Does Heather have two mommies? The importance of full faith and credit recognition for adoptions by same-sex couples.

• Jurisdiction: United States
• Author: Lombardo, Lauren
• Date: 01 May 2012

Introduction I. Are States Required to Give Full Faith and Credit to Valid Adoptions in Sister States? A. The Full Faith and Credit Clause, Its Limitations, and Its Interplay with the Effects Clause 1. The Difference Between Full Faith and Credit Due Judgments and Statutory Laws 2. "Public Policy Exceptions" to the Full Faith and Credit Clause 3. The Difference Between Recognition and Enforcement of Sister States' Judgments 4. The Effects Clause B. Full Faith and Credit and Adoption by Same-Sex Couples II. Recognition in Oklahoma and Enforcement in Louisiana: A Conflict Between the Tenth and Fifth Circuits A. Finstuen v. Crutcher B. Adar v. Smith C. Circuit Split III. Congress Should Pass an Act that Will Protect the Parental Rights of Same-Sex Adoptive Parents A. Judicial Solution: All Circuits Should Follow the Tenth Circuit B. Legislative Solution: Congress Should Pass a "Protection of Adopted Children Act" Conclusion INTRODUCTION

Lucy and Jennifer Doel legally adopted a baby in California in 2002. (1) While living in Oklahoma, where their child was born, Lucy and Jennifer requested an amended birth certificate with both of their names listed as "parents." (2) This request was denied for public policy reasons, as Oklahoma does not permit same-sex couples to adopt children, so only Lucy Doel was listed on the birth certificate as the child's mother. (3) Although a birth certificate is not supposed to confer parental rights, (4) Jennifer was not permitted to accompany her child at the hospital during a medical emergency, and only "the mother" (Lucy) was allowed access to their sick daughter. (5) Thus, the denial of an amended birth certificate deprived Jennifer of an important parental right--the ability to visit her child in the hospital and make medical decisions for the child she legally adopted.

Jennifer and Lucy were eventually awarded an amended birth certificate by the Tenth Circuit, (6) but other parents have not been so lucky. Oren Adar and Mickey Smith were denied an amended birth certificate by the Fifth Circuit, which held that their valid New York adoption did not have to be "enforced" by Louisiana's Registrar. (7) The court reasoned that amending the child's birth certificate with both men's names listed as parents was not recognition, but enforcement of their valid adoption. (8) While the Fifth Circuit argues that "birth certificates are merely 'identity documents that evidence ... the existing parent-child relationships, but do not create them,'" (9) there are no guarantees that Mr. Adar and Mr. Smith would be able to visit their child in the hospital, make major medical decisions for him, or have any of the other rights guaranteed to adoptive parents in the Fifth Circuit, simply because they are a same-sex couple. (10) This not only affects the rights of Mr. Adar and Mr. Smith, but, more importantly, the rights of their adopted child.

Much of the recent national dialogue has revolved around whether or not same-sex couples should be permitted to marry. (11) While gay marriage advocates are winning significant victories throughout the country, (12) there is another even more immediate issue to address. Right now in the United States, many same-sex couples, married or not, are raising their own families. Approximately seventeen percent of same-sex couples are raising children, (13) and approximately 65,000 of the children being raised by same-sex couples are adopted. (14) Although the rights of same-sex adoptive parents remain in the shadow of the gay marriage debate, it is crucial that a focus be placed on protecting existing families. Yet, because of the varying state laws on adoptions by same-sex couples, this is not so simple. Normally, sister states are required to recognize the "public Acts, Records, and judicial Proceedings of every other state" through the Full Faith and Credit Clause of the United States Constitution. (15) With "public policy exceptions" and questions about enforcing other states' judgments, however, the Full Faith and Credit Clause's application to adoptions by same-sex couples is not clear cut. Thus, a unique question has been raised: do states have to give full faith and credit to valid adoptions in sister states?

