Having Faith in Full Faith & Credit: Finstuen, Adar, and the Quest for Interstate Same-Sex Parental Recognition

• Author: Joseph A. Fraioli
• Position: J.D. Candidate, The University of Iowa College of Law, 2013
• Pages: 365-396

365

Having Faith in Full Faith & Credit:

Finstuen, Adar, and the Quest for Interstate

Same-Sex Parental Recognition

Joseph A. Fraioli

ABSTRACT: In 2011, the Court of Appeals for the Fifth Circuit rendered a

holding in Adar v. Smith that allowed Louisiana to refuse to fully

recognize a New York adoption decree on the grounds that the adoptive

parents—a gay couple—would not have been able to legally adopt in

Louisiana. The Fifth Circuit’s decision directly conflicts with a 2007

decision by the Tenth Circuit, Finstuen v. Crutcher, which held that the

Full Faith and Credit Clause of the United States Constitution requires that

states recognize and evenhandedly apply their own laws to sister-state

adoption decrees, even if such decrees would be invalid in that state or

frustrate that state’s public policy. This Note examines the circuit split and

advocates that the Supreme Court adopt the Tenth Circuit’s rationale.

Doing so would give effect to the Full Faith and Credit Clause’s purpose and

ensure that same-sex families receive the same interstate adoptive rights and

protections as heterosexual families.

I. INTRODUCTION ...................................................................................... 367

II. FULL-FAITH-AND-CREDIT JURISPRUDENCE AND ITS IMPORTANCE TO

ACHIEVING LGBT EQUALITY ................................................................. 368

A. A BRIEF HISTORY OF THE FULL FAITH AND CREDIT CLAUSE ................ 368

B. THE CLAUSE’S REACH: FEDERALISM AND STATE OBLIGATIONS WITH

RESPECT TO JUDGMENTS AND INCIDENTS OF JUDGMENTS .................... 370

C. THE “PUBLIC POLICY” EXCEPTION .................................................... 373

D. THE CLAUSE AS APPLIED TO FAMILY LAW .......................................... 376

 J.D. Candidate, The University of Iowa College of Law, 2013; B.A., Ithaca College,

2010. I would like to thank the student writers and editors of Volumes 97 and 98 of the Iowa

Law Review for their work on this Note. Additionally, I thank Leslie Barry, Mikaela Shotwell,

Jason Beekman, Professor Ann Estin, and Professor William Buss for their continual support,

input, and wisdom. Lastly, I thank my parents for raising and loving two LGBT children and not

wavering in the face of ignorance, hatred, and homophobia.

