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

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.

I. 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.

A. 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 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." (36) This logic guarantees that litigants do not forum shop around the entire United States until they receive a favorable judgment, and is the benchmark of res judicata. (37) Giving credence to other state's acts and records, however, may go against the policy of the forum state. The Court, therefore, has balanced the exacting nature of the Full Faith and Credit Clause with the sovereignty given to states through the Tenth Amendment, and has relaxed the requirements of the Full Faith and Credit Clause when it comes to sister states' acts and records. As noted in Baker ex tel. Thomas v. General Motors Corp., "[t]he 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 litigate.'" (38) States are thus permitted to look to their own public policy to determine whether or not a law of a sister state will be recognized within the forum state.

2. "Public Policy Exceptions" to the Full Faith and Credit Clause

This relaxation of full faith and credit to a sister state's statutory laws has led to the existence of a "public policy exception" to the Full Faith and Credit Clause, which permits a forum state to refuse to recognize the laws of a sister state if those laws are contrary to the forum state's public policy. (39) An example of this "public policy exception" is the Defense of Marriage Act (DOMA). The United States Code now defines marriage as "a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (40) DOMA provides that
   No State, territory, or possession of the United States, or Indian
   tribe, shall be required to give effect to any public act, record,
   or judicial proceeding of any other State, territory, possession,
   or tribe respecting a relationship between persons of the same sex
   that is treated as a marriage under the laws of such other State,
   territory, possession, or tribe, or a right or claim arising from
   such relationship. (41)


Because of the federal definition of marriage and DOMA, states can currently refuse to recognize a marriage between a same-sex couple that is valid in one state but offends the forum state's public policy. (42) DOMA would not be possible if states were required to give full faith and credit to the acts and records (i.e. statutory laws) of sister states.

While DOMA is an example of a "public policy exception" to the Full Faith and Credit Clause in terms of sister state laws, it is important to note that marriage flows through state law, not judgment, and there is still "no roving 'public policy exception' to the full faith and credit due judgments." (43) As held in Milwaukee County v. M.E. White Co., full faith and credit must be given to judgments even if the forum state would not entertain the case. (44) Additionally, the Court is "aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act of Congress require to be given to [a money] judgment outside the state of its rendition." (45) Therefore, the Supreme Court has made it clear that, while a "public policy exception" exists for sister states' statutory laws, this "public policy exception" does not exist for sister states' judgments. Under current case law, "states have a virtually ironclad obligation to give effect to judgments from sister states." (46)

3. The Difference Between Recognition and Enforcement of Sister States' Judgments

In terms of judgments, an additional consideration of the Full Faith and Credit Clause is the distinction between "recognizing" another state's valid judgment and the "enforcement" of said judgment. Baker states that:
   Full faith and credit ... does not mean that States must adopt the
   practices of other States regarding the time, manner, and mechanisms
   for enforcing judgments. Enforcement measures do not travel
   with the sister state judgment as preclusive effects do; such
   measures remain subject to the evenhanded control of forum law. (47)


An informative case on this issue is Hood v. McGehee, where children adopted in Louisiana brought a quiet title action concerning their adoptive father's land in Alabama. (48) Alabama, however, had an inheritance law that excluded children adopted in sister states. (49) While the adopted children argued that the law violated the Full Faith and Credit Clause, the Supreme Court held that there was no failure to give full faith and credit to the adoption. (50) In this case, Alabama recognized that the children were legally adopted but looked to its own law to enforce inheritance procedure within the state. Because the inheritance law was enforced "evenhandedly" (i.e. "no children adopted in other states could inherit land in Alabama from their adoptive parents"), (51) Alabama was not in violation of the Full Faith and Credit Clause. Therefore, the Full Faith and Credit Clause requires that the forum state recognize a sister state's judgment, but if the forum state has a law that governs the enforcement of that judgment, the forum state need only apply its own law in an evenhanded manner.

4. The Effects Clause

While the Supreme Court has clarified the scope of the Full Faith and Credit Clause by relaxing the requirement of recognizing sister states' laws and ensuring that forum states will have to recognize but not enforce their sister states' judgments, the Effects Clause blurs this clarification by giving certain powers to Congress. Although "[s]everal commentators have argued that the mandatory and uncompromising nature of the Full Faith and Credit Clause militates against reading the Effects Clause to allow Congress to limit the credit otherwise due state laws and judgments," (52) the existence of the Effects Clause "suggests that Congress does have an important role to play in determining what full faith and credit entails, and thus supports granting Congress that power." (53) Thus, the Effects Clause conveys certain powers to Congress, and these powers could, conceivably, be used to both limit and ensure recognition of state acts, records, and judicial proceedings.

Normally, the Tenth Amendment, which suggests that Congress cannot interfere with state matters unless that power was delegated to it in the Constitution, (54) would prevent Congress from restricting the sovereignty of the states through the use of the Effects Clause. It has already been noted that the Full Faith and Credit Clause can trump state sovereignty, and the Effects Clause is the vehicle for Congress to do so. The Effects Clause allows for Congress to "prescribe ... the Effect" of the Full Faith and Credit Clause, giving Congress the power to determine what "Acts, Records and judicial Proceedings" deserve full faith and credit, even if this decision impinges on state rights and sovereignty. Thus, the Effects Clause further elucidates the importance of the federal government's ability to use the Full Faith and Credit Clause for the betterment of the several states.

An example of the interplay between Congress, the Full Faith and Credit Clause, and state rights is the Parental Kidnapping Prevention Act of 1980 (PKPA). (55) Before 1980, states were not required to give full faith and credit to sister states' custody orders because all custody orders are subject to modification and, therefore, not final judgments. (56) Congress passed PKPA in 1980, however, which requires a receiving state to give full faith and credit to another state's custody or visitation order. (57) PKPA prevents a parent from leaving one state to try for a more favorable custody order in a different jurisdiction, and provides that every state
   "shall enforce according to its terms, and shall not modify.... any
   custody determination made consistently with the provisions of this
   section by a court of another State"... A State court may modify a
   custody determination made in another state if the court of the
   first state no longer has jurisdiction to modify the custody
   determination. (58)


The Effects Clause granted Congress the power to proscribe the effect of another state's judicial proceeding (a custody order), even though the judicial proceeding was not final. Thus, Congress "necessarily encroached upon a state's sovereignty over domestic relations matters as part of Congress's effort to address the specific problem of parental kidnapping." (59) This is a rarely used power, as a law will only be overridden if it damages substantial federal interests. (60) Therefore, when a matter is of federal importance, like preventing child kidnappings, the Effects Clause provides Congress with a way to tailor the Full Faith and Credit Clause to federal needs.

The current jurisprudence of the Full Faith and Credit Clause indicates a relaxation of the requirement to give full faith and credit to the statutory laws of sister states and an obligation to recognize but not to enforce those sister states' judgments. The Effects Clause gives Congress the ability to override state sovereignty to "prescribe ... the Effect" of full faith and credit, as long as the issue at hand is a matter of federal importance. (61) The next Section addresses how the Full Faith and Credit Clause applies to adoption generally and, more specifically, adoption by same-sex couples.

B. Full Faith and Credit and Adoption by Same-Sex Couples

Adoptions are performed on a state to state basis and the status of the adoption is determined by the state that authorizes it. (62) The current full faith and credit understanding of adoption is that if an adoption is valid, the status of that adoption will be recognized in other states as long as it is not contrary to the positive law and public policy of that state. (63) But note,
   [r]ecognition of a foreign adoption is accorded on principles of
   comity, or on the theory that full faith and credit must be given
   to the foreign judgment.... The fact that an adoption judgment
   entered by a court of another state could not have been entered by
   a court in the state of the forum, because in violation of its laws
   or policy, does not permit the court of the forum to deny it full
   faith and credit. (64)


The only instance where one state would not be required to recognize another state's valid adoption, then, would be when the adoption "ha[s] been rendered without jurisdiction, or obtained by fraud, and particular defects in the proceedings may render the decree subject to collateral attack." (65)

In addition, although there has been disagreement over whether adoptions should be seen as judgments or whether they should be subject to "public policy exceptions," it should be noted that both jurisdictions discussed in the conflict part of this Note agree that adoptions should be considered judgments. (66) This Note will assume the validity of the current jurisprudence, which treats valid adoptions as judgments. Therefore, for the sake of this Note, there is no question that adoption decrees should be viewed as valid judgments and awarded the appropriate full faith and credit recognition from sister states.

From this understanding, it should be no surprise that almost all valid adoptions that occur within the United States are given full faith and credit without a second thought. In fact, same-sex couples are currently the only parents having difficulty assuring full faith and credit to their valid U.S. adoptions. Because the ability for same-sex couples to adopt children changes so drastically from state to state, (67) same-sex couples are experiencing a unique situation where their parental rights may or may not be recognized as they travel across the country.

According to the 2010 U.S. Census, there are currently 646,464 same-sex couples in the United States, and approximately seventeen percent of those couples, or 111,033, are raising children. (68) In 2007, the Williams Institute reported that 65,000 of the children being raised by same-sex couples are adopted. (69) There are children "in approximately one-third of all lesbian and one-fifth of all gay male households." (70) Yet same-sex couples experience many restrictions across the United States when it comes to adoption. (7t) A few states specifically deny adoption to same-sex couples. Florida law bans all "homosexual" individuals from adopting. (72) Mississippi prohibits "adoptions by couples of the same gender," Michigan denies access to joint adoptions by same-sex couples who are married in other jurisdictions, (73) and Nebraska does not allow adoption by individuals "who are known to be homosexual or who are unmarried and living with another adult." (74) Utah does not allow adoptions by people who are cohabitating but not legally married, (75) which "effectively ban[s] same-sex couples from adopting because gays cannot marry in Utah." (76) Other states do not explicitly discriminate against same-sex couples but deny two parent adoptions to unmarried couples. (77) The reasons cited for denying adoption rights to same-sex couples include risks to children such as gender confusion, greater risk of losing a parent to AIDS, substance abuse, or suicide, instability of same-sex couples, and social stigma. (78)

There are currently three scenarios in the United States where both members of a same-sex couple can be recognized as legal parents. In states that allow same-sex marriages or civil unions, children born during the marriage are assumed to be the children of both parents, even if one parent is not biologically related to the child. (79) In addition to rights conveyed by marriage, at least ten states and Washington, DC, currently allow same-sex couples to adopt through a one-step process. (80) This means that a same-sex couple can adopt a child jointly without one member of the couple first adopting the child alone. Finally, at least twenty-seven states allow same-sex second parent adoptions, which is a process "used for non-biological or legally recognized parents to adopt their partner's child." (81) Second parent adoptions
   create a legal relationship between the ]second parent] and the
   child that generally would not exist in the absence of a legal
   adoption.... Once a court of competent jurisdiction enters a
   finalized adoption decree, an adoptive parent has all parental
   rights under applicable state law that a biological parent would
   have. (82)


States that allow same-sex couples to adopt rely on findings that report, almost uniformly, "no notable differences between children reared by heterosexual parents and those reared by lesbian and gay parents, and ... find[] lesbigay parents to be as competent and effective as heterosexual parents." (83)

The laws regarding adoption by same-sex couples are different around the country and often grounded in public policy. Therefore, some states have tried to circumvent the full faith and credit requirement due valid judgments by suggesting that the adoption goes against their positive law and public policy. (84) Other states recognize that, despite whether the adoption is contrary to their positive law and public policy, "[t]he fact that an adoption judgment entered by a court of another state could not have been entered by a court in the state of the forum, because in violation of its laws or policy, does not permit the court of the forum to deny it full faith and credit." (85) The current circuit split, addressed in Part II, brings light to this issue. Does a state need to recognize a valid adoption performed in a sister state if the adoption contravenes the forum state's public policy? If the forum state needs to recognize its sister state judgment, when do state actions switch from recognition to enforcement of the judgment?

II. RECOGNITION IN OKLAHOMA AND ENFORCEMENT IN LOUISIANA: A CONFLICT BETWEEN THE TENTH AND FIFTH CIRCUITS

The main point of tension in the issue of full faith and credit due out-of-state adoptions by same-sex couples is the current circuit split between the Tenth and the Fifth Circuits. The Tenth Circuit Court of Appeals has held that the Oklahoma Registrar is required to recognize valid, out-of-state adoptions by reissuing birth certificates with both adoptive parents' names, (86) while the Fifth Circuit has held that Louisiana is not required to reissue a birth certificate with both parents' names because it would constitute enforcement of an out-of-state adoption. (87) This issue has not been addressed in other circuits, but it is only a matter of time before it arises elsewhere. (88) This circuit split raises the relevant question: is reissuing a birth certificate according to the laws of the subject state recognition or enforcement of an out-of-state adoption?

A. Finstuen v. Crutcher (89)

From 2004 until 2007, the Oklahoma State Department of Health (OSDH) had on record a statute that held "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." (90) This amendment was passed in response to an opinion by the Oklahoma attorney general that declared Oklahoma was required to recognize validly issued out-of-state adoption decrees. (91) Three families brought suit against Oklahoma seeking to enjoin enforcement of the adoption amendment claiming that it violated their rights to full faith and credit of a valid, out-of-state judgment. (92)

The first family, a gay couple residing in Washington State who jointly adopted child V through an open adoption agreement with V's biological mother in Oklahoma, was denied standing because the OSDH had reissued a birth certificate for their child with both men listed as parents. (93) This birth certificate was reissued one month before the Oklahoma adoption amendment was enacted, and, in fact, was the impetus for the amendment. (94) Because the family only feared potential harm from traveling to Oklahoma, but had already been given a birth certificate, the state found that their "alleged injuries [were] simply too speculative to support Article III's injury-in-fact requirement for standing." (95)

The second family, a lesbian couple residing in Oklahoma with two children, was similarly denied standing because one of the women is the biological mother of the children. (96) Although the district court gave this couple standing, the Tenth Circuit found that the non-biological mother did not "establish that the amendment creates an actual, imminent threat to her rights as a parent or the rights of her adopted children, because she is not presently seeking to enforce any particular right before Oklahoma authorities." (97) Therefore, only one family, Lucy and Jennifer Doel and their child, E, was given standing in the Tenth Circuit. (98)

Lucy Doel adopted E in California in January 2002, while Jennifer Doel adopted E through a second parent adoption in California six months later. (99) The OSDH issued E a supplemental birth certificate naming Lucy Doel as the mother, but refused to reissue a revised birth certificate that would also acknowledge Jennifer as E's parent. (100) The Tenth Circuit determined that the Doels had suffered an "injury-in-fact" because they had not received a revised birth certificate, and that there was a causal connection between the injury and the defendant. (101) The defendant, Dr. Mike Crutcher, was the Commissioner of Health in the State of Oklahoma and "most directly responsible for the birth certificate that the Doels [had] requested...." (102)

The Tenth Circuit upheld the district court's decision that the Oklahoma adoption amendment is unconstitutional. (103) The decision in Finstuen v. Crutcher addresses the distinction between recognizing and enforcing out-of-state judgments, mentioning that:
   Full faith and credit ... does not mean that States must adopt the
   practices of other States regarding the time, manner, and
   mechanisms for enforcing judgments. Enforcement measures do not
   travel with the sister state judgment as preclusive effects do;
   such measures remain subject to the even-handed control of forum
   law. (104)


As discussed in Part I of this Note, Oklahoma must recognize a legal adoption by a sister state, but can look to its own laws to enforce that adoption. The Tenth Circuit made it clear, however, that, in this case, reissuing a birth certificate with both adoptive parents' names is required by Oklahoma law and needs to be applied in an evenhanded manner. (105) Oklahoma law states that "the State Registrar, upon receipt of a certificate of a decree of adoption, shall prepare a supplementary birth certificate in the new name of the adopted person with the names of the adoptive parents listed as the parents." (106) The Tenth Circuit concluded that the right to an amended birth certificate is determined by Oklahoma law. (107) Arising from this logic, reissuing a birth certificate is not enforcement of another state's judgment, it is merely recognition of another state's judgment and enforcement of the forum state's law. (108)

Additionally, Finstuen v. Crutcher concluded that adoptions should be viewed as valid judgments in the context of the Full Faith and Credit Clause. The Tenth Circuit addressed the fact that "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." (109) The court noted, however, that OSDH "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." (110) Adoptions necessarily go through the court system, whether they are contested or not, so the Tenth Circuit contended that they should be viewed as valid judgments. (111) This led to the holding in Finstuen that "final adoption orders and decrees are judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause." (112)

Finally, the court in Finstuen addressed one more important issue: whether there should be any "public policy exception" to the Full Faith and Credit Clause with respect to final judgments entered in a sister state. (113) After determining that adoptions are judgments, the court cited Baker ex rel. Thomas v. General Motors Corp. in determining that there is "no roving 'public policy exception' to the full faith and credit due judgments." (114) Therefore, unlike public policy exceptions such as DOMA, adoptions should always be afforded full faith and credit because they are considered valid judgments. According to the Tenth Circuit, when a judgment is made in another state, that judgment should be final.

A brief dissent by Judge Hartz indicates that he would not address the constitutional issues, but would affirm the judgment of the district court in terms of the Doels' claims. (115) Judge Hartz argues that, because "[t]he OSDH concedes in its brief that the statute challenged by the Doel plaintiffs does not preclude issuance of the birth certificates that they seek," (116) he sees no reason not to accept that concession. OSDH could argue that other statutes prohibit the issuance of a birth certificate, but since they did not raise that argument, it should not be considered upon appeal. (117)

For all of the reasons listed above, the Tenth Circuit declared that the Oklahoma statute prohibiting the recognition of valid, out-of-state adoptions was unconstitutional and required that the Oklahoma Registrar reissue a birth certificate for E with both Jennifer and Lucy Doel's names on it. (118) The Tenth Circuit determined that adoptions are valid judgments subject to the Full Faith and Credit Clause and that the reissuing of a birth certificate is subject to the evenhanded enforcement of the law of the forum state.

B. Adar v. Smith (119)

The Fifth Circuit faced a similar case to Finstuen v. Crutcher in Adar v. Smith. (120) Louisiana, like Oklahoma, had a statute stating that its registrar "shall make a new record ... showing ... the names of the adoptive parents." (121) Louisiana, unlike Oklahoma, did not have a restrictive law indicating that the state would not recognize adoptions by same-sex couples. In Louisiana, however, same-sex couples are not permitted to marry, (122) and only married couples may jointly adopt a child. (123)

Unmarried couple Mickey Smith and Oren Adar legally adopted Louisiana-born infant J in New York in 2006. (124) Louisiana Registrar, Darlene Smith denied their request for a new birth certificate for J with both of their names listed as parents. (125) The rationale behind denying the request was that "adoptive parents" in section 40:76(C) of the Louisiana Revised Statutes, "means married parents, because in Louisiana, only married couples may jointly adopt a child." (126) Ms. Smith offered to place one of the Appellee's names on the birth certificate because Louisiana allows single parent adoption, but not both of their names because they were unmarried. (127) Mr. Smith and Mr. Adar sued the Registrar for declaratory and injunctive relief, claiming that not reissuing J's birth certificate denies full faith and credit to their New York adoption decree. (128)

The district court ruled in favor of Smith and Adar on the full faith and credit claim, and "following the Registrar's appeal, a panel of [the Fifth Circuit] pretermitted the full faith and credit claim, concluding instead that Louisiana law, properly understood, required the Registrar to reissue the birth certificate." (129) The panel decision was vacated, however, when the court agreed to hear the case en banc, and the Fifth Circuit eventually reversed and remanded the district court's decision. (130) Unlike the Tenth Circuit, the Fifth Circuit viewed reissuing infant J's birth certificate as "compel[ling] within Louisiana 'an official act within the exclusive province' of that state." (131) The Fifth Circuit distinguishes Finstuen v. Crutcher because Louisiana does not require unmarried parents to be listed on a child's birth certificate. (132) The Fifth Circuit thus held that reissuing infant J's birth certificate would not be applying the forum law "evenhandedly" because the Louisiana law would never allow two unmarried individuals to be on the same birth certificate.

The Fifth Circuit also addressed some issues that were untouched in the Tenth Circuit's decision in Finstuen v. Crutcher. The Fifth Circuit determined that the obligation to give full faith and credit to a sister state's judgment does not give rise to a right vindicable in a [section] 1983 action. (133) The majority in Adar v. Smith held that Finstuen v. Crutcher is the only federal case to support the proposition that there is a right to a [section] 1983 action, and
   [o]ther federal courts, led by the Supreme Court, have uniformly
   defined the "right" as a right to court judgments that properly
   recognize sister-state judgments; they have confined the remedy to
   review by the Supreme Court; and they have held that lower federal
   courts lack jurisdiction to preemptively enforce full faith and
   credit claims. (134)


According to this reasoning, the federal circuit would not be the place to bring this particular claim. To receive any type of relief, according to the majority opinion, the Supreme Court would have to overturn the state court's decision.

Additionally, the Fifth Circuit questioned Smith and Adar's right to sue the Louisiana Registrar for denying them full faith and credit. The majority reasoned that the Supreme Court intervenes on full faith and credit "only after the state court denies the validity of a sister state's law or judgment." (135) The Fifth Circuit cited both its own cases (136) and cases from the Seventh Circuit (137) to argue that, "since the duty of affording full faith and credit to a judgment falls on courts, it is incoherent to speak of vindicating full faith and credit rights against non-judicial state actors." (138) The majority thus held that Mr. Smith and Mr. Adar were not properly suing Ms. Smith, because she was the state Registrar and not part of the court system.

Finally, and most important to the current circuit split, the Fifth Circuit focused the crux of its holding on the fact that Louisiana has not denied recognition to the New York adoption decree. (139) The majority reasoned that the Louisiana Registrar "concede[d] that the parental relationship of Adar and Smith with Infant J cannot be revisited in its courts" and "recognizes Appellees as the legal parents of their adopted child." (140) The Fifth Circuit held, therefore, that Louisiana did not deny full faith and credit by refusing to reissue a birth certificate that would be denied to any unmarried adoptive parents. (141) Citing Hood v. McGehee, (142) the majority claimed that if "Alabama is sole mistress of the devolution of Alabama land by descent," then "Louisiana can be described as the 'sole mistress' of revised birth certificates that are part of its vital statistics records." (143) Accordingly, the Fifth Circuit determines that reissuing a birth certificate would be enforcement of an out-of-state judgment. (144)

Judge Wiener proffered a passionate dissent to the majority opinion of Adar v. Smith. (145) While he argued that there is no basis in determining that full faith and credit to a sister state's judgment does not give rise to a right vindicable in a [section] 1983 action, (146) or that a state actor cannot be sued in a full faith and credit claim, (147) he was most adamant about the point that reissuing a birth certificate is recognition and not enforcement of an adoption. (148) Judge Weiner followed the rationale of Finstuen v. Crutcher in requiring Louisiana to reissue Infant J's birth certificate, not because of New York Law, but because of Louisiana's own law. He explained,
   Neither the Appellees nor I have ever claimed that, alone and in a
   vacuum, the FF&C Clause gives them the right to have their names
   appear on Infant J's birth certificate. But, Louisiana has elected
   to enact a "Record of Foreign Adoptions" statute that specifically
   addresses recording the status of out-of-state adoptive parents of
   Louisiana-born children.... This specialized statute unequivocally
   directs the Registrar to record all validly certified out-of-state
   adopadoption decrees by, inter alia, inscribing the names of all
   "adoptive parents" on revised birth certificates. (149)


According to Judge Wiener's argument, Louisiana should reissue Infant J's birth certificate because the state is required to "maintain 'evenhanded control' of its own birth certificate law." (150)

Despite Judge Wiener's dissent, the Fifth Circuit reversed the decision of the district court and determined that the Louisiana Registrar need not reissue infant J's birth certificate with both Smith and Adar's names listed as parents. Mr. Smith and Mr. Adar petitioned for certiorari in June 2011, but were denied in October 2011. (151)

C. Circuit Split

The decisions in Finstuen v. Crutcher and Adar v. Smith are in "undeniable conflict" with each other. (152) Both the Tenth and Fifth Circuits agree that adoptions are judgments, but see the role of the forum state very differently. The Tenth Circuit maintains that reissuing a birth certificate pursuant to the forum state's own law is akin to recognition of a valid out-of-state judgment and is bound by the Full Faith and Credit Clause, while the Fifth Circuit holds that reissuing a birth certificate is enforcement of a valid adoption and should only be required if the forum state would have issued the adoption under its own adoption laws. The Tenth Circuit assumes that reissuing a birth certificate is subject to the "evenhanded control of forum law," (153) while the Fifth Circuit claims that reissuing a birth certificate flows from the policy of the forum state. (154) Simply put, regarding enforcement of the judgments of sister states, the differing options of the Tenth and Fifth Circuits come down to statutory interpretation. The Tenth Circuit pays strict attention to Oklahoma's statutory language, noting that there is no qualifying explanation attached to the words "adoptive parents." The Fifth Circuit, however, believes that qualifying language is not necessary, because Louisiana defines "adoptive parents" as married couples through its own adoption law.

