10th Circuit ruling likely heralds a rekindling of the gay marriage/activist judges shitstorm

Oklahoma, like every other state I’m aware of, has a statute requiring that the state and all its instrumentalities recognize parent-child relationships created by out-of-state adoptions. However, in 2003 the decent Christian members of the state legislature amended the statute to include the following language:

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.

Why the amendment? Because people of the same sex who adopt children are gay, and gay is bad. The Lawd Gawd Jehovah said so. Look it up.

Besides, gay people are people of the same sex who touch one another’s front bottoms. That’s just icky.

Also, if gay people are allowed to raise children, the children will grow up gay and raise gay children of their own. Before you know it, the whole country is one big gargantuan gayhole.

Anyhoo, yesterday the U.S. Court of Appeals for the Tenth Circuit decided Finstuen v. Crutcher (PDF, 37 pages). The court held that the statutory amendment prohibiting Oklahoma courts and government agencies from recognizing same-sex-couples adoptions approved by the courts of other states violates the Full Faith and Credit Clause of the U.S. Constitution, which reads:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

The vast majority of the court’s opinion was devoted to the state’s arguments that the court lacked jurisdiction to decide the case. Like all government lawyers, the Oklahoma Attorney General lives by the motto “Avoid arguing the merits at all cost.”

As to the merits, this was a very easy case. The Supreme Court has regularly and repeatedly held that the FF&CC requires states to recognize and give effect to the judgments of the courts of other states. There’s no general “public policy” exception to that rule. Orders granting adoption petitions are “judgments” for FF&CC purposes. Those propositions are firmly established and not subject to any reasonable dispute. Thus, the Oklahoma statute is unenforceable because it conflicts with the Constitution.

I haven’t yet checked any of the whacked out religio-conservative sites such as Rapture Ready or Free Republic, but predicting reactions isn’t terribly difficult:

  • Activist judges are shitting all over democracy by thwarting the will of the people.
  • More indicia of America’s moral depravity. The Minneapolis bridge collapse disaster was God punishing us in advance.
  • We’re on the slippery slope now! Today states have to recognize other states’ depraved gay adoptions. Tomorrow they’ll have to recognize other states’ depraved gay marriage.
  • We need the Federal Marriage Amendment now more than ever.

The slippery slope rubbish is especially vexing. There’s nothing in the Tenth Circuit’s opinion that holds, states, suggests, implies or even hints at a change in the long-standing rule that the FF&CC does not require recognition of out-of-state marriages that violate the home state’s “public policy.” Rightly or wrongly, courts (SCOTUS included) treat marriages much differently than they treat judgments for FF&CC purposes. I researched the issue around the time Congress was debating the federal Defense of Marriage Act and couldn’t find a single case in which a court forced a state to recognize an out-of-state marriage that it didn’t want to recognize.

Evangelicals, right wingers and the Bush Administration itself will no doubt lie about the import and meaning of the 10th Circuit’s decision. If so, call them on it.

And after you’re done calling bullshit, tell ’em Genghis Hitler says they’re gay.

Post a comment or leave a trackback: Trackback URL.


  • Elizabeth Schmitz  On August 6, 2007 at 1:42 pm

    from Schmitz Blitz: schmitzblitz.blogspot.com

    Court Victory for Family Values

    On August 3, 2007 the 10th Circuit Court ruled that the Oklahoma law that banned the recognition of out of state adoptions by same-sex couples was unconstitutional under the Full Faith and Credit Clause.

    Finstuen v. Crutcher is a great victory for gay parents who previously risked having their parental rights stripped away upon entering the state of Okalahoma.

    I found two things interesting about this case. First the Court decided to base its judgment on the Full Faith and Credit Clause without even addressing the Due Process or Equal Protection Clauses. The latter two are obvious points of contention to the Oklahoma statute—the law categorically rejected out of state adoption certificates granted only to couples of the same sex.

    It seems the Court did not want to get into the politically risky realm of equal and fundamental rights for gays. It was probably wise on their part. This is the Mid West we’re talking about after all—the justices probably would have been burned in effigy and/or received death threats had they decided that gays had a constitutional right to adopt and be treated as equals.

    I also think the potential impact this decision may have on DOMA is interesting because the easiest challenge to DOMA is that it too violates the Full Faith and Credit Clause by saying states do not have to recognize same sex marriages performed in other states. The 10th Circuit Court in Finstuen v. Crutcher, however, seemed to be careful in its wording saying:

    “In applying the Full Faith and Credit Clause, the Supreme Court has drawn a distinction between statutes and judgments. Specifically, 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.”

    Are they trying to set aside an exception that would allow DOMA to stand—somehow trying to classify one state’s acceptance of a same sex marriage as a ‘statutory law’ rather than a ‘judgment’, and thus not equivalent under the Full Faith and Credit Clause? Or are they trying to say that the Full Faith and Credit Clause is weaker, as a matter of fact, in cases of statutory law because of the generally accepted public policy exception?

    Either way it seems the 10th Circuit tried to make their decision in Finstuen v. Crutcher just narrow enough so as not to deal a fatal blow to DOMA. However they provided just one more powerful background case to any future case that would deal with DOMA.

  • genghishitler  On August 6, 2007 at 3:33 pm

    Thanks very much for stopping by, Elizabeth. That’s some first class analysis right there!

    The Tenth Circuit’s decision not to address the plaintiffs’ equal protection and due process claim accords fully with the age-old precept that courts shouldn’t decide constitutional issues unnecessarily. The FF&CC issue was a veritable no-brainer compared to the due process and equal protection issues. Political considerations may have played a part, but Article III judges are generally less susceptible to such pressures than the rest of us. All the more reason to maintain an independent judiciary, IMO.

    If DOMA ultimately goes down, I suspect it will be on ultra vires grounds, i.e., the statute exceeds the authority granted Congress in the second sentence of the FF&CC.

    DOMA’s viability may be a tempest in a teapot anyway. Invalidating DOMA would have little or no effect unless the FF&CC requires states to recognize out-of-state marriages in the first place. As I read the case law, that isn’t so.

  • Steve  On August 7, 2007 at 5:20 am

    genghishitler, your research is correct. The Court has long held that the Full Faith and Credit Clause and its implementing federal statute impose a very strong requirement that states recognize each others’ court judgments. But the Court has also long held that those sources do NOT impose a similar requirement on states to recognize each others’ “public acts.” So far, marriage recognition has always been treated as the latter–recognition of another state’s “public act”–and has not triggered the very strong requirement of recognition that judgments trigger. There is a consensus today among legal scholars that the Full Faith and Credit Clause is largely irrelevant to the marriage-recognition question. Adoption, in contrast, is a court judgment, triggering the very strong requirement of recognition. Really, the only remarkable thing about the 10th Circuit decision is that the court applied general full faith and credit principles without being distracted by the fact that the case happened to involve a same-sex couple.

    Stephen Clark
    Professor, Albany Law School

  • genghishitler  On August 7, 2007 at 6:24 am

    Thanks much for your analysis, Steve. It’s great to have a pro’s take on these important issues. Please feel free to stop by anytime.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: