law, and I unfortunately am fired for being a lesbian. State X's determination is not relevant.
As a legal matter, this one really wasn't even a close one for the 10th Circuit. I suspect there will be no rehearing en banc because if the court reverses on FF&C, it would still need to address the equal protection and due process claims, which I would think it is not anxious to tackle.