As families with adopted children often travel throughout the country, it is critical that this circuit split be resolved so that families are aware of their rights. The importance of this issue, coupled with the presence of a circuit split, paves the way for a judicial resolution of how these statutes should be interpreted. Part III of this Note will argue that the Tenth Circuit makes a much stronger argument in Finstuen v. Crutcher than the Fifth Circuit in Adar v. Smith, and that the other Federal Circuits should follow the Tenth Circuit. This Note goes on to argue, however, that a legislative solution would provide a much more immediate and encompassing solution to the problem and would better protect adoptive parents and their children.

III. CONGRESS SHOULD PASS AN ACT THAT WILL PROTECT THE PARENTAL RIGHTS OF SAME-SEX ADOPTIVE PARENTS

The current federal court split regarding whether or not states need to provide amended birth certificates to same-sex adoptive parents may seem like a small issue, but is indicative of a much larger problem. Although the Supreme Court will not decide on the issue of amended birth certificates this term, (155) this does not mean that this topic is not extremely important to both the rights of same-sex parents and the best interests of their adoptive children. While "[a] birth certificate is ... only prima facie evidence of parentage and does not, in and of itself, confer parental rights that must be recognized elsewhere," (156) denying same-sex adoptive parents of a birth certificate that opposite sex adoptive parents would be entitled to is a slippery slope towards denying same-sex adoptive parents more crucial and important rights regarding their child(ren). Not amending birth certificates could, among other things, lead to denial of hospital visitation or the inability to make important medical decisions for an adopted child. (157) It is crucial that all adoptive parents are given the same full faith and credit rights across the entire nation to protect the best interests of the most important players in this situation--the children.

In terms of a judicial solution, a Supreme Court ruling to reverse the Fifth Circuit's decision would have been a promising start, as that would have secured the right of same-sex parents to both be listed parents on their adoptive child's birth certificate. Adar v. Smith, however, was denied certiorari for the October 2011 term. (158) The Supreme Court seems to be stepping back from this topic, temporarily, to take the pulse of the nation. Therefore, until the Supreme Court does rule on the issue, the immediate solution is for other federal circuits to follow the Tenth Circuit's decision in Finstuen v. Crutcher and give same-sex adoptive parents all the same rights given to opposite sex adoptive parents through evenhanded control of the forum state's law. A judicial resolution, however, may not go far enough in guaranteeing parental rights to same-sex adoptive parents beyond the reissuance of a birth certificate. This Note then proposes that only a legislative solution will protect adoptive families beyond reissuing birth certificates until the Supreme Court can rule on full faith and credit for all adoptions by same-sex couples.

A. Judicial Solution: All Circuits Should Follow the Tenth Circuit

The first step in assuring that all legal adoptive parents across the U.S. receive full faith and credit protection is for all federal circuits to follow the Tenth Circuit in terms of reissuing birth certificates of children legally adopted by same-sex couples. The Tenth Circuit applied sound logic in Finstuen v. Crutcher when it held that the valid judgment of adoption in California should be given full faith and credit in Oklahoma, and that reissuing a birth certificate required Oklahoma to retain evenhanded control of forum law. The court interpreted the Oklahoma statute as saying that all adoptive parents, not a selected few, should be listed as parents on the child's birth certificate. The Fifth Circuit used dubious logic in Adar v. Smith to suggest that Louisiana did not need to reissue the birth certificate for Infant J. (159) While the Fifth Circuit is correct that "[f]orum state law governs the incidental benefits of a foreign judgment," (160) the Adar decision ignored the crucial aspect that "such measures remain subject to the evenhanded control of forum law." (161) As the dissent in Adar v. Smith points out, Louisiana birth certificate law, not adoption law, determines that "adoptive parents" are entitled to a revised birth certificate. Not reissuing a birth certificate to Mr. Smith and Mr. Adar denied them a right given to all other adoptive parents, thus the statute was not applied evenhandedly. (162) The Louisiana birth certificate law requires the Registrar to "make a new record ... showing ... [t]he names of the adoptive parents." (163) Therefore, "[t]he real problem is that Louisiana is refusing rights created by its own law, but only to a subset of valid out-of-state adoptions." (164) Louisiana's birth certificate law does not indicate that "adoptive parents" means "parents that would be allowed to adopt in Louisiana," thus, Mr. Adar and Mr. Smith, who legally adopted Infant J in New York, are entitled to the rights of "adoptive parents" according to the Full Faith and Credit Clause.

Additionally, the Fifth Circuit applies questionable logic when making excuses for why Mr. Adar and Mr. Smith do not have a vindicable [section] 1983 action, a subject that is not even addressed by the Tenth Circuit. The Fifth Circuit argues that lower federal courts cannot give remedy to full faith and credit violations, as the Full Faith and Credit Clause is "only 'a rule of decision' for state courts." (165) The Full Faith and Credit Clause, however, uses the words "in each state," not "by the Courts of each State," and "[n]owhere in the text of the Full Faith and Credit Clause does the Constitution say that this Clause only 'guides rulings in courts' in its 'orchestration of inter-court comity,' as--out of thin air--the en banc majority claims." (166) The Fifth Circuit also states that the suit was improperly brought against a non-judicial state actor. (167) Once again this logic falls flat, as the Fifth Circuit relies on a case, Thompson v, Thompson, (168) which was a suit between two private parties, not a private party against a state actor. (169) Accordingly,
   Thompson does not control the instant case. The reason there was no
   remedy to enforce the FF&C Clause in Thompson is that there is no
   implied cause of action for violations of the FF&C Clause by
   private parties. Here, however, when Appellees are suing a state
   actor, they have no need for an implied cause of action: Section
   1983 expressly provides them with the only remedy they seek and the
   only one they need. (170)


In fact, it seems that the Fifth Circuit is twisting the enforcement provision of the Full Faith and Credit Clause to justify a "public policy exception" to a valid out-of-state judgment. The Finstuen court, "[c]omplying with long-standing precedent, ... held that adoptions are judgments; as such, the Full Faith and Credit Clause requires recognition of adoption decrees nationwide." (171) The Fifth Circuit did not disagree, and, in fact, conceded that the Louisiana registrar had not refused to recognize Infant J's valid adoption. (172) The Fifth Circuit, however, then turned the issue around to hold that the adoption of children by same-sex couples is against the public policy of Louisiana, so the Registrar did not have to enforce the adoption by reissuing a birth certificate in accordance with Louisiana's own laws. While the Fifth Circuit skirts the issue, it is clear that denying only a particular subset of adoptive parents is not evenhanded enforcement of Louisiana's birth certificate law. As questioned by Judge Wiener in the dissent of Adar v. Smith, what else could the refusal of a new birth certificate mean if not that the out-of-state adoption is not being recognized? (173)

The Fifth Circuit concedes that adoptions are valid judgments entitled to full faith and credit. Prior case law has made exceptionally clear that there is "no roving 'public policy exception' to the full faith and credit due judgments." (174) Indeed,
   [a]lthough a forum court largely is free to ignore sister-state
   law, once a sister state has rendered a judgment (often based on
   its own law), the Full Faith and Credit Clause--together with the
   implementing statute--generally requires the courts of every other
   state to honor that judgment, no matter how much the judgment
   intrudes on the forum state's sovereign interests.... [E]ven when a
   sister state has rendered a judgment based on legal principles
   inconsistent with those applicable in the forum state, [it is
   established] that the full faith and credit obligation requires the
   forum state to enforce the judgment. (175)


Therefore, it should be abundantly clear that all valid, out-of-state adoptions, no matter the sexual orientation of the adoptive parents, should be entitled to full faith and credit in every state of the nation. (176) This protection extends to the rights that flow to "adoptive parents" through the evenhanded control of the forum state's law.

