In Finstuen v. Crutcher, the Tenth Circuit held that under the Constutitution’s Full Faith and Credit Clause (FFCC), Oklahoma could not refuse to recognize otherwise valid out-of-state adoptions by same-sex couples. Judge David Ebel (appointed by Reagan) wrote the opinion, joined by Judge Terrence O’Brien (appointed by George W. Bush). Judge Harris Hartz (also appointed by GWB) concurred and dissented in part, and did not reach the constitutional issue.
Oklahoma prohibits unmarried couples, gay or straight, from adopting a child as a couple. (One member of the couple may adopt a child as a single person.) But an Oklahoma statute requires the state to recognize and treat foreign adoptions – those from another country or another state — creating a parent-child relationship as though finalized in an Oklahoma court. All the rights and obligations of parents and children in the state apply the same way to adoptions finalized elsewhere. That’s the rule in all 50 states, in fact. There’s one catch, however, in Oklahoma that I have not seen in other state laws. It’s embodied in a recent amendment to the state statute:
Except 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. tit. 10, § 7502-1.4(A)
Thus, on its face, the statute requires the state to recognize foreign adoptions by unmarried opposite-sex couples, even though such a couple could not adopt in Oklahoma itself. But foreign adoptions by unmarried – or married – same-sex couples are not recognized.
The adoption amendment is draconian in its simplicity. It’s not clear, under Oklahoma law, whether the state would recognize either same-sex parent as the legal parent of the child. Thus, same-sex parents traveling through the state could find their legal rights challenged in emergent circumstances. The child could be left “parent-less” in such circumstances, a monstrous result. Similarly, the Oklahoma law could deprive same-sex parents who had adopted out-of-state and then moved to Oklahoma of all legal power to direct their child’s education and medical treatment. I doubt a state child welfare agency, even in Oklahoma, would seize these legally “parent-less” children unless there were some independent reason (e.g., evidence of abuse) to do so, but the law itself provides no answers. Perhaps other equitable and family law doctrines, like de facto parent status, could be invoked to prevent the worst nightmares, but the resulting uncertainty itself could damage the family. From what I’ve read of the debate over the amendment, Oklahoma legislators gave no consideration to these complications.
Oklahoma passed the amendment after a gay couple from the state of Washington successfully petitioned the state department of health to re-issue their child’s birth certificate to reflect the fact that they were now the child’s parents. Re-issuance of birth certificates to reflect the names of the new parents is routinely done in adoption cases. The couple adopted the child in Washington, which permits same-sex adoptions, but the child had been born in Oklahoma. The couple wanted the change made because they planned to travel periodically to Oklahoma to visit the child’s biological mother, who still lived there. They did not want state officials, hospitals, or others questioning their parental rights as they traveled through the state, especially in case of an emergency.
While the Tenth Circuit ultimately held that these men (and an in-state lesbian couple) lacked standing to challenge Oklahoma’s anti-gay adoption amendment because, it said, their fears were “too speculative,” it held that an out-of-state lesbian couple had standing because the law had already concretely harmed them. The health department had refused to issue them a revised birth certificate. Plus, during an actual emergency, they had been told by an ambulance crew and emergency medical staff that only “the mother” could accompany the child. (These disparate results show, I think, how bizarre the standing doctrine can be: standing law, as this panel applies it, requires parents to wait to challenge the law in federal court until they are denied access to their child in an emergency.)
The Tenth Circuit addressed only the FFCC issue, not the Equal Protection and substantive Due Process issues the parents had also raised. The reasoning was fairly straightforward. The FFCC requires states to give full faith and credit “to the public Acts, Records, and judicial Proceedings of every other State.” Art. IV, Sec. 1. The Supreme Court has held that this language applies with full force to the final judgments of sister states. Final adoption orders or decrees are judgments, as Oklahoma conceded, and as such must be recognized under the FFCC.
But what of the “public policy exception” to the recognition of another state’s laws? This is the wrinkle in controversies over the effect of the FFCC that has permitted states to argue, for example, that they do not have to recognize same-sex marriages or civil unions validly performed in foreign jurisdictions if they have clearly expressed a contrary public policy in their own statutes or constitutions. Oklahoma has clearly expressed its public policy judgment that it does not want to validate parenting by gay couples just as surely as it has expressed its view that it will not recognize foreign same-sex marriages for any purpose. The Tenth Circuit noted, in response, that there is no “public policy exception” to the “judgments” of other states. Op. at 28. Oklahoma did not contest this conclusion. Since a marriage is not considered a judgment of another state, the public-policy exception applied to foreign gay marriages stands.
But Oklahoma argued that requiring it to recognize foreign same-sex adoptions would effectively give foreign jurisdictions control over its own public policy in multiple ways beyond mere recognition itself. The parent-child relationship creates many legal rights and obligations under state law, including the power to make decisions about medical care and education, rights of inheritance, the right to seek child custody and support, and the right to bring a wrongful death lawsuit. If required to recognize foreign same-sex adoptions, the state would then be required to grant the parents and their children the full panoply of parent-child rights as they would any other family. This would give the foreign state control over the effect of its judgment in Oklahoma, argued the state.
The Tenth Circuit responded by saying that Oklahoma retains the power to control “the manner in which adoptive relationships should be enforced in Oklahoma and the rights and obligations in Oklahoma flowing from an adoptive relationship.” Op. at 30. The point is that Oklahoma has decided to treat adoptive relationships the same as the relations of natural parents to their children. It cannot, under the FFCC, elect to treat a sub-class of foreign adoptive relationships differently from in-state adoptive relationships.
What the court seems to be suggesting, then, is that Oklahoma could decide to create an alternative inheritance regime that treats adopted children differently than natural children (though such a scheme might founder on other constitutional objections). The same would go for medical care, education, and all of the other rights that parents and their children have. What it cannot do is treat adoptive parents the same as natural parents, except for one class of foreign adoptions.
The chances are higher than usual that the Tenth Circuit will take the case en banc. It involves the invalidation of a state statute on constitutional grounds, in an area of unusual cultural and legal sensitivity. There will also be arguments that the case could be disposed of on standing or mootness grounds, making the constitutional resolution unnecessary, though I think these arguments are pretty weak. Whatever the Tenth Circuit does, I doubt the Supreme Court would hear the substantive constitutional claims. There is no circuit conflict, and Oklahoma’s law is unique, which means conflicts arising from its law will be small in number and scope for some time to come.
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:
This was an interesting analysis, and it seems like the issue is fairly straightforward. It will be interesting to see what the courts do from this point.
K
One would assume that it's already possible for an adoption to be invalid. Even completely ignoring gays, surely it's possible for straight people to attempt to adopt a kid in a manner which turns out not to be valid. Any situation which would lead to a child of a gay couple to be parentless could already lead to a child of a straight couple being parentless in a similar situation, but with "are gay and adopted the child out of state" replaced by "are straight and didn't follow the proper procedure".
I hope the 10th Circuit hears the case en banc. While Oklahoma's policy may be unwise or even harmful, it would also be unwise and harmful for the federal courts to exceed their mandate (no matter who nominated the judges in question).
While it is true that, as Dale says, "The child could be left 'parent-less' [under Oklahoma law], a monstrous result," there are other possible outcomes as well. The adoptive parents might think it worthwhile to move to a state more receptive to same-sex parenting. Or custody might be restored to the natural parents. Or some other couple might adopt. But even if a monstrous result happens (and being orphanned is always a monstrous result), it is also monstrous when unaccountable courts short-circuit democracy without true constitutional authority. The people of Oklahoma can change their statute and their Constitution, but not the decisions of their federal courts.
And I remain unconvinced that there is no public policy exception here, to the Full Faith and Credit Clause. To take a hypothetical example, if Utah were to legalize polygamy and polygamous parenthood, then this 10th Circuit decision apparently would require every state in the nation accept such polygamous parenting, provided only that the parents go to Utah first in order to get the certificate.
The most likely outcome and really the only viable one. But really a monstrous outcome -- you lose the benefits of an extended family nearby, the breadwinner may have to accept an inferior job, costs of living might be higher elsewhere, and so on.
"Or custody might be restored to the natural parents. Or some other couple might adopt."
I don't see how. If a parent gave up a child for adoption, how likely are they willing to take the child back? And that's assuming you can find the parents, and they are still living. Other couples could adopt, but seeing how there is a huge shortage of adoptive parents, it's highly unlikely. And if the child is more than a few months old, the chances go almost to nil.
All this just proves that the amendment wasn't about 'protecting' kids or families, but was just about making life as miserable and difficult for gays as is possible. If the kids suffer, well, it's their fault for picking gay parents.
Dale outlined the circumstances that led to enactment. A gay couple from Washington state asked Oklahoma to re-issue a birth certificate. They had adopted the child in Washington, but the child had been born in Oklahoma. The couple wanted to travel periodically to Oklahoma to visit the child’s biological mother. So, in that kind of situation, restoring custody to the natural mother would not have been impossible. People talk a lot about gay rights, but there is also a legitimate argument to be made that a child also has a fundamental right here: to preferably grow up with at least one of his natural parents, and both of them if possible.
It's cynical to say that Oklahomans really want to make life as miserable and difficult for gays as is possible. I'm sure that most Oklahomans, including the sponsors of this bill, want to do what's best for children, and that's the primary motivation here. In any event, the U.S. Constitution does not have some general provision authorizing federal judges to overturn laws that make people miserable.
How exactly is eliminating the parental rights of the adoptive parents going to result in the child "grow(ing) up with at least one of his natural parents" given that the mother has already given the kid up for adoption? The decision doesn't mention the father, so presumably he's dead, unknown or otherwise out of the picture. The more likely effect of the statute is to make the child less likely to have contact with his natural mother since his adoptive parents are taking a terrible risk every time they set foot in Oklahoma.
And it's naive to think the sponsors of the bill just "want to do what's best for children."
Read the whole post, the "no public policy exception" situation applies to judgments, and marriages aren't judgments, ergo public policy exception is potentially available in a marriage situation even though it wasn't in this case.
The purpose of adoption law is to protect kids by giving parents the power and duty to provide care. If adoptive parents drive through Oklahoma, the child in their car becomes a legal stranger to them. That child does not get the protection of Oklahoma law.
As Professor Carpenter pointed out, Oklahoma's refusal to recognize another state's adoption decree causes all sorts of problems. Some of those problems affect third parties.
If a gay couple's kid needs medical care for a non-life-threatening condition, should Oklahoma hospitals and doctors refuse to provide care because no "parent" is available to authorize treatment? Would physicians be guilty of battery for treating the child without "parental" authorization? Should Oklahoma schools refuse to register the child? If the schools refused and the kid didn't get schooling, would Oklahoma prosecute the birth mother for failing to assure that her kid received an education?
Worse, a stranger who snatched the child would have a darned good defense against kidnapping or interference with custody charges.
The FF&C Clause recognizes that it makes no sense to pretend that a foreign judgment does not exist. When you start to live in a make-believe world, you get all sorts of really stupid--and sometimes very cruel--results.
It's cynical to say that Oklahomans really want to make life as miserable and difficult for gays as is possible. I'm sure that most Oklahomans, including the sponsors of this bill, want to do what's best for children, and that's the primary motivation here.
Do you have any evidence that the sponsors of this bill were trying to protect children? I don't see how refusing to recognize an already-formed parental bond could possibly advance the interests of the child.
