Monday, August 6, 2007

Family Values Victory in the 10th Circuit

On August 3, 2007 the 10th Circuit Court ruled that the Oklahoma law that banned the recognition of out of state adoptions by same-sex couples was unconstitutional under the Full Faith and Credit Clause.

Finstuen v. Crutcher is a great victory for gay parents who previously risked having their parental rights stripped away upon entering the state of Okalahoma.

I found two things interesting about this case. First the Court decided to base its judgment on the Full Faith and Credit Clause without even addressing the Due Process or Equal Protection Clauses. The latter two are obvious points of contention to the Oklahoma statute—the law categorically rejected out of state adoption certificates granted only to couples of the same sex.

It seems the Court did not want to get into the politically risky realm of equal and fundamental rights for gays. It was probably wise on their part. This is the Heart Land we’re talking about after all—the justices probably would have been burned in effigy and/or received death threats had they decided that gays had a constitutional right to adopt and be treated as equals.

I also think the potential impact this decision may have on DOMA is interesting because the easiest challenge to DOMA is that it too violates the Full Faith and Credit Clause by saying states do not have to recognize same sex marriages performed in other states. The 10th Circuit Court in Finstuen v. Crutcher, however, seemed to be careful in its wording saying:

In applying the Full Faith and Credit Clause, the Supreme Court has drawn a distinction between statutes and judgments. Specifically, the Court has been clear that although the Full Faith and Credit Clause applies unequivocally to the judgments of sister states, it applies with less force to their statutory laws [my emphasis].

Are they trying to set aside an exception that would allow DOMA to stand—somehow trying to classify one state’s acceptance of a same sex marriage as a ‘statutory law’ rather than a ‘judgment’, and thus not equivalent under the Full Faith and Credit Clause? Or are they trying to say that the Full Faith and Credit Clause is weaker, as a matter of fact, in cases of statutory law because of the generally accepted public policy exception?

Either way it seems the 10th Circuit tried to make their decision in Finstuen v. Crutcher just narrow enough so as not to deal a fatal blow to DOMA. However they provided just one more powerful background case to any future case that would deal with DOMA.

1 comment:

Stephen Clark said...

Elizabeth, I don't blame you for being suspicious of the Tenth Circuit's motives in making reference to the distinction between recognition of judgments and recognition of laws. But that distinction has been a fundamental part of full faith and credit law for decades--really from the time of the first Congress in 1789.

The consensus among legal scholars, progressive as well as conservative, is that the Full Faith and Credit Clause does not, except in exceedingly rare situations, require one state to recognize marriages performed in another state. But you have to be careful, because there are both pro-gay and anti-gay advocates who have been claiming otherwise--without any solid legal foundation--for years. Evan Wolfson is one on the pro-gay side; Robert Bork is one on the anti-gay side. (Anti-gay advocates make the argument as a scare tactic to make the Federal Marriage Amendment seem necessary.)

Stephen Clark
Professor, Albany Law School