When other federal circuits address whether states must reissue an adopted child's birth certificate with both same-sex parents' names, those circuits should follow the Tenth Circuit's logic and provide the legal parents of the child the same birth certificate available to a heterosexual couple. Full faith and credit needs to be given to any valid out-of-state judgment, "despite the resulting intrusion on state sovereign interests. (177) There can be no "public policy exception" for judgments, and the Fifth Circuit's attempt to categorize reissuing a birth certificate as "enforcement" of another state's valid judgment is flimsy at best. Although Adar v. Smith was denied certiorari, this will not be the end of this type of litigation. Once this issue comes up in more than two circuits, the Supreme Court will take more notice and provide a final ruling. When this day comes, it is crucial that the Supreme Court give credence to current full faith and credit jurisprudence, which indicates that "a judgment conclusive in one state is conclusive in all, regardless of the intrusion on state sovereignty." (178) Additionally, the Supreme Court must remind states that "enforcing" valid out-of-state judgments requires an "evenhanded control of forum law." (179)

The reason a judicial solution might not be ideal, however, is that states that disagree with this ruling may try to respond by changing their laws to exclude same-sex couples. (180) The Tenth Circuit struck down a statute that refused to "recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction," (181) but this does not necessarily stop other jurisdictions from attempting to amend statutes to refuse the reissuance of birth certificates to children adopted by a person or couple that would be denied an adoption in that particular state. For example, a state that does not allow same-sex marriage and only allows married couples to adopt could amend their supplemental birth certificate statute to only include married parents on the amended birth certificate. While it is beyond the scope of this Note to examine the Equal Protection violations that might arise in statutes that deny rights to certain groups of people, the Tenth Circuit makes clear that many of these amendments would not pass Constitutional muster. The litigation stemming from a plethora of states changing their laws, however, could set up an entire generation of adoptive children for a life of instability and fear. The protection of adopted children is paramount, and the first step in securing these children's futures lies with the Federal Circuits following the Tenth Circuit's logic. A judicial resolution, however, can only go so far until the Supreme Court gives a final ruling on the full faith and credit due valid adoptions by same-sex couples beyond the reissuance of birth certificates. Because of potential hang-ups with a judicial resolution, developing a solution that will better protect families immediately is of utmost importance. The only thing that will guarantee the rights of same-sex adoptive parents is legislation that ensures the same rights to all adoptive parents across the country.

B. Legislative Solution: Congress Should Pass a "Protection of Adopted Children Act"

Because of the problems and timing issues associated with a judicial solution, it is crucial that Congress pass legislation to protect children legally and validly adopted by same-sex couples. There needs to be a vehicle of overarching protection for these children so that their relationship with their parents is recognized throughout the entire United States.

As seen with the PKPA and through the power vested in Congress through the Effects Clause, it is clear that Congress can override state sovereignty in domestic relations issues when it involves a matter of federal importance. These issues must "do major damage to clear and substantial federal interests," (182) and the issue of providing full faith and credit to adoptions by same-sex couples does so in two ways. First, the denial of full faith and credit to valid adoptions undermines the entire purpose of the Full Faith and Credit Clause, which is to insure that valid out-of-state judgments are recognized in sister states, without public policy exceptions. Second, denying full faith and credit in this particular area undermines the substantial federal interest of protecting the adopted children's best interests.

As discussed in Part I, the Full Faith and Credit Clause was added to the United States Constitution to help unify the several states, and the Supreme Court has used this "national interest in uniformity" to justify overriding state sovereignty when there are conflicts in judgments. (183) In fact,
   the Court ... emphasized that the purpose of the Full Faith and
   Credit Clause--to make the several states "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
   origin"--required the court to subordinate "local policy." (184)


It is an important federal interest, then, to make sure that the valid judgments of sister states are recognized, despite local policy. Although courts have become relaxed in upholding the statutory laws of sister states, the current case law makes it clear that "states have a virtually ironclad obligation to give effect to judgments from sister states." (185) The reasoning of the Fifth Circuit in Adar v. Smith, which plays fast and loose with the idea of enforcement and recognition of judgments, puts this obligation in jeopardy. It is of substantial federal interest that the judgments of each of the states are protected throughout the country, so this seems a clear case where Congress would be able to step in with a legislative solution.

Additionally, adoption decrees are usually given full faith and credit across the United States without question. While some scholars may argue that adoptions are not truly judgments because they are often uncontested, the general rule of the courts is that adoptions are seen as judgments in the context of full faith and credit. (186) Traditionally, the only adoptions that would not be recognized were those that were obtained without jurisdiction or through fraud. (187) Same-sex couples, however, are currently encountering a unique problem when it comes to assuring their parental rights throughout the country.

Unfortunately, there has been varying opinion as to the suitability of same-sex couples to adopt children. At this point in time, however, there are "few respectable scholars [who] oppose such parenting." (188) Those who do oppose adoption by same-sex couples are clinging to the view that homosexuality is either a mental illness or a sin. (189) As the former argument has been debunked by the America Psychological Association (190) and the latter has no place in the secular laws of our society, neither should hold any weight when examining the parenting skills of same-sex parents. In fact, the general consensus is that there is "no notable difference between children reared by heterosexual parents and those reared by lesbian and gay parents, and that ... lesbigay parents [are] as competent and effective as heterosexual parents." (191) A 2001 study found that there are no differences between same-sex and heterosexual parents when it comes to "parenting styles, emotional adjustment, and sexual orientation of the children." (192) If there are no legitimate concerns as to the parenting abilities of same-sex couples in general, the best interest of the child should determine whether or not a couple is suitable to adopt.

A legislative solution to assuring equal rights to same-sex parents would not be the first time that the federal government has stepped in to qualify the factors that can be considered when examining who can adopt children. The federal government, through the passage of the Multi-Ethnic Placement Act (MEPA), made it clear that race should not be a factor when considering the suitability of potential adoptive parents. (193) Just as studies suggest that "children raised in homes wherein the parents are of different races do not suffer from this circumstance," (194) children raised in homes with two same-sex parents do not suffer from this arrangement. (195) Currently in adoption proceedings, "[i]n all jurisdictions the welfare and best interests of the child are paramount." (196) Allowing states to deny full faith and credit to a valid adoption by a same-sex couple "subordinates the child's best interest" (197) in the same way that using race as a determinative factor in adoption proceedings does not serve the best interest of the child. (198) As "the consistent purpose of serving children's best interests [is] by providing them with two responsible parents, rather than one," (199) the best interests standard clearly requires that both adoptive parents are recognized as legal parents throughout the entire United States. (200)

Furthermore, even if it was argued that adoption is not included in the realm of judgments for the purposes of the Full Faith and Credit Clause, (201) the "best interest of the child" standard should certainly trump the forum state's discomfort with same-sex adoption. A law like DOMA denies full faith and credit to valid same-sex marriages, which in turn punishes the couple for participating in a lifestyle that another state may deem "immoral." While this Note, and currently, the Executive Branch, (202) do not support DOMA, at least a state can defend a "public policy exception" that punishes two consenting adults. When determining whether to give full faith and credit to valid, out-of-state adoptions, it is important to note that the forum state is not the entity permitting the adoption to go through. A "public policy exception" to an adoption that has already occurred virtually strips children of their established adoptive parents. The "best interests of the child, both economic and psychological," (203) require that adoptive children achieve stability and finality. As "all jurisdictions" must consider the best interest of the child, all states and federal circuits must consider the best interests of the child when denying parental rights to their adoptive parents. Two consenting adults made the decision to adopt the child, but denying those parents their rights, whether it be through amending a birth certificate or allowing them to make medical decisions, harms the child just as much, if not more than the adults. (204) If a family cannot travel across the country and be confident that its rights remain the same, the child or children involved may be in a constant state of confusion about their parents' status. Additionally,
   [w]ithout the option to literally remove the child, courts are
   likely to concede that the parents should therefore at least be
   granted rights over the child. If the child has been raised for
   multiple years by same-sex parents, it cannot be better to suddenly
   deny those parents the right to sign a permission slip for the
   child or to make medical decisions on the child's behalf. In
   addition, the psychological damage that the child would suffer from
   being separated from its parents alone would weigh against
   upholding any amended statutes. (205)


Causing children to live in this state of fear and putting them at risk for psychological damage cannot possibly be in their "best interest."

Therefore, this Note suggests that Congress pass legislation that protects the substantial federal interests of preserving the unification of the several states through the Full Faith and Credit Clause and protecting the best interests of adopted children by creating assurance that adoptions are given full faith and credit throughout the nation, regardless of the sexual orientation of the adoptive parents. If the country is not yet ready for legislation that requires all states to ignore the sexual orientation of potential adoptive parents, (206) it at least needs to consider the best interests of the children who have already been adopted. Louisiana may not agree with New York's decision to allow Mr. Adar and Mr. Smith to adopt Infant J, but Louisiana should not put Infant J in jeopardy because of this difference in opinion.