Now, I don't think the sponsors hate kids, but I think they're indifferent. They want to advance an anti-gay agenda, and cruelty to children is just collateral damage.
Presumably, the Founders who wrote the Full Faith and Credit clause understood adoption proceedings. Are you saying that they didn't mean for the clause to bind each state to credit the results of a sister state's adoption proceedings? If so, why?
Or are you saying that they didn't mean for the federal judiciary to enforce the FF&C clause in the face of a state legislature bent on flouting it (despite the constitution's Supremacy clause)? If so, why?
Or am I just missing your point?
With respect to the second point, a major component of any adoption is the termination of the biological parents' parental rights. Once that occurs, the biological parents have as much rights to a child as any five names chosen at random from the phone book.
With respect to the first point, my son is my son. Period. I resent it when people treat the parent-child relationship in an adoptive family as somehow being less than the parent-child relationship in a biological family.
Again, isn't such a situation already possible with straight parents who are in-state but didn't adopt the child in the proper manner? Surely Oklahoma already does something if an adoption is invalid; would the school register the child? Do they prosecute the birth mother?
Pointing out the horrible consequences of declaring adoptions invalid doesn't just argue for gay adoption, but for getting rid of the concept of "invalid adoption" completely. It proves far too much.
The idea is that the *child* has rights to his birth parents, not that the birth parents themselves have rights.
Pointing out the horrible consequences of declaring adoptions invalid doesn't just argue for gay adoption, but for getting rid of the concept of "invalid adoption" completely. It proves far too much.
Not at all. With respect to in-state adoptions, Oklahoma is free to provide however much process it likes to ensure validity. With respect to out of state adoptions FF&C means that you don't get to go behind the other state's adoption order, you just accept the result, you can't go behind it and question whether it was validly issued in the state where it was issued, so questions of whether it was validly issued don't arise - that's what the other state's adoption process is presumed to ensure.
Other than for medical records, I honestly don't see a great deal of utility in a "child" having rights to birth parents. IF both the biological parents and "child" want to have some sort of meeting or relationship after the "child" reaches adulthood, I have no objection--so long as BOTH the biological parent and child are in agreement about such a meeting.
The idea is that the *child* has rights to his birth parents, not that the birth parents themselves have rights.
And yet Oklahoma does not consider the child to have some inalienable right to grow up with his birth parents, since it doesn't invalidate all adoptions, only those by same-sex couples.
But isn't this a highly contestable claim? The public policies of states are reflected in their laws and in the judge-made legal tests in their precedent related to those laws. If State 1 has a less stringent standard for proving causation in torts cases than State 2, it makes perfect sense for State 2 to say, "No, no, you can't come into our state and expect our courts to respect that money judgment, because you purposely went forum-shopping for a less stringent standard with the intent of collecting in our state." Why can't OK argue legitmately that other states have less stringent standards of "proving" marriage eligibility requirements?
There are two sentences in the Full Faith and Credit Clause. The first is like a sentence that was in the Articles of Confederation; it is indeterminate, and probably pertains to admissability of evidence. The second sentence is a substantial grant of power to Congress. James Madison explained why the second sentence was added: “He wished the Legislature [i.e. Congress] might be authorized to provide for the execution of Judgments in other States, under such regulations as might be expedient--He thought that this might be safely done and was justified by the nature of the Union.”
So, I think the proper question here is whether the Oklahoma law is consistent with federal statute, not whether it is consistent with the Full Faith and Credit Clause. That is how the first and leading cases on this subject treated this type of issue. See Mills v. Duryee, 11 US 481 (1813). The pertinent federal statutes would include 28 USC 1738, and possibly DOMA.
Regarding whether an adoption order might be different from a marriage decree or marriage license in that the latter is not a “judgment”, I would disagree with such a distinction. The Supreme Court has explained that, "our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments." If the distinction is between laws and judgments, then both adoption and marriage would fall in the same category, not different categories. So, I still believe that the upshot of the 10th Circuit's decision could be that, if some state legalizes polygamy, then people from all states could go there to get a polygamous marriage license, and then go home where they could force their own states to respect that license. There are a million other examples of how the 10th Circuit decision may have unexpected and endesirable consequences.
Regarding a public policy exception --- either to the Full Faith and Credit Clause or to federal statutes implementing it --- there may not be a “roving” public policy exception to out-of-state judgments, but that by no means signifies that there is no public policy exception at all. Such public policy exceptions are longstanding and well-established. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16.
Sorry, what I meant was: Why can't OK argue legitmately that other states have less stringent standards of "proving" adoptive parent eligibility requirements?
Yes, not only do I think this is correct, I really fail to see the argument on the other side. Could someone flesh it out for me (in a way that renders it consistent with complex litigation practice, e.g., mass torts in the MDL context)?
Perhaps so, and I'm willing to conceed that might be the case. Nonetheless, any groups that wish to stop gays from adopting, whether it be in OK, Florida or other states, always bring up every nasty thing they can say about gay people, and conclude that it's better for a child to remain homeless or in foster care than be in any gay family. Heck, even the Catholic Church states that gays do 'violence' to their children.
If you want examples of cynicism, you needly only look to these groups and what they say.
Pointing out the horrible consequences of declaring adoptions invalid doesn't just argue for gay adoption, but for getting rid of the concept of "invalid adoption" completely. It proves far too much.
I've never heard of anything called the "concept of [an] 'invalid adoption.'" Where did you get that? Based on what I've seen, either it's an adoption or it's not. There have been cases where an adoption has been contested, but in those cases the people with custody have at least some executive or judicial order giving them custody or control while the case is pending.
But the Oklahoma law doesn't give custody to anyone. The law removes custody from the kids' parents without giving it to anyone else. It makes the parents legal strangers to their children.
At best, the parents would get the legal status of babysitters, and babysitters can't authorize non-emergency medical care, enroll kids in school, or make any of the decisions our society reserves to parents.
Here's another problem--if the parents are legal strangers to their child, and the child requires emergency care, the parents can take their kid to the emergency room, rack up tens of thousands of dollars in bills, and walk away without paying a penny. If an older kid goes on a crime spree, the parents would be immune from paying any damages to the victims. If the kid causes an accident, the parents couldn't be sued to pay the damages.
Thankfully, the FF&C Clause exists to avoid precisely these kind of problems.
For those who think this was a bad decision, who do you think is the legal parent of these children? The birth mother's parental rights have been terminated, so, as another poster noted, she has as many rights and duties as anyone picked randomly from the phone book (and the adopted kid has as much claim on her as on anyone picked randomly from the phone book). Is the kid a ward of the State of Oklahoma?
I think the primary purpose underlying the Oklahoma statute is that a child has a right to preferably grow up in a traditional family with a Mom and Dad, be they adoptive or biological parents. A minor purpose may have also been to protect a child's right to grow up with biological parents
Then the law is entirely irrational. The law does nothing to transfer parental rights to a new set of parents (if the law tried to do that, it would be overturned because parental rights cannot be terminated without due process of law). The law also does nothing to transfer rights and responsibilities back to the birth mother, who is now a legal stranger to the child.
Both you and the law's sponsors fail to recognize that this law does nothing to protect kids. All it does is take away kids away from their parents and leave them wholly unprotected.
Concern for children? Give me a break already. The point is to punish gay parents, and if the children suffer, oops!
It may well make sense from a policy point of view, but FF&C stops states from doing exactly that. If a tort action can be brought in state A or state B, and the plaintiff chooses state B because it has more favorable laws, wins a judgment then comes to state A to enforce it, state A doesn't get to refuse to enforce it on the grounds that state A has stricter laws and so the plaintiff might have lost had he brought his action in state A.
I might add that to the extent that forum shopping is a problem, (and plenty of people think it is) that can be addressed through tougher venue rules, it's not an inevitable consequence of FF&C.
From what source do you glean this purpose? The statute doesn't provide male and female parents for the child, doesn't prioritize the child for adoption by opposite sex parents, doesn't restore the parental rights of the birth parents, in fact it does nothing other than invalidate adoptions by two people of the same sex. The child is thereby tossed into a legal vacuum and if the OK legislature had any concern for what happens to the child at that point, it's not apparent from the statute. If there's a right of the child to adoptive, opposite sex parents, it's not to be found in that statute, quite apart from the obvious question of against whom the child's right is supposed to be enforceable.
"Invalid" is an adjective in English; I meant by "invalid adoption" exactly the same thing you do by "isn't an adoption".
If a straight couple claims to have adopted a child in Oklahoma right now, but the state doesn't think it's an adoption, the state has to handle it right now. It's going to handle it in exactly the same way as it would if the in-state straight couple was an out-of-state gay couple. Questions like who's responsible for the kid going to school already have answers; those answers wouldn't change.
The law removes custody from the kids' parents without giving it to anyone else.
Again, this situation isn't unlike a straight couple whose adoption wasn't proper. When the law says that the straight couple doesn't have custody, it also says that someone else does (probably the birth family). Why wouldn't the law say the same thing in the case of the gay couple who doesn't have custody? (Of course the birth family may not be anywhere nearby, but that too can happen with a straight couple.)
Can you provide any examples of "a straight couple whose adoption wasn't proper" where no one had some form of legal custody?
. . . When the law says that the straight couple doesn't have custody, it also says that someone else does (probably the birth family). . . .
Where does the law say this? And where does the Oklahoma law assign parental responsibilities in cases where it refuses to recognize an adoption decree?
Also, in many cases, giving the responsibility to the birth mother means giving it to no one. She likely gave up her kid because she didn't want to be a parent. And how do you give her back custody? As soon as you leave Oklahoma, the original custody order kicks back into force and she has no parental rights or responsibilities.
If the Oklahoma law is vague about what happens when an out-of-state same-sex couple shows up with kids, then a standard legal solution to that would be for judges to fill in the blanks until the Oklahoma legislature says otherwise. Probably one of the two parents would be given an opportunity to decide which of them would be the "legal" parent. This would make adoption by same-sex couples in Oklahoma (via out-of-state proceedings) less appealing, which apparently is what the Oklahoma legislature thinks would best serve the interests and the rights of children. They may well be wrong, but that's the way a democracy works, unless there is some constitutional provision to the contrary. And everything I've read about the Full Faith and Credit Clause indicates that it does not truly imply what these two federal judges have inferred, for a variety of reasons, some of which I listed above.
So judges can use their judgment to fix stupid laws. I see. But if the judgment granting adoption to two parents was void, how could it operate to give custody to either parent? Your solution also violates due process. A state can't deprive a parent of his or her parental rights without due process of law. Any other ideas?
As to your polygamy example, if a judgment in one state gave three people legal parental responsibility for a child, I would expect other states to give effect to that judgment.
As to en banc review, be careful what you wish for. These facts are about as sympathetic as they get for the pro-FF&C position. The anti-gay crowd would be wise to pick a case where their indifference to hurting children was less obvious.
The proper question is "who should decide" whether the law helps kids, doesn't help kids, is good, is bad, is sane, or is insane. And the answer that Americans have fought and died for over the course of 200 years was not: a handful of lawyers in unelected lifetime government jobs who can never be corrected except by constitutional amendment.
Now you're just going over the rhetorical deep end. The people of Oklahoma have no constitutional right to undo the decision of the people of California. The Constitution gave California the right to decide who to allow to adopt children. The FF&C Clause only requires that Oklahoma respect that decision. That's part of what makes us "one nation, indivisible. . . ."
I think that happens now, though not in the polygamy context. If a person with children gets married, then divorced, then remarried, the step parent can acquire an obligation to support just like the birth parents and presumably that obligation is enforceable in other states.
If you want to think that I'm part of an "anti-gay crowd" then go ahead. The FF&C Clause does not automatically do whatever you like and forbid whatever you dislike. If a husband goes from State X to State Y where he obtains a divorce decree awarding him sole custody of his children plus all of the joint property plus a marriage license with one of his daughters, I wonder if you would also require State X to respect all of those decisions once the man returns to State X. Most people would think that quite an absurd interpretation of the FF&C Clause.
Americans didn't fight and die for a system in which the legislature of a state can enact whatever laws it likes, regardless of how popular those laws may be. They can't pass laws regulating interstate commerce, or depriving people of property without due process, or inflicting cruel and unusual punishment or any number of other things. And if you don't like the fact that the judiciary consists of people who are appointed by the President and affirmed by the Senate, feel free to propose a constitutional amendment providing that federal judges will be elected. Our ancestors fought for an appointed federal judiciary, not an elected one.
Read the original post, marriage licenses aren't judgments. Anyway if popular sentiment was the basis for constitutional interpretation, FF&C woudn't exist at all since I'd be willing to be that "most people" aren't even aware there is such a clause, let alone what purpose it serves.
And without FF&C, defendants in lawsuits in state A will be free to refuse to pay, run to state B and insist that the plaintiff will have to try the case all over again in state B. Of course, if the defendant loses again he can just run to state C and keep running until he exhausts all 50 states.
This is question-begging. It also ignores that states have choice of law doctrine (including renvoi) precisely for this reason, which is why the procedure/substance distinction is so indeterminate. Anyone who can answer this question without begging it?
Um, no. Choice of law doctrine limits that. This is why I asked for an answer that fits with complex litigation practice. Again, anyone who can answer this question without begging it? (Or throwing up impossible floodgates arguments?)
This is 100% irrelevant to my question.
I wasn't referring to that case, specifically, I was responding to the 4:53 pm post and making the point that legislatures are not, in fact, free to enact whatever laws they like. My 3 examples are just a few of many things that a legislature cannot do.
This is question-begging. It also ignores that states have choice of law doctrine (including renvoi) precisely for this reason, which is why the procedure/substance distinction is so indeterminate. Anyone who can answer this question without begging it?
Choice of law rules determine which state's law applies in adjudicating the claim in the first place, they're not a means by which states can escape the effect of FF&C.
Um, no. Choice of law doctrine limits that. This is why I asked for an answer that fits with complex litigation practice. Again, anyone who can answer this question without begging it? (Or throwing up impossible floodgates arguments?)
If you think choice of law rules somehow prohibit a defendant from relocating to another state after judgment is rendered, I don't think you understand what choice of law rules are. They're rules for adjudicating the claim in the first place, FF&C is about enforcing the judgment.
How is the adoption of a child by a same sex couple analogous to a father raping his daughter?
You also did not respond to my point that your proposal to deal with the problem (terminating one parent's parental rights) violates the Due Process clause. Do you have any constitutional suggestions about how the Oklahoma courts could deal with a child made parentless by their statute?
I'm thinking it also wasn't "a random guy on the internet who magically makes up case law and stated intentions of bills that don't exist left and right" either, no?
Uh, it is you who is confused. You seem to be underestimating the intelligence of state judges making choice of law determinations. My point is that COL rules would determine whether X wins in the first place. Judges often manipulate the substance/procedure classification to apply the law of the state with the strictest standard, so that the benefit of forum-shopping is negated and the ultimate judgment is of the same quality as would have been if brought in the proper court. A defendant running around from state to state in your hypo would thus have no valid argument and would lose in all 49 other states. So no floodgates would open.
That's 100% wrong.
This hypo is not on point with the case we are discussing.
In your hypo, the person is moving into State X to avoid a law in State Y.
In this case, the person is moving into State X and claiming State Y's law applies to it in State X despite State X's law to the contary.
Are you seriously suggesting that a judge examines the substantive law of all 50 states in order to determine which one has the strictest rules so he can somehow pick that state on a choice of law analysis, whether or not that state has anything to do with the case at issue?
Are you saying if a Florida resident negligently runs into a Georgia resident in Georgia, sues in Florida and wins, and the Defendant then moves to Alaska, that somehow the Florida court pre-empted this by examining the law of Alaska at the time of the trial in order to see whether Alaska or Florida law was more plaintiff friendly in this case?
I could add that my state (California) rejected the substance / procedure dichotomy for choice of law analysis decades ago and it's not the only state to have done so.
This simply confirms my earlier statement that you simply are not aware of how choice of law rules work.
No. That is ridiculous. There are only so many relevant facts. Place of accident, etc. Judges usually face a choice between 2 or 3 jurisdictions at most. Your question shows you have no idea what you are talking about. California may have abandoned the distinction, but it still lives in many jurisdictions, and judges use it creatively.
Exactly, and when the defendant moves to one of those other 47 states after judgment is rendered, how exactly did your choice of law rules prevent him from doing so?
I think you are missing (perhaps due to carelessness) that I agree with Andrew Hyman that the distinction between marriages and adoptions is flimsy. I don't think an adoption should be treated differently than a marriage.
Did you read what I wrote? My conclusion was that your argument was an impossible floodgates argument because no defendant would win in any of the other 47 states. My point was not that it was impossible for defendants to move; it was that it was impossible for defendants to win, thus no floodgates. Your floodgates argument, therefore, is totally irrelevant to the discussion.
