Out-of-State Gay Adoptions Must Be Recognized

U.S. District Judge Robin J. Cauthron struck a blow for gay and lesbian adoptive parents against newly emerging efforts on the part of Christian conservatives to curb their rights.

In a May 19 ruling, Cauthron found that the state of Oklahoma was obligated under the full faith and credit clause of the U.S. Constitution to recognize the validity of adoptions by same-sex couples approved by courts in other states. The court ruled that a 2004 amendment to Oklahoma’s adoption law prohibiting such recognition violated the 14th Amendment’s due process and equal protection clauses.

Granting summary judgment to the plaintiffs in a case brought by Lambda Legal on behalf of three same-sex couples who had adopted children out of state, the judge, appointed to the federal bench in 1991 by President George H. W. Bush, found that the amendment was clearly unconstitutionally targeted against gay parents. The amendment had been adopted after one of the plaintiff couples was successful in obtaining an Oklahoma birth certificate showing both men to be parents of their adoptive child.

In August 2002, Gregory Hampel and Edmund Swaya, a Washington state couple, jointly adopted an Oklahoma-born girl called V in Cauthron’s ruling, in a proceeding in the King County Superior Court in Washington. As part of that proceeding, Hampel and Swaya agreed that they would bring V back to Oklahoma from time to time to visit with her birth family.

To avoid any problems they might encounter during such visits, Hampel and Swaya sought to have Oklahoma issue a new birth certificate for V showing both men as her parents. The state health commissioner sought advice from the state attorney general, who responded that under the federal constitution’s full faith and credit clause, the men were entitled to have Oklahoma recognize the adoption judgment of a Washington state court. The new birth certificate was issued.

However, when the officials involved publicized the matter, social conservatives in the Oklahoma Legislature became stirred up and enacted an amendment to the law governing recognition of out-of-state adoptions. The statute generally provides that out-of-state adoptions should be recognized, but the amendment states: “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.”

Lambda sued on behalf of three couples, the Hampel-Swayas and two lesbian couples, Lucy and Jennifer Doel, who had jointly adopted a child before moving to Oklahoma, and Heather Finstuen and Ann Magro. Both lesbian couples had completed second-parent adoptions before moving to Oklahoma, making both partners in each case legal parents, but the couples were unable to get proper birth certificates issued by Oklahoma authorities. The two couples were able to show that their inability to have their adoptions recognized were inconveniencing them on a daily basis because in each case one of the women, not being named on an Oklahoma birth certificate, had occasions when she was not empowered to act as a parent.

The Hampel-Swayas alleged that although they had received an Oklahoma birth certificate before passage of the amendment, they were uncertain whether it would be honored and so had avoided traveling to Oklahoma with V to visit her birth family.

The state sought dismissal of the lawsuit in part on the ground that none of the plaintiffs had legal standing to challenge the amendment’s constitutionality. In order to sue in federal court, a plaintiff must show an actual injury, since federal courts are not authorized to issue advisory opinions.

Ironically, Judge Cauthron found that the Hampel-Swayas in fact did lack standing to bring this lawsuit because they had received a birth certificate naming both men as parents, and had not returned to Oklahoma or suffered any personal deprivation. Any injury on their part was wholly speculative.

On the other hand, Cauthron had no trouble finding that both of the other couples, the Doel family and the Magro-Finstuen family, had legal standing, in light of the very real deprivations they were suffering through the state’s refusal to recognize their parental status.

Lambda claimed that the federal Constitution’s full faith and credit clause compels Oklahoma to recognize a court adoption judgment from another state, and Cauthron agreed, rejecting the state’s argument that adoption orders should be treated as less binding than other court determinations. She also rejected the state’s argument that it could refuse to recognize an out-of-state adoption judgment because of Oklahoma’s stated policy against allowing same-sex couples to adopt within the state.

Cauthron found ample support in U.S. Supreme Court precedent that there is no exception based on the public policy of Oklahoma for the requirement that it recognize valid court orders from other states.

Most significantly, Cauthron found that the statute substantively violated the 14th Amendment rights of the children and their parents. The Supreme Court has recognized that adoptive parents have the same rights as natural parents, and that the parental rights of natural parents are “fundamental” in terms of constitutional law. For a state to refuse to recognize or otherwise interfere with a legal parent’s rights, that parent must be found unfit or to pose a risk of harm to the child. The law denying such rights must be based on a compelling state interest.

The court found the Oklahoma adoption amendment did not meet this constitutional test. The state did not demonstrate how it advanced the welfare of children or preserved traditional families—in fact, out-of-state courts had found that these adoptions were in the best interests of the children.

“The Amendment attempts that break up [of the families] only because the Plaintiff adults are of the same sex,” Cauthron wrote. “Such an act cannot survive under due process jurisprudence.”

Cauthron also found an equal protection violation. The amendment, on its face, does not discriminate based on sexual orientation, but she found that it was enacted with the intention of denying parental status to gay parents. As such, its discriminatory intent was clear.

Cauthron looked to the way that the Supreme Court in years past dealt with state laws that denied legal rights to “illegitimate” children, and found a strong analogy there. By refusing to let such a child inherit, bring a wrongful death action after the loss of a parent, or compel child support because of their illegitimate status, a state was depriving them of equal protection of the laws.

Cauthron found the same to be true here, since adoptive children of the plaintiff parents were similarly deprived of the benefits to which they are entitled. No justification Oklahoma could put forth supports depriving these children of such rights.

Interestingly, Cauthron found that Oklahoma had missed the point of the case by relying heavily on the 11th Circuit’s decision in the 2005 Florida Lofton case, in which that court upheld a state ban on gay people adopting children. Cauthron found Lofton to be irrelevant to the issues in this case, because these plaintiffs had already adopted their children lawfully in court proceedings, so the question of their right to adopt was no longer before the court. The only question was whether Oklahoma could refuse to recognize those lawful adoptions.

The state could attempt to appeal this ruling to the 10th Circuit Court of Appeals in Denver, which hears appeals from the federal courts in Oklahoma.