Much like PKPA, which was passed to assure full faith and credit to custody judgments to protect children from parental kidnapping, (207) Congress should pass a Protection of Adopted Children Act (PACA) that requires states to give full faith and credit to all valid adoptions throughout the nation, despite the fact that certain adoptions might not be able to occur in the forum state. PACA should require that full faith and credit is due to all valid adoptions and the rights that extend to adoptive parents in one state should extend to all adoptive parents, no matter the sexual orientation of the parents. This approach would preserve the full faith and credit due all valid judgments that has become "entrenched in full faith and credit jurisprudence." (208) Although passing such a law may infringe on the forum state's sovereignty over domestic relations, the Effects Clause allows for this infringement if it serves an important federal purpose. In this case, the purpose of the Full Faith and Credit Clause to ensure that valid out-of-state judgments are given credence in sister states would be protected. (209) Additionally, the best interests of the children involved would be met by assuring their status with both of their adoptive parents is secure throughout the United States. This Act would not give same-sex parents special rights--if a state does not require its Registrar to issue a new birth certificate to any adoptive parents, PACA would not require the Registrar to do so for same-sex parents. What PACA would do, however, is extend the rights given to adoptive parents in every state to all adoptive parents, no matter their sexual orientation. This approach would avoid the problem of rewording statutes that might arise with a judicial solution. A legislative solution would put same-sex parents on equal ground with their heterosexual counterparts.

CONCLUSION

The Tenth Circuit and the Fifth Circuit are currently at odds as to whether reissuing a birth certificate for an adopted child with the names of both same-sex partners listed as parents falls under recognition or enforcement of a valid state judgment in terms of the Full Faith and Credit Clause. (210) While birth certificates are not supposed to convey parental rights, the cases have made clear that having a parent's name on a child's birth certificate could mean the difference between the parent visiting that child in the hospital or having to remain in the waiting room. (211) It is crucial that this conflict be resolved, especially for the 65,000 adopted children being raised by same-sex couples in America today. (212)

While a judicial solution is a good first step in ensuring full faith and credit for adoptions by same-sex couples across the entire United States, it will not go far enough unless the Supreme Court rules on full faith and credit for valid adoptions by same-sex couples beyond the reissuance of a birth certificate. Therefore, it is crucial that federal legislation be passed to protect the best interests of the children and the rights of same-sex parents in these situations. All federal circuits should follow the Tenth Circuit in providing equal access to the rights given to adoptive parents, so that all valid adoptions are treated the same way across the country. The Full Faith and Credit Clause guarantees that all judicial decrees are recognized by sister states, (213) so there should be no question that valid out-of-state adoptions should be afforded this Constitutional protection. Whatever laws the separate states have regarding "adoptive parents" in their jurisdictions should be applied "evenhandedly" to all adoptive parents, whether heterosexual or same-sex.

Only a legislative solution, however, will go far enough in preserving the Full Faith and Credit Clause and protecting the best interests of adopted children. A judicial solution is flawed because some states may try to change the wording of state statutes to exclude same-sex parents, which would mean that following the "evenhanded" enforcement rules of the Full Faith and Credit Clause would not be sufficient. Although it is unclear whether or not these amended rules would pass Equal Protection muster, it would take years for courts to examine the statutes and make that decision. Thus, an entire generation of children may be subject to instability and fear of losing the only parents they have ever known. This solution is unacceptable, especially under a "best interests of the child" standard. There should be no "public policy exception" to a valid out-of-state adoption, but even under a public policy lens, the most important issue should be the best interest of the child. In a world where all legitimate research points to the fact that same-sex couples are just as capable as different sex couples in raising children, (214) keeping innocent adopted children protected by ensuring their parents' status has to be more important than punishing a lifestyle that one state may question as morally wrong. Therefore, this Note urges Congress to pass a "Protection of Adopted Children Act," which would guarantee same-sex adoptive parents the same rights as any other adoptive parents in the United States.

* LESLEA NEWMAN, HEATHER HAS TWO MOMMIES (Alyson Publ'ns 2000) (1989).

(1.) Finstuen v. Crutcher, 496 F.3d 1139, 1142 (10th Cir. 2007).

(2.) Id.

(3.) See id.

(4.) See In re Adoption of Sebastian, 879 N.Y.S.2d 677,685 (N.Y. Sur. Ct. 2009).

(5.) Finstuen, 496 F.3d at 1147.

(6.) Id. at 1156.

(7.) See Adar v. Smith, 639 F.3d 146, 161 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011).

(8.) See id. at 161 & n.9.

(9.) Id. at 159.

(10.) See Gay Couple Fights for Names on Child's Birth Certificate, USA TODAY (Nov. 8, 2011), http://www.usatoday.com/news/nation/story/ 2011-11-08/same.sex-couple-birth-certificate/51122394/1 ("Legal rights afforded to kids with two parents provide basic security and vital protections.... A birth certificate is necessary to travel, to determine child support and to obtain government benefits.").

(11.) See, e.g., Mallie Jane Kim, Both Sides See Same-Sex Marriage as Winning Issue in 2012, U.S. NEWS & WORLD REP. (July 27, 2011), http://www.usnews.com/news/ articles/2011/07/27/both-sides-see-same-sex-marriage -as-winning-issue-in-2012 ("'Clearly the overriding issue in the next election is going to be the economy and jobs,' says Brian Darling, a senior fellow for government studies at the conservative Heritage Foundation. But when votes get close, he says, 'issues like traditional marriages can make a critical difference in an election and may be a deciding factor.'"); William Selway & Henry Goldman, Same-Sex Marriage Push Wins Support of Mayors from New York to Los Angeles, BLOOMBERG (Jan. 20, 2012) http://www. bloomberg.com/news/2012-01-20/same-sex-marriage-push-wins -support-of-mayorsfrom-new-york-to-los-angeles.html ("Mayors of about 80 U.S. cities from New York to Los Angeles to Houston are backing a campaign to remove legal barriers to same-sex marriage nationwide.... Legislators in Washington, New Jersey and Maryland are pushing measures to permit the practice, while voters in North Carolina and Minnesota will face ballot questions this year on banning it.").

(12.) See Adam Nagourney, Court Strikes down Ban on Gay Marriage in California, N.Y. TIMES (Feb. 7, 2012), http://www.nytimes.com/2012/02/08/ us/marriage-banviolates-constitution-court- rules.html?_r=l&hp ("'All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation 'marriage," [Judge Stephen R. Reinhardt] wrote, adding, 'Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.'"); see also Washington State Lawmakers Pass Gay Marriage Bill, CBSNEWS.COM (Feb. 10, 2012), http://www.cbsnews.com/8301-501363_162-57375293 /washington-state-lawmakers-pass-gay-marriage-bill.

(13.) Gary J. Gates & Abigail M. Cooke, United States Census Snapshot." 2010, WILLIAMS INST. 3 (Sept. 2011), http://williamsinstitute.law.ucla.edu/wp-content/up loads/census2010Snapshot-US-v2.pdf.

(14.) Taylor Gandossy, Gay Adoption: A New Take on the American Family, CNN.COM (June 25, 2007), http://articles.cnn.com/2007-06-25/ us/gay.adoption_1_gayadoption-straight-parents-williams- institute?_s=PM:US-

(15.) U.S. CONST. art. IV, [section] 1

(16.) Although this circuit split only includes two circuits, this issue is currently cropping up elsewhere. A lesbian couple is currently petitioning to get both of their names on their child's birth certificate in Iowa, which is in the Eighth Circuit. See Gay Couple Fights for Names on Child's Birth Certificate, supra note 10.

(17.) See N. Assurance Co. of London v. Grand View Bldg. Ass'n, 203 U.S. 106, 106 (1906) ("The question before us at the present time is whether the supreme court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that it was no bar to the relief now sought.").

(18.) See United Farm Workers of Am., AFL-CIO v. Ariz. Agric. Emp't Relations Bd., 669 F.2d 1249, 1249 (9th Cir. 1982) ("The full faith and credit clause neither required the Arizona Board to abide by the California Agricultural Labor Relations Board's certification decision, in which the union was certified as the exclusive bar gaining representative for lettuce grower's agricultural employees in California, nor required Arizona to apply California law and prevent the representation election in Arizona for agricultural employees of the grower in Arizona.").

(19.) See Gouveia v. Tazbir, 37 F.3d 295, 300 (7th Cir. 1994) ("The bankruptcy court must afford full faith and credit to a valid state court judgment to the same extent as the rendering state.").

(20.) See Harrah's Club v. Van Blitter, 902 F.2d 774, 777 (9th Cir. 1990) ("It has long been established that a final judgment rendered under the laws of one state must be enforced by a sister state under the Full Faith and Credit Clause, even though the underlying action may be against the public policy of the state in which enforcement is sought.").