366 IOWA LAW REVIEW [Vol. 98:365

III. THE STRUGGLES OF SAME-SEX PARENTS LACKING PROPER LEGAL

PROTECTIONS ........................................................................................ 378

IV. THE CIRCUITS SPLIT .............................................................................. 382

A. THE TENTH CIRCUIT: FINSTUEN V. CRUTCHER ................................ 382

B. THE FIFTH CIRCUIT: ADAR V. SMITH ................................................ 385

V. THE FIFTH CIRCUIT MISAPPLIES THE FULL FAITH AND CREDIT

CLAUSE .................................................................................................. 387

A. LOUISIANA MUST RECOGNIZE APPELLEES’ ADOPTIVE-PARENT

STATUS ............................................................................................ 388

B. LOUISIANA MUST APPLY ITS OWN BIRTH-CERTIFICATE LAWS

EVENHANDEDLY ............................................................................... 389

C. LOUISIANA MAY NOT REFUSE FULL FAITH AND CREDIT ON PUBLIC-

POLICY GROUNDS ............................................................................. 391

VI. WHERE DO WE GO FROM HERE?: THE FUTURE OF SAME-SEX

PARENTAL RECOGNITION ....................................................................... 392

A. THE NEED FOR A SUPREME COURT DECISION ..................................... 392

B. THE IMPORTANCE OF PARENTAL RECOGNITION FOR UNMARRIED

SAME-SEX PARENTS .......................................................................... 394

VII. CONCLUSION ......................................................................................... 396

2012] HAVING FAITH IN FULL FAITH & CREDIT 367

I. INTRODUCTION

In 2007, the United States Court of Appeals for the Tenth Circuit

rendered a landmark decision that greatly contributed to the realization of

full parental rights for same-sex couples. In Finstuen v. Crutcher, the Tenth

Circuit found that state governments had a constitutional obligation under

the Full Faith and Credit Clause (the “Clause”) to apply their laws

evenhandedly to adoption decrees from sister states, even if such adoptions

were not possible in the forum state.1 The decision rippled through the

LGBT2 and legal communities, spurring both praise and criticism.3 It was a

glimmer of hope for same-sex parents—that one day LGBT families could

receive legal recognition and constitutional protection nationwide.

That is, until the Fifth Circuit reached an unexpected en banc decision

in Adar v. Smith in April 2011. The court, facing an almost identical issue as

the Tenth Circuit in Finstuen, reached the exact opposite conclusion by

allowing Louisiana to refuse to apply its birth-certificate laws to an adoption

from Oklahoma.4 The decision was a hard blow to the LGBT community.

Lambda Legal’s Kenneth D. Upton, counsel for the plaintiffs in Adar,

warned that the Fifth Circuit’s ruling “carves out an exception to the Full

Faith and Credit Clause . . . and to the uniformly recognized respect for

judgments that states have come to rely upon,” thereby leaving LGBT

1. See Finstuen v. Crutcher (Finstuen II), 496 F.3d 1139, 1156 (10th Cir. 2007). In this

Note, “sister state” refers to the state that entered the final decree or judgment, and “forum

state” refers to the state in which enforcement of that judgment was sought.

2. In this Note, “LGBT” refers to persons who identify as lesbian, gay, bisexual, or

transgender, or who otherwise identify as a sexual or gender minority.

3. Compare Spencer B. Ross, Finstuen v. Crutcher: The Tenth Circuit Delivers a Significant

Victory for Same-Sex Parents with Adopted Children, 85 DENV. U. L. REV. 685, 699–700 (2008)

(“While gay rights advocates will continue to have numerous battles for the foreseeable future,

it should be comforting to know that children of gay couples are entitled to the same protection

as all others.”), and Krista Stone-Manista, Parents in Illinois Are Parents in Oklahoma Too: An

Argument for Mandatory Interstate Recognition of Same-Sex Adoptions, 19 LAW & SEX UALITY 137, 157

(2010) (asserting that the interpretation of the Clause in Finstuen is “necessary to give life to a

standard in family law prioritizing stability and the long-term interests of an adopted child”),

and Mark Strasser, Interstate Recognition of Adoptions: On Jurisdiction, Full Faith and C redit, and the

Kinds of Challenges the Future May Bring, 2008 BYU L. REV. 1809, 1853–54 (claiming that the

Oklahoma statute in this case “serves no one’s interests” and that the Tenth Circuit merely

“applied and reaffirmed existing law”), and Jason Howe, U.S. Court of Appeals Upholds Decision

Striking Down Oklahoma’s Adoption Invalidation Law in Lawsuit Brought by Lambda Leg al, LAMBDA

LEGAL (Aug. 3, 2007), http://www.lambdalegal.org/news/co_20070803_us-court-appeals-

upholds-striking-down-ok-adoption-invalidation-law (praising the Tenth Circuit’s decision as

striking down an “extreme” law, “benefit[ing] same-sex couples and the ir families”), with

Recent Case, Constitutional Law—Full Faith and Credit Clause—Tenth Circuit Invalidate s Oklahoma

Statute Barring Recognition of Out-of-State Adoptions by Same-Sex Couples—Finstuen v. Cr utcher, 496

F.3d 1139 (10th Cir. 2007), 121 HARV. L. REV. 660, 665 (2007) (criticizing the Tenth Circuit for

not allowing “the people of Oklahoma . . . [to] retain[] their right to choose whether or not to

recognize adoptions by same-sex couples”).

4. Adar v. Smith (Adar III), 639 F.3d 146, 162 (5th Cir.) (en banc), cert. denied, 132 S. Ct.

400 (2011).