Adoptions by Lesbian and Gay Parents Must be Recognized by Sister States Under the Full Faith and Credit Clause Despite

• Author: Barbara J. Cox
• Position: Professor of Law, California Western School of Law
• Pages: 751-785

Page 751

I Introduction

I come to the question of interstate recognition of adoptions by gay men and lesbians from perhaps a slightly different place than some speakers at this symposium. In 1993, when the Hawaii Supreme Court released its decision in Baehr v. Lewin,¹ I became intrigued with the question of whether lesbian and gay couples could go to Hawaii, get married, return home, and have their marriages recognized. One of the reasons I became interested in this question was because my parents and both of my sisters were married in a state different than the one where they now live.

Like many people and countless newspapers, I originally assumed that the Full Faith and Credit Clause of the United States Constitution² would control this question. But upon researching it, I discovered that the U.S. Supreme Court has not used the Full Faith and Credit Clause when discussing marriage (which it has not done very often) and neither have most state courts. Although the argument can and has been made that marriage recognition should be controlled by the Full Faith and Credit Clause since the Clause applies on its face to the "acts" (or statutes) of the various states,³ the primaryPage 752 focus has been on the area of conflicts of law. Under most conflict of law theories, marriages valid where celebrated are valid everywhere, although a public policy exception does permit courts to refuse to recognize marriages that would violate the forum state's internal policies.

Unlike marriages, however, the question of interstate recognition of judgments does fall within the Full Faith and Credit Clause.⁴ The Supreme Court has held that every state must give judgments from other states "the same credit, validity, and effect" that would be given to the judgment in the state that rendered it.⁵ Thus, a valid, final adoption decree⁶ rendered in one state establishing a parent-child relationship between the adoptive parent(s) and the adoptive child(ren) must be recognized in every other state as equally valid as an adoption decree rendered in that other state.⁷ Differences between the states on local public policy, significant in whether one state will recognize the statutes of another state, do not provide exceptions to the constitutional command to recognize a sister state's valid, final judgments.

But for the discriminatory anti-marriage recognition statutes that Congress⁸ and thirty-six states have passed,⁹ the question of interstate recognition of the adoptions by lesbian and gay parents would bePage 753 unremarkable. It would be unremarkable due to the obvious requirement for one state, established by the U.S. Constitution and Supreme Court precedent, to recognize another state's judgments. Even with anti-marriage statutes on the books, courts have recognized the adoptions by parents in same-sex relationships, despite statutes that deny equal marriage rights to those couples.¹⁰ The question becomes somewhat less clear, however, when the adoption is based on the underlying relationship of a same-sex couple which has had their relationship legally recognized in the state granting the adoption. When the adoption at issue is based on a same-sex relationship recognized in one state, and another state's anti-marriage statute specifically declares that the second state will not recognize any "right or claim arising from such relationship,"¹¹ does the court in the second state still have to recognize the adoption?¹² Let me use a hypothetical to raise the question explicitly, a question that the rest of this article seeks to resolve.

Suppose that Ellen and Laurie live in California where they have registered with the State of California as domestic partners.¹³ One of the benefits of registering as domestic partners is that the couple becomes eligible for step-parent adoptions, a right that previously had been limited to married couples.¹⁴ Five years earlier, Ellen and Laurie had decided to become parents and raise children together. Ellen was artificially inseminated¹⁵ and gave birthPage 754 to their daughter, Martha, who is now four. Ellen and Laurie filed a petition for adoption in early 2002, using the step-parent adoption procedure by which Laurie could be legally recognized, along with Ellen, as one of Martha's parents.¹⁶

They decided to use the step-parent adoption procedure (instead of the second-parent adoption procedure) because the viability of second-parent adoption in California is in limbo, due to the case of Sharon S. v. Superior Court of San Diego County, which is currently on appeal to the California Supreme Court.¹⁷ In that case, the Fourth District Court of Appeals held that the California statutes did not authorize the use of a "modified independent adoption procedure" through which one lesbian parent could retain her parental rights while letting her partner also adopt her child(ren).¹⁸ Although thousands of such adoptions have been permitted in California,¹⁹ the continuing viability of second parent adoptions is in limbo until the California Supreme Court issues its decision in the case.

But a problem for Ellen, Laurie, and Martha has arisen with the promotion that Laurie has just received from her new employer. Although the promotion comes with recognition of Laurie's excellent work and a significant increase in responsibility and salary, it raises difficult questions for this family. The promotion requires Laurie to transfer to the company's office in Miami, Florida. Laurie and Ellen are concerned about whether Laurie should accept the promotion and move the family to Florida because of all thePage 755 press they have seen about Florida's ban on adoptions by gay men and lesbians contained in section 63.042(3) of the 2002 Florida Statutes.²⁰ Several courts in Florida have upheld the ban as constitutional, including, most recently, the U.S. District Court for the Southern District of Florida, in the case of Lofton v. Kearney.²¹

Florida should be required to recognize the valid, final adoption decree from California, despite the fact that Florida prohibits adoptions by lesbians under Florida law. As the Supreme Court noted in Williams v. North Carolina:²²

[W]hen a court of one state acting in accord with the requirements of procedural due process alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause merely because its enforcement or recognition in another state would conflict with the policy of the latter.²³

Just as divorce decrees from other states are entitled to recognition under the Full Faith and Credit Clause, so too are adoption decrees. But those who oppose the recognition of same-sex couples would argue that Florida should not have to recognize Laurie's adoption of Martha because of the ban in Florida of adoption by gay men and lesbians under section 63.042(3) of the 2002 Florida Statutes,²⁴ and Florida's anti-marriage statute section 741.212,²⁵which prohibits recognition of marriages by same-sex couples or our relationships that are treated as marriages. The anti-marriage statute specifically reads:

(1) Marriages between persons of the same sex entered into in any jurisdiction, ...or relationships between persons of thePage 756 same sex which are treated as marriages in any jurisdiction, ... are not recognized for any purpose in this state.

2) The state, its agencies, and its political subdivisions may not give effect to any public act, record, or judicial proceeding of any state ...of the United States ... respecting either a marriage or relationship not recognized under subsection (1) or a claim arising from such a marriage or relationship.²⁶

It is clear that this statute should not apply to Laurie and Sandy's situation for two reasons. First, their domestic partnership in California is not "treated as a marriage" because it provides extremely limited rights as compared to those provided to married couples, and thus does not come within the scope of the Florida statute.²⁷ Second, Florida will not be permitted to refuse to recognize a valid judicial proceeding from California due to the commands of the Full Faith and Credit Clause,²⁸ which the rest of this article will explain.

Others may argue that the so-called Defense of Marriage Act ("DOMA")²⁹ created an exception to the Full Faith and Credit Clause and prior Supreme Court precedent that excuses Florida from its usual obligation to recognize the California adoption judgment. Section 2 of DOMA states, in part: "No State ... shall be required to give effect to any . . . judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State,. . .or a right or claim arising from such relationship."³⁰But Congress could not have intended to invalidate the adoptions by same-sex couples in situations such as Laurie and Ellen's, even though the adoption was permitted in California as a "right arising from"³¹ the domestic partnership relationship between the two women. To do so would violate thePage 757 Full Faith and Credit Clause³² and alter almost two hundred years of Supreme Court precedent...