2012] HAVING FAITH IN FULL FAITH & CREDIT 367
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.