Gay Adoption and Federalism

Earlier this year, Colorado passed a second parent adoption bill.  One of the main impacts of the bill is that it permits gay and lesbian couples to adopt a child together.  What happens when one of those couples moves to say, Oklahoma?

The 10th Circuit Court of Appeals enhanced the impact of that bill last week, holding that states that do not themselves provide for second parent adoptions, are never the less, required to honor the birth certificates of children adopted in other states, in a case arising in Oklahoma.This ruling is also binding precedent in Kansas, Colorado, Wyoming, Utah and New Mexico, and it is persausive authority in the rest of the United States.

The 10th Circuit Court of Appeals found unconstitutional a state law in Oklahoma intended to deny recognition to adoptions by same sex couples in other states, under the Full Faith and Credit clause of the United States Constitution.

The claims of two of three couples seeking to invalidate the law in federal court were rebuffed on “standing” issues in the case, on the grounds that the injuries they claimed to suffer from the law were merely hypothetical.  A third couple who were denied a change in birth certificate, which in turn prevented both of them from being allowed to join their adoptive child in a hospital emergency room, were held to have established an injury sufficient to allow them to challenge the law in court. 

The 10th Circuit refused to heed objections from the state that the issue was “moot” because Oklahoma would concede the validity of the adoption initially disputed under the unique facts of that particular case, in part, because it wasn’t clear that the representative of the state that was a party in the litigation had the authority to make the appropriate concessions.  (For odd procedural reasons, Oklahoma’s chief birth certificate officer, rather than the state attorney general, was the government official representing the state in this case.)

An important basis for the decision was that because adoptions are the results of court proceedings, rather than other types of statutory acts of another states, thus adoption decrees are considered “judgments.”  While there are circumstances in which a state can refuse to recognize some acts of other states on “public policy” grounds, no similar exception exists for judgments from the courts of other states.

While the 10th Circuit doesn’t discuss the matter, the subtext that goes with that distinction is that “public policy” exceptions to recognizing marriages from other states have been upheld as not violating the Full Faith and Credit clause of the United States Constitution (although divorce decrees, because they are court judgments, are entitled to that protection).

This basis for the ruling, however, may limit its effect in practice.  The 10th Circuit noted that:

Full faith and credit does not, however, mean that States must adopt the practices of other States regarding the time, manner, and mechanism for enforcing judgments.  Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the even-handed control of forum law.

In this case, because Oklahoma law clearly affords all adoptive parents the same rights as all other parents.  The Full Faith and Credit clause, furthermore states that it must be “even-handed” in the way that enforcement measures are applied to foreign judgments.  So, the out-of-state adoption in this case gives both adoptive parents the full rights of parents in Oklahoma.  But, the 10th Circuit left open the door for Oklahoma to change its laws to treat adoptive parents, generally, differently from birth parents, or to find some other way to change to local “enforcement” impact of any adoption decree, without regard to the state issuing it.

Notably, the 10th Circuit also found no reason to discuss the federal “defense of marriage” act, because a parent-child relationship, rather than a marriage relationship, was at issue in the case.  But, its ruling implied that even a federal law attempting to create a public policy exception for a court judgment might be unconstitutional, as the United States Constitution affords no exception to the rule that court judgments from other states must be enforced by all states.

Also notably, just because some rather case specific procedural and factual issues made it possible for this particular case to produce a ruling on the merits, this doesn’t mean that the decision only applies to those facts.  The precedent that the Oklahoma non-recognition statue isn’t constitutional on the merits under the Full Faith and Credit clause remains binding law in the 10th Circuit in all future cases (unless and until the decision is reversed, either by the U.S. Supreme Court, or another 10th Circuit ruling).

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