This Note examines the Full Faith and Credit Clause of the United States Constitution and how it relates to adoptions by same-sex couples. Part I explores the Full Faith and Credit Clause, its current judicial standing, and when states can apply "public policy exceptions" to this Constitutional right. It then looks at how full faith and credit jurisprudence has affected adoption and the difficulties same-sex couples are having in assuring that their valid adoptions are recognized throughout the country. (16) Part II addresses the current circuit split between the Tenth and Fifth Circuits, which raises the question of whether issuing an amended birth certificate is recognition or enforcement of an out-of-state adoption. Part III proposes both judicial and legislative resolutions, but argues that a legislative resolution is a more immediate answer toward ensuring the rights of both same-sex adoptive parents and their adopted children. This Note concludes by suggesting that Congress pass a "Protection of Adoptive Children Act," which would guarantee that same-sex parents who have validly adopted their children will be given the same rights as all other adoptive parents across the United States.

1. ARE STATES REQUIRED TO GIVE FULL FAITH AND CREDIT TO VALID ADOPTIONS IN SISTER STATES?

   The Full Faith and Credit Clause touches upon almost all areas of American jurisprudence. Examples can be found in cases involving insurance, (17) labor relations, (18) bankruptcy, (19) gambling, (20) products liability, (21) family matters, (22) and adoption. (23) Part I of this Note explores the Full Faith and Credit Clause of the United States Constitution, its limitations, and its application to adoption. The background information on these subjects informs the later discussion on the current circuit split regarding the full faith and credit due to out-of-state adoptions by same sex couples.

   1. The Full Faith and Credit Clause, Its Limitations, and Its Interplay with the Effects Clause

      The Full Faith and Credit Clause of the United States Constitution indicates that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." (24) The Federal Law that codifies this clause states:

      [s]uch Acts, records and judicial proceedings or copies [of any State, Territory, or Possession of the United States], so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or us- age in the courts of such State, Territory or Possession from which they are taken. (25) The Effects Clause, which directly follows the Full Faith and Credit Clause in the U.S. Constitution, states that "Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (26) Read together, these clauses represent the idea that states must recognize the laws and judgments of their sister states, but Congress reserves the right to determine exactly what this recognition requires.

      In the process of developing the Constitution, the Founders thought to add a clause "for the purpose of transforming an aggregation of independent, sovereign states into a nation." (27) The fact that the Full Faith and Credit Clause exists "reveals that nonuniformity in state laws led to interstate tension even before the Founding." (28) Thus, in a nation born of several independent colonies, it was considered important to have an overarching policy that protected the acts, records, and judicial proceedings of the still semi-autonomous states. According to the Supreme Court, "the purpose of the [Full Faith and Credit Clause] was to replace the international law rule of comity with a constitutional duty of states to honor the laws and judgments of sister states." (29) This clause assured a litigant that a local judgment would be valid throughout the country. (30) The Full Faith and Credit Clause was developed at least in part to give peace of mind to anyone who had received a valid judgment in their favor, as the clause guarantees that judgment will follow the person throughout the United States. The Full Faith and Credit Clause "focused on harmonizing the often conflicting interests of fifty separate sovereign states," (31) and suggests that "[s]ome restriction on the sovereign power of individual states to ignore sister-state judgments was necessary to create a workable union." (32) The Full Faith and Credit Clause, therefore, can trump state sovereignty in order to ensure that the several states work together as a viable whole.

      1. The Difference Between Full Faith and Credit Due Judgments and Statutory Laws

         State sovereignty derives from the Tenth Amendment, which states "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (33) Therefore, any power not expressly given to the federal government through the Constitution is considered to be the province of the individual states. Since the Full Faith and Credit Clause has the ability to trump state sovereignty, the Supreme Court has checked this immense power by giving different weight to the categories listed within the Clause. In fact, "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." (34) If the purpose of the Full Faith and Credit Clause is to ensure res judicata, (35) then it makes sense that the Court would hold that, "[a]s to judgments, the full faith and credit obligation is exacting. A final judgment in...