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.