Academic journal article Harvard Law Review

Constitutional Law - Full Faith and Credit Clause - Tenth Circuit Invalidates Oklahoma Statute Barring Recognition of Out-of-State Adoptions by Same-Sex Couples

Academic journal article Harvard Law Review

Constitutional Law - Full Faith and Credit Clause - Tenth Circuit Invalidates Oklahoma Statute Barring Recognition of Out-of-State Adoptions by Same-Sex Couples

Article excerpt

CONSTITUTIONAL LAW -- FULL FAITH AND CREDIT CLAUSE -TENTH CIRCUIT INVALIDATES OKLAHOMA STATUTE BARRING RECOGNITION OF OUT-OF-STATE ADOPTIONS BY SAME-SEX COUPLES.--Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).

The Union that binds the fifty states both contemplates and transcends interstate differences and tensions. Indeed, the fact that the Framers included in the Constitution a clause explaining that respect should "be paid to acts, records, &c., of one state in other states" (1) reveals that nonuniformity in state laws led to interstate tension even before the Founding. (2) Both the Full Faith and Credit Clause (3) and the Effects Clause (4) moderate this interstate tension: the first lays a groundwork for interstate relations, and the second empowers Congress to ease growing tensions when the normal framework fails. (5) These provisions, ratified over two hundred years ago, remain relevant today as tension reverberates between states that adhere to starkly opposing views on adoption by same-sex couples. Recently, in Finstuen v. Crutcher, (6) the Tenth Circuit held unconstitutional an Oklahoma statute barring recognition of out-of-state adoptions by same-sex couples, (7) declaring that the statute violated the Full Faith and Credit Clause. In ruling that adoption judgments fall outside of a judicially created public policy exception to that clause, the court exposed an area where the Full Faith and Credit framework falls short in moderating interstate tension. Pursuant to its authority under the Effects Clause, Congress should enact legislation that restores the right of Oklahoma's citizens to govern themselves.

Greg Hampel and Ed Swaya, both residents of Washington, adopted Oklahoma-born "V" in 2002. (8) At the couple's request, the Oklahoma State Department of Health (OSDH) issued a new birth certificate for V listing both men as V's parents. (9) The Oklahoma legislature responded by amending the adoption statute to ban official recognition of out-of-state adoptions by same-sex couples. (10) Anne Magro and Heather Finstuen had two children in New Jersey, where they obtained birth certificates for each child naming both Magro and Finstuen as parents; they subsequently moved to Oklahoma. (11) Lucy and Jennifer Doel adopted child "E" in California, and later became residents of Oklahoma. (12) After the amended adoption statute took effect, the Doels requested an Oklahoma birth certificate listing both Jennifer and Lucy as parents, which OSDH refused to issue. (13) All three couples sued to enjoin enforcement of the Oklahoma adoption amendment.

The plaintiffs brought suit in the Western District of Oklahoma. (14) In response to cross-motions for summary judgment, (15) the trial court ruled that Hampel and Swaya had only speculative fears that their legal status as parents would be challenged; therefore, they had suffered no injury and lacked standing. (16) The remaining plaintiffs, however, had suffered injuries, (17) and the court considered their full faith and credit, equal protection, due process, and right to travel claims in turn. (18) The court explained that the adoption decree required the sanction of a judicial officer and was therefore a judgment. (19) As a judgment, it was entitled to national recognition under the Full Faith and Credit Clause. (20) Further, the court dismissed the defendant's argument that Baker v. General Motors Corp. (21) permitted Oklahoma to ignore out-of-state judgments when those judgments "purported to accomplish an official act" that, like adoption, lay within Oklahoma's "exclusive province." (22) According to the trial court, that language in Baker referred only to judgments that command another state's action or inaction; because it was Oklahoma law, not the out-ofstate adoption decree, that required the issuance of the birth certificate, the exception was irrelevant. (23) The court concluded that the Oklahoma adoption statute violated the Full Faith and Credit, Equal Protection, and Due Process Clauses, but rejected the right to travel claim. …

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