Same-sex Adoption: The Latest Interstate Recognition Hotspot

As we noted earlier, the 10th Circuit has issued a new decision striking down the Oklahoma law denying recognition to out-of-state same-sex adoptions, as violating the federal Full Faith & Credit Clause (“FFCC”). The decision highlights the difference in treatment that various official actions by states receive under FFCC. Let’s not neglect an opportunity here to start by actually reading the words of this important but often overlooked and poorly understood section of the U. S. Constitution:

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. (United States Constitution, Art. IV, Sec. 1.)

In many decisions over the decades, the U. S. Supreme Court has explained the historical importance of the FFCC in knitting together the various states into one Nation:

The animating purpose of the full faith and credit command, as this Court explained in Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935)

was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.

Id. at 277, 56 S.Ct., at 234.

See also Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 1217, 92 L.Ed. 1561 (1948) (the Full Faith and Credit Clause “substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns”).

Baker by Thomas v. General Motors Corp., 522 U.S. 222, 232 (1998).

The 10th Circuit draws heavily from the Supreme Court’s Baker decision in holding that “there is ‘no roving “public policy exception” to the full faith and credit due judgments,’ [cit.] and [Oklahoma] presents no relevant legal argument as to why the Doels’ out-of-state adoption judgments should not be recognized under the Full Faith and Credit Clause” (emphasis the court’s). The stress the 10th Cir. panel placed on the word “judgments” by underlining it is a recognition that judgments historically have been entitled to the “fullest” full faith and credit in a way that other state actions (e.g., statutes, regulations, licenses granting legal statuses) have not.

By way of contrasting example, throughout America’s history, even with the FFCC in place from the beginning, the states have consistently maintained that interstate recognition of marriage (a legal status created by license and ceremony, not through a judicial proceeding) is by comity, i.e.<, discretionary, rather than a mandatory dictate of the FFCC. Thus, for instance, State A has often grappled with whether its public policy against incest is so important that a legal marriage from State B between people of closer consanguinity than is permitted in State A will be recognized in State A. Such analysis is at the heart of the current judicial confrontation with same-sex "marriage" underway in Rhode Island, in which ADF is involved.

The Supreme Court in Baker emphasized that the FFCC requirement of interstate recognition is at its strongest regarding judgments, a decisive factor for the 10th Cir. faced with a statutory bar to recognition of judgments granting adoptions:

Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments …. The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land …. A court may be guided by the forum State’s “public policy” in determining the law applicable to a controversy. But our decisions support no roving “public policy exception” to the full faith and credit . . .