Ton answer these questions in order:
1. You are known by your actions. Something may walk like a duck, quack like a duck, look like a duck, and have the DNA of a duck, and still believe themselves to not be a duck. Similarly, one may may 'hate the sinner, not the sin', have 'nothing against gay people', write about laws discriminating against gay people with approval, and still believe they are not a duck. Clear?
2. You are correct, the FF&C credit clause does not. However, if you subscribe to originalism, it does not do what you want it to in this case either. The law is against you. If you want a living, or people's Constitution, feel free to argue otherwise.
3. Clearly, there is an absence of knowledge regarding this area of the law. First, marriage is a res, requiring in rem jursidiction over the res of the property, as well as personal jursidiction over both people in the marriage in order for the court to have jurisdiction over certain things. In your overwrought example, if the husband moved to a new state and met the residency requirements of the new state (say, six months), then the courts of that state would have jx over the res of the marriage and the power to enter a divorce decree that would be recognized by other states. They would not have jx over child custody unless the state had acquired personal jx over the children. The state would have no power to assign alimony or child support against the party over whom they had no personal jx. They could only do an equitable distribution of assets located within the state that were sufficiently described (in rem, again). As for your daughter marriage- first, wow, lay off the telenovelas. Second, there is a great line of Supreme Court cases regarding the recognition of these cases... divorce decrees are FF&C approved (Williams v. North Carolina 317 US 287 (1942)).
Remember- FF&C is well established. Just because you do not like it, does not mean you can ignore the Constitution. Oklahoma is free to continue to discriminate against gay people by prohibiting them from adopting within the state, but they cannot sunder a created family bond just because a person makes the mistake of traveling to that cesspool of ignorance.
Question begging, again.
They would not have jx over child custody unless the state had acquired personal jx over the children. The state would have no power to assign alimony or child support against the party over whom they had no personal jx. They could only do an equitable distribution of assets located within the state that were sufficiently described (in rem, again).
Why doesn't this cut in favor of Andrew Hyman's argument? I do not see why it cuts against it.
Plunge, if you think I have made up some case law, why not be more specific? And if you think that I “waxed long and hard" against gay rights, why not quote me, or at least say at what time I did so? I support the right of states to allow gay couples to become adoptive parents, and I also think there is nothing in the Full Faith and Credit Clause that necessarily forbids other states from reaching a different conclusion.
Side questions: did you make up your user name just for this particular discussion? Isn't that a little shortsighted? Is this really the only discussion you are interested in ever commenting on here? Or was there some other reason for making an account just for this thread?
You first said things like "I'm sure that most Oklahomans, including the sponsors of this bill, want to do what's best for children, and that's the primary motivation here" and then went on in much longer subsequent post (cite: THIS COMMENT THREAD) to talk about what the "primary purpose" of the bill was, yadda yadda yadda.
Then all of a sudden you turned around and declared that you didn't care about the issue or have any opinions to offer.
There is if you want to explain how people in Oklahoma will deal with the parentless children this law creates. Your solution (terminating the parental rights of one of the kid's parents) violates the parent's due process right. You say this mess is the right result, so how would you deal with it?
Show that you're not indifferent to the kids you would turn into legal orphans by explaining the legal framework you think Oklahoma judges should use to protect the kids.
On another point, I know that the US Supreme Court has ruled that there's a public policy exception to the FF&C Clause, but what part of the text supports the exception? Or was this just judicial activism that a strict constructionist Court should reverse?
Your handle is Plunger.
(a) The animating purpose of the Constitution's Full Faith and Credit Clause “was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 234, 80 L.Ed. 220. As to judgments, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. See, e.g., Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 877, 134 L.Ed.2d 6. A court may be guided by the forum State's “public policy” in determining the law applicable to a controversy, see Nevada v. Hall, 440 U.S. 410, 421-424, 99 S.Ct. 1182, 1188-1190, 59 L.Ed.2d 416, but this Court's decisions support no roving “public policy exception” to the full faith and credit due judgments, see, e.g., Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 1217, 92 L.Ed. 1561.
Kupec v. Cooper, 593 So.2d 1176 (Fla. 5th DCA 1992).
By statute, a judgment of court establishing the relationship of a parent and child by adoption, which is issued pursuant to due process of law, by a court of any jurisdiction within or without the United States will be recognized by Florida. Section 63.192, Fla.Stat. (1991). If the evidence shows that the adoption proceedings were in compliance with another state's law and that law is similar to the law of Florida, then Florida will give it full faith and credit. Wright v. Brown, 146 Fla. 572, 1 So.2d 871 (1941). However, Florida courts need not adhere to or enforce an adoptive status or the rights flowing therefrom when the adoption is repugnant to the laws or policies of Florida. Tsilidis v. Pedakis, 132 So.2d 9 (Fla. 1st DCA 1961) (Greek adoption by unmarried man repugnant to the laws and policies of Florida).
If judges decide to take all of the most important decisions away from the people, then democracy becomes basically a joke. The reason that Constitutions make specific exceptions to legislative power, rather than letting judges strike down whatever statutes they feel are wrong, is because the framers of the Constitution did not completely trust judges to run the country. After all, they had just fought a war against a king whom they accused of "abolishing our most valuable Laws" (see Declaration of Independence).
Anyway, Public Defender also asks, "what part of the text supports the [public policy] exception?" You might start with the Republican Form of Government Clause. And, as I mentioned at 12:59 PM, a true originalist would probably say that the first sentence of the FFCC merely involves admissability of evidence, and the real power is in the second sentence where Congress is authorized to determine the "effect" of that evidence. And DOMA suggests that Congress wanted to protect the traditional family unit.
I'll be bowing out soon, due to other commitments.
What I believe you are missing in this debate is the ability of the people of Oklahoma to invalidate the judgments of the people of other states. FF&C means that states *must* recognize the judgments of other states, even ones they do not agree with. If one, very religious state, enacts draconian rules making it nearly impossible to get divorced, it doesn't mean that they can refuse to acknowledge the valid divorces of other states. If Congress wants to change the way states can effect this with regards to adoptions, they may do so under the auspices of the second clause of the FF&C clause, but they have not seen fit to do so (the DOMA may suggest things to you, but the text says nothing about adoption).
You may not like this ruling, but this is legally sound and in keeping with the Constitution and the text. If you do not like it, the solution is to either ban gay people from adopting in other states or to have Congress pass a Defense of Adoption Act. That's the kicker with originalism, though- it works both ways. You cannot argue that the DOMA 'suggests' something, or that FF&C doesn't say what it, in fact says, if you are an originalist.
Don't like it? You need to amend the Constitution. Darn hippy librul. *grin*
Under your interpretation, every lesbian and gay couple in Oklahoma can go out of state for adoption papers, and then come back to Oklahoma to demand that those adoption papers continue to have full legal force. I just don't happen to agree with you that anything in the Constitution compels such a result. And please note: it may be a perfectly wonderful result. Or not.
At least you acknowledge that that's what this law is about--making kids miserable. You're more honest than the people who passed it.
And how do they do that without violating the due process right of a parents not to have their parental rights terminated without due process of law?
Under your interpretation, every lesbian and gay couple in Oklahoma can go out of state for adoption papers, and then come back to Oklahoma to demand that those adoption papers continue to have full legal force.
Yeah. So.
I am not sure you aware how adoptions work. We could be talking about a non-minor adoption. Or an adoption by a foster family pending the TPR of the biological parent(s) after a TPR. Or a stepparent adoption. Or an adoption by a relative after a death. But I assume you have in mind the classic image of a private adoption of an unwanted minor child. In that case, assuming the private couple meets the requirements of the forum state (which often includes, among other requirement, a *residency requirement*, a home study within the jurisdiction, and several procedural hoops), has a valid adoption, then travels back to Oklahoma, then yes.
But in order to do this, the family would have to move out of state for a lengthy period of time and, in all likelihood, establish a domicile in the forum state. Significant hurdles to an adoption. The primary effect of this law is to sever legal bonds, and to hurt children (because these gay couples are often unmarried and it would sever all bonds) of people traveling through the state or people forced to relocate to fabulous Oklahoma- not exactly a gay mecca.
There may also be an intersection with the ICPC (Fed. Law- interstate compact on the placement of children) if one state attempts to place an adoptive child with a gay couple in Oklahoma... but that would be a Federally superceding issue, and the ICPC does not directly address the issue.
Which basically just restates the question at issue, which is whether FF&C requires Oklahoma to recognize an adoption validly granted in California.
If judges decide to take all of the most important decisions away from the people, then democracy becomes basically a joke.
The people of California decided that adoptions by same sex couples are acceptable and validly granted one of the adoptions at issue in this case to a couple resident in California.
Anyway, Public Defender also asks, "what part of the text supports the [public policy] exception?" You might start with the Republican Form of Government Clause.
You got any evidence of original understanding of the Republican Government clause that supports that point of view?
And DOMA suggests that Congress wanted to protect the traditional family unit.
I thought you wanted the original understanding of the constitutional text to govern. Now you want the Congress of the moment to govern the interpretation of the Constitution?
Anyway, DOMA is silent on adoptions.
If they're referring to the courts of Greece, then that judgment wouldn't have constitutional FF&C since that applies only to other states of the US, not foreign countries.
Much like people used to go out of state to get divorced to the state with the most easy-going rules for getting divorced. And yet the Republic survived.
Adoption is, of course, much much harder than getting married or getting divorced. It can take years and lots and lots of scrutiny. Just stepping out of the state for a long weekend isn't going to do it.
Yes, much as they can choose which state has the best marriage laws or divorce laws or laws on any number of other subjects. So what?
The second sentence explicitly allows Congress to determine the "effect" in other states. An originalist (like me) would say that that means the first sentence cannot possibly prescribe the "effect" in other states, and therefore only governs the admissability of evidence. The "effect" can only be determined by looking at federal statutes, one of which is DOMA, and another of which is 28 USC 1738.
Even if the first sentence of the FFCC is (mis)construed as prescribing the "effect" in other states, that first sentence would allow time-honored exceptions (just like the First Amendment allows prosecutions for slander).
Anyway, I've got to go now. Thanks for the conversation. Goodnight.
The child would still (in most cases) have its biological parents.
A birth certificate says that a child named X was born to parents Y and Z, on a certain day and at a certain location. After an adoption, typically the child's name is changed as well as his legal parents. Therefore, the normal procedure is to re-issue the birth certificate to say that child A was born to B and C. It involves a little legal fiction, but it's much better than the alternative, that is, no birth certificate for A - especially when the adoption record is sealed, making it virtually impossible for A to show a link back to X, and with the intention that A will not know about X, Y, or Z.
Yeah. So.
The problem is that if Oklahoma cannot enforce its own law on its own citizens, then, in fact, it cannot enforce its own law. The ability to pass a law that cannot be enforced is a symoblic, not an authentic power. Either Oklahoma has an authentic power to legislate in this area or it does not. The tension here is between the Ninth and Tenth Amendments and FF&C. You are arguing that the FF&C Clause renders Oklahoma's law a nullity. That seems a bit absurd, given that the default purpose of FF&C is to preserve federalism and uphold laws, not vitiate them.
Not really, but I can't think of any gay examples, either. Somebody had custody before the gay parents adopted, just like someone had custody before the straight parents (claimed to have) adopted. If the adoption is not considered legitimate, then they still have custody. It may, of course, be hard to contact the people who have custody, but that's possible in either case.
I'm not so sure. Perhaps it varies according to jurisdiction, but where I used to practice, a non-step-parent adoption had two stages. First, the court would terminate the parental rights of the natural parent(s), then the court would approve the petition for adoption. The two stages could happen at the same hearing, but they did not have to -- and very frequently did not. If someone was adjudged a completely inadequate parent, the courts could and would terminate that person's parental rights -- even with no adoptive parents in sight. The child then became a ward of the state. Sometimes adoptive parents were found for the child, sometimes the child lived in foster care until they attained the age of majority.
So, long story short, if you invalidate an adoption, it's likely that there is no one -- other than the state itself -- who is entitled to custody. The parental rights of the natural parents have likely long since been terminated. They are legally strangers to the child. The natural parents have no more claim the child in question than any random stranger on the street.
I will list three things, two of which are similar:
1. Adoption
2. Divorce
3. Marriage
Hint: The two that are similar require a judgment from a court.
Which things are similar? Why, divorce and adoption, of course! The bread and butter of family law. There is also a great amount of case law (HUGE AMOUNT) applying FF&C to divorces, and a great amount of case law applying FF&C or the related comity doctrine to adoptions.
So which is the stronger legal argument?
1. Adoptions are family law judgments like divorces, so FF&C should be applied to those judgments as we do to divorces.
OR
2. We don't like gay marriages, and marriages are like adoptions, so we can ignore the Constitution when it comes to adoption judgments.
If a man gets a divorce in state X along with all marital assets, is that a judgment that must be respected in another state Y?
Wrong. The biological parents almost certainly live in the state where the adoption decree terminates their parental rights and responsibilities. As others have pointed out, the biological parents have as much responsibility for the kid (and the kid has as much claim on the biological parents) as any five names selected at random from the phone book.
The biological parents are legal strangers to the child.
You are arguing that the FF&C Clause renders Oklahoma's law a nullity.
No, Oklahoma can control what adoptions it permits within its borders, but it can't contol what adoptions other states permit. Sometimes Oklahoma gets stuck with adoption decrees that it would not have issued. You wouldn't need the FF&C Clause if states were always happy about recognizing each other's judgments.
Plus, loki13 pointed out that Congress has already acted to regulate out of state adoptions, so your concerns about Oklahomans voluntarily taking responsibility to care for children have been addressed.
Finally, doesn't Oklahoma have to articulate a public policy beyond "we won't recognize adoptions by same sex couples"? So far, no one has been able to articulate a even a rational basis to render these kids parentless.
Plus, no one has been able to explain how Oklahoma gets around the parents' right not to have their parental rights terminated without due process of law.
Here, no one has been able to articulate even a rational basis for this law. It's irrefutable that this law, if enforced, would help no one, would hurt kids, and would almost certainly violate the rights of parents not to have their parental rights terminated without due process.
In sum, to argue a public policy exception, you have to argue a public policy.
Dale, this passage incorrectly conflates two doctrines in an area where both pro-gay and anti-gay advocates have succeeded in sewing widespread public misunderstanding about the law. The "public policy exception" is NOT part of Full Faith and Credit Law; it is part of common law conflict-of-laws principles. The former is largely irrelevant to the marriage-recognition question, and the latter is irrelevant in Oklahoma because it has been overridden by statute.
Under the traditional, American common law rule, a state generally recognizes foreign (incl. out-of-state) marriages that were valid where celebrated. But under the public policy exception to that common law rule, a state does not have to recognize foreign marriages that would violate its own strong public policy. Because this recognition rule and exception are matters of common law, however, they can be superseded by statute or constitutional amendment, as they have been in many U.S. states with respect to same-sex marriages. Oklahoma has specifically overridden the common law rule and exception: "A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage." Okla. Stat. Ann. tit. 43, § 3.1. The recognition rule and its public policy exception are no longer the law of Oklahoma with respect to recognition of out-of-state same-sex marriages. The question is controlled by the statute, which mandates blanket non-recognition.
Nor is Oklahoma's policy of blanket non-recognition unconstitutional under current full faith and credit doctrine, even without the largely superfluous Defense of Marriage Act. The recognition rule and public policy exception are NOT constitutional doctrines. They are NOT part of full faith and credit law. Full faith and credit law establishes only a "minimum contacts" rule as a constitutional floor. A leading precedent is Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981), in which the Court held that a forum state can refuse to apply the law of another state whenever the forum has minimum contacts with the parties or the transaction. Under this controlling interpretation of the Full Faith and Credit Clause, the only time that Clause would prevent Oklahoma from applying its blanket non-recognition rule to an out-of-state same-sex marriage would be when Oklahoma has no minimum contact with either one of the spouses, with the marriage, or with any transaction in which the marriage is legally implicated. Those circumstances will be exceedingly rare because typically the Oklahoma also would lack personal jurisdiction, so the suit would never be litigated in Oklahoma to begin with.
There is a consensus among American conflict-of-laws scholars that the Full Faith and Credit Clause is almost completely irrelevant to the interstate recognition of marriages. See, e.g., Andrew Koppelman, SAME-SEX/DIFFERENT SEX: WHEN SAME-SEX MARRIAGES CROSS STATE LINES 114-36 (2006) (chapter entitled "The Irrelevance of Full Faith and Credit and the Defense of Marriage Act"); Patrick J. Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 CREIGHTON L. REV. 353 (2005). The first author is a progressive supporter of same-sex marriage; the second author is the former dean of a conservative Catholic law school and a leading expert on American conflict of laws.
Two advocates--neither of whom is a conflict-of-laws expert--are responsible for (deliberately) creating the misperception that the Full Faith and Credit Clause requires interstate recognit