(21.) See Ake v. Gen. Motors Corp., 942 F. Supp. 869, 880 (W.D.N.Y. 1996) ("Resolution of this matter turns on whether this Court will give full faith and credit to the Michigan injunction.").

(22.) See, e.g., Locomotive Eng'rs Mut. Life & Accident Ins. Ass'n v. Laurent, 172 F.2d 889, 893 (7th Cir. 1949) ("Inasmuch, then, as under the Arkansas statute and the decisions of the Supreme Court of that state, the existence of the Illinois separate maintenance decree, as to which the Arkansas court was advised during the divorce hearing, was no bar to divorce but was, indeed, a recognized statutory ground therefor, if the fact of domicile was established ... full faith and credit must be given to the decree.").

(23.) See. e.g., Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), cert, denied, 132 S. Ct. 400 (2011); Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).

(24.) U.S. CONST. art. IV, [section] 1.

(25.) 28 U.S.C. [section] 1738 (2006).

(26.) U.S. CONST. art. IV, [section] 1.

(27.) Sherrer v. Sherrer, 334 U.S. 343,355 (1948).

(28.) Recent Cases, Constitutional Law--Full Faith and Credit Clause--Tenth Circuit Invalidates Oklahoma Statute Barring Recognition of Out-of-State Adoptions by Same-Sex Couples--Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), 121 HARV. L. REV. 660, 660 (2007) [hereinafter Constitutional Law].

(29.) Adar v. Smith, 639 F.3d 146, 152 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011).

(30.) Id at 153 (citing Durfee v. Duke, 375 U.S. 106, 109 (1963) ("[T]he full faith and credit clause brought to the Union a useful means of ending litigation by making 'the local doctrines of res judicata ... a part of national jurisprudence.'")).

(31.) Stewart E. Sterk, The Muddy Boundaries Between Res Judicata and Full Faith and Credit, 58 WASH. & LEE. L. REV. 47, 49 (2001).

(32.) Id. at 54.

(33.) U.S. CONST. amend. X.

(34.) Finstuen v. Crutcher, 496 F.3d 1139, 1152 (10th Cir. 2007).

(35.) Adar, 639 F.3d at 153 ("The clause thus became the 'vehicle for exporting local res judicata policy to other tribunals.'" (quoting 18B Charles Alan Wright et al., Federal Practice & Procedure [section] 4467 (2d ed.))).

(36.) Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 233 (1998).

(37.) BLACK'S LAW DICTIONARY 1117 (9th ed. 2010) ("An affirmative defense barring the same parties from litigating a second lawsuit on the same claim....").

(38.) 522 U.S. at 232 (quoting Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 501 (1939)).

(39.) Id. at 233 ("A court may be guided by the forum State's 'public policy' in determining the law applicable to a controversy."); see also Mark Strasser, Interstate Recognition of Adoptions: On Jurisdiction, Full Faith and Credit. and the Kinds of Challenges the Future May Bring, 2008 B.Y.U.L. REV. 1809, 1813-14 ("A state need not ignore its own public policy determination and defer to the laws of another state, even when those laws contradict the public policy of the enforcing state.").

(40.) 1 U.S.C. [section] 7 (2006).

(41.) Defense of Marriage Act, 28 U.S.C. [section] 1738C (2006).

(42.) See Krista Stone-Manista, Parents in Illinois are Parents in Oklahoma, Too: An Argument for Mandatory Interstate Recognition of Same-Sex Adoptions, 19 LAW & SEXUALITY 137, 147 (2010) ("DOMA allows states to decline to recognize any 'right or claim arising from' same-sex marriages or relationships."); see also Spencer B. Ross, Finstuen v. Crutcher: The Tenth Circuit Delivers a Significant Victory for Same-Sex Parents with Adopted Children, 85 DENY. U. L. REV. 685, 689 (2008) ("Congress passed DOMA using powers under the 'Effects Clause' of the Full Faith and Credit Clause, allowing states to deny full faith and credit to other state's decision granting same-sex marriages.").

(43.) Baker, 522 U.S. at 233.

(44.) 296 U.S. 268, 277 (1935) ("In numerous cases th[e] [Supreme] [C]ourt has held that credit must be given to the judgment of another state, although the forum would not be required to entertain the suit on which the judgment was founded; that considerations of policy of the forum which would defeat a suit upon the original cause of action are not involved in a suit upon the judgment and are insufficient to defeat it."); see also Strasser, supra note 39, at 1814 ("[T]he state must yield to a judgment of another state court if the latter court had jurisdiction to issue that judgment.").

(45.) Baker, 522 U.S. at 234 (quoting Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438 (1943)).

(46.) Mark D. Rosen, Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors that Determine What the Constitution Requires, 90 MINN. L. REV. 915, 933 (2006).

(47.) Baker, 522 U.S. at 235.

(48.) 237 U.S. 611 (1915).

(49.) ld. at 615.

(50.) Id

(51.) Adar v. Smith, 639 F.3d 146, 177 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011) (Wiener, J., dissenting).

(52.) Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1496 (2007).

(53.) Id. at 1497.

(54.) See Keith Stover, Restoring the Tenth Amendment." A Call to Overrule United States v. Darby and Reinstate National League of Cities v. Usery, 25 T.M. COOLEY L. REV. 555, 556 (2008) ("The most relevant part of the Constitution granting power to the Federal Government is an enumerated list of subjects on which Congress may legislate. Regarding these enumerated powers, Congress's authority is plenary, and any law passed accordingly is supreme over the laws of the states. The Tenth Amendment, therefore, reserves all authority not enumerated to the state or the people. This means that only the states may legislate on subjects not mentioned elsewhere in the Constitution as belonging to the Federal Government."). But see David T. Woods, A Step Toward Stability in Modern Tenth Amendment Jurisprudence: The Supreme Court Adopts a Workable Standard in Printz v. United States, 42 ST. LOUIS U. L.J. 1417, 1419 ("It is well established that our Constitution creates two distinct spheres of governmental control: the federal government and the individual state governments....Although a plain reading of [the Tenth Amendment] suggests that the states are meant to have a zone of autonomy that cannot be encroached, a further inquiry suggests that the permissive zones of autonomy are much less distinct.").

(55.) Parental Kidnapping Prevention Act of 1980, Pub. L. 96-611, 94 Stat. 3566 (1980).

(56.) Rena M. Lindevaldsen, Same-Sex Relationships and the Full Faith and Credit Clause: Reducing America to the Lowest Common Denominator, 16 WM. & MARY J. WOMEN & L. 29, 45 (2009).

(57.) Id. at 29.

(58.) Sterk, supra note 31, at 82 (quoting 28 U.S.C. [section] 1738A(a) (1995)).

(59.) Lindevaldsen, supra note 56, at 45.

(60.) Id. at 62 ("[B]efore a state law governing domestic relations will be overridden, it 'must do major damage to clear and substantial federal interests.'").

(61.) U.S. CONST. art. IV, [section] 1.

(62.) 15A C.J.S. ConllictofLaws[section] 57 (2011).

(63.) Id. ("If under the law of the place having jurisdiction there has been a valid adoption, the status arising from that adoption will be recognized elsewhere, provided the status is not contrary to positive law and public policy of the place where its recognition is sought.").

(64.) 2 C.J.S. Adoption of Persons[section] 139 (2011) (emphasis added).

(65.) Id.

(66.) Constitutional Law, supra note 28, at 661 ("[A]doption decree[s] require[] the sanction of a judicial officer and [are] therefore ... judgment[s]."); see also Adar v. Smith, 639 F.3d 146, 159 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011) ("The Registrar concedes that the parental relationship of Adar and Smith with Infant J cannot be revisited in its courts. That question is not an issue.").

(67.) See Anti-Adoption Laws in the U.S., NAT'L GAY & LESBIAN TASK FORCE (Apr. 21, 2011), http://www.thetaskforce.org/downloads/reports/issue_maps/ adoption_laws 04 11 color.pdf.

(68.) Gates & Cooke, supra note 13, at 1.

(69.) Gandossy, supra note 14.

(70.) Ross, supra note 42, at 685.

(71.) This is not the first time a conflict over who should be able to adopt has arisen in the U.S. Prior to 1994, agencies were allowed to consider the race of both the child and prospective adoptive parents before allowing an adoption to take place. In 1994, however, the federal Multiethnic Placement Act (MEPA) was passed, which "prohibits discrimination on the basis of race, color, or national origin in foster care licensing and foster care and adoptive placements." 2 ANN M. HARALAMBIE, HANDLING CHILD CUSTODY, ABUSE AND ADOPTION CASES [section] 14:19 (2011). Additionally, [t]he MEPA prohibits any agency that receives federal funds from denying to any individual the opportunity to become an adoptive or foster parent based on the race, color, or national origin of the individual or child involved, and from denying or delaying the placement of a child for adoption into foster care on the basis of the race, color, or national origin of the child or the adoptive or foster parent. Shani King, The Family Law Canon in A (Post?) Racial Era, 72 OHIO ST. L.J. 575, 586 (2011).

(72.) Anti-Adoption Laws in the U.S., supra note 67. Under the Florida state equal protection clause, an intermediate state appellate court declared this statute unconstitutional in 2010. Fla. Dep't of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App. 2010). The state did not appeal the decision. See Ruthann Robson, Florida Will Not Appeal Unconstitutionality of "Homosexual Adoption" Ban, CONST. L. PROF BLOG (Oct. 13, 2010), http://lawprofessors.typepad.com/conlaw/ 2010/10/florida-will-not -appeal-unconstitutionality-of -homosexual-adoptionban.html.

(73.) These laws, much like current laws surrounding the right to marry, are always subject to change. In January 2012, April DeBoer and Jayne Rowse filed a civil rights lawsuit in Michigan to protect their three adopted children. The lawsuit claims that
   Michigan's Adoption Code violates the right to equal protection
   under the U.S. Constitution. According to the Detroit Free Press,
   the suit says children who have unmarried second parents are denied
   a wide range of benefits available to children of married couples.
   Since Rowse and DeBoer are not both legal parents to all of their
   children, only one of them can make legal and medical decisions for
   each child. If one partner dies, the other has no legal claim to
   the children she did not legally adopt.


Kate Abbey-Lambertz, April DeBoer, Jayne Rowse Challenge Michigan Same-Sex Partner Adoption Ban, HUFFINGTON POST (Jan. 23, 2012, 3:01 PM), http://www.huf fingtonpost.com/2012/01/23/april-deboer-jayne-rowse-same -sex-adoptionban_n_1223917.html.

(74.) Anti-Adoption Laws in the U.S., supra note 67.

(75.) Id

(76.) Ross, supra note 42, at 688.

(77.) See, e.g., Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011).

(78.) Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV. 159, 161 (2001).

(79.) Ross, supra note 42, at 687. Because of DOMA, however, parental rights are not guaranteed across the country for legally married couples. It is highly suggested that non-biological parents adopt their partner's child "if they plan to travel because at least 30 states have adopted laws similar to a federal rule that defines marriage as between a man and a woman." Gay Couple Fights for Names on Child's Birth Certificate, supra note 10.

(80.) Stone-Manista, supra note 42, at 140.

(81.) Ross, supra note 42, at 687.

(82.) Stone-Manista, supra note 42, at 140.

(83.) Stacey & Biblarz, supra note 78, at 160.

(84.) 15A C.J.S. Conflict of Laws, supra note 62, [section] 57.

(85.) 2 C.J.S. Adoption of Persons, supra note 64, [section] 139.

(86.) See Finstuen v. Crutcher, 496 F.3d 1139, 1156 (10th Cir. 2007).

(87.) See Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011).

(88.) See Gay Couple Fights for Names on Child's Birth Certificate, supra note 10.

(89.) 496 F.3d 1139.

(90.) Finstuen, 496 F.3d at 1142 (quoting OKLA. STAT. tit. 10, [section] 7502-1.4(A) (Supp. 2007) (the "adoption amendment")).

(91.) Id.

(92.) Id

(93.) Id. at 1142-44. To have standing in a case, the plaintiff must establish three elements: (1) the plaintiff must have suffered an "injury-in-fact"; (2) there must be a causal connection between the injury and the conduct at issue; and (3) it must be likely that the injury would be redressed by a favorable decision in court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

(94.) Finstuen, 496 F.3d at 1142.

(95.) Id. at 1144.

(96.) Id. at 1144-45.

(97.) Id at 1145.

(98.) Id at 1146-47.

(99.) Id. at 1142.

(100.) Id.

(101.) Id. at 1145-47.

(102.) Id. at 1151.

(103.) Id. at 1156 ("Therefore, Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples. Because we affirm the district court on this basis, we do not reach the issues of whether the adoption amendment infringes of the Due Process or Equal Protection Clauses.').

(104.) Id. at 1153-54 (quoting Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 234-35 (1998)).

(105.) Id. at 1154 ("If Oklahoma had no statute providing for the issuance of supplementary birth certificates for adopted children, the Doels could not invoke the Full Faith and Credit Clause in asking Oklahoma for a new birth certificate. However, Oklahoma has such a statute--i.e., it already has the necessary 'mechanism [] for enforcing [adoption] judgments.' The Doels merely ask Oklahoma to apply its own law to 'enforce' their adoption order in an 'even-handed' manner.").

(106.) OKLA. STAT. ANN. tit. 10, [section] 7505-6.6(B) (West 2012).

(107.) Finstuen, 496 F.3d at 1154. ("Whatever rights may be afforded to the Doels based on their status as parent and child, those rights flow from an application of Oklahoma law, not California law.").

(108.) Id at 1155. ("The Doels do not seek to enforce their adoption order against Dr. Crutcher ... as a matter of claim or issue preclusion. Instead, the Doels assert in their Oklahoma suit that Dr. Crutcher and OSDH are obligated under Oklahoma law to issue a supplemental birth certificate and that they have failed to fulfill the constitutionally-imposed duty on states to recognize another state's judgment.").

(109.) Id. at 1152.

(110.) Id.

(111.) Id. at 1154 ("A California court made the decision, in its own state and under its own laws, as to whether Jennifer Doel could adopt child E. That decision is final.").

(112.) Id. at 1156.

(113.) Id. at 1153.

(114.) Id. (quoting Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 232-33 (1998)).

(115.) Id. at 1157 (Hartz, J., dissenting).

(116.) Id.

(117.) Id.

(118.) Id. at 1156.

(119.) 639 F.3d 146 (5th Cir. 2011), cert. denied, 132 S. Ct. 400 (2011).

(120.) Id. at 162.

(121.) LA. REV. STAT. ANN. [section] 40:76(C)(3) (2001).

(122.) LA. CONST. art. XII, [section] 15.

(123.) LA. CHILD. CODE ANN. art. 1221 (2004).

(124.) Adar, 639 F.3d at 149.

(125.) Id.

(126.) Id. at 149-50.

(127.) Id. at 150.

(128.) Id.

(129.) Id.

(130.) Id.

(131.) Id. at 160 (quoting Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 235 (1998)).

(132.) Id. at 157 ("Louisiana law, unlike Oklahoma law, does not require issuing birth certificates to two unmarried individuals. The 'enforcement measure'--issuance of a revised birth certificate--is thus critically different in the two states.").

(133.) Id. at 153.

(134.) Id.

(135.) Id. at 154.

(136.) Id. at 155 ("The court held that the sheriff could not have violated the full faith and credit clause because its function was 'to avoid relitigation of the same issue in courts of another state.' The clause did not 'require a Texas sheriff to obey California law.'" (quoting White v. Thomas, 660 F.2d 680, 685 (5th Cir. 1981))).

(137.) See id. ("The court reasoned that because the 'primary operational effect of the Clause's application' was 'for claim and issue preclusion (res judicata purposes,)' the clause did not oblige executive officials to execute the judgment in the manner prescribed by the out-of-state judgment itself." (quoting Baker ex re1. Thomas v. Gen. Motors Corp., 522 U.S. 222, 233 (1998))); Rosin v. Monken, 599 F.3d. 574, 576 (7th Cir. 2010).

(138.) Adar, 639 F.3d at 154.

(139.) Id. at 158.

(140.) Id. at 159.

(141.) Id. at 160.

(142.) 237 U.S. 611, 615 (1915).

(143.) Adar, 639 F.3d at 160.

(144.) Id. ("[O]btaining a birth certificate falls in the heartland of enforcement, and therefore outside the full faith and credit obligation of recognition.").

(145.) Adar, 639 F.3d at 165 (Wiener, J., dissenting).

(146.) Id. at 169 (Wiener, J., dissenting) ("Nowhere in the test of the FF&C Clause does the Constitution say that this Clause only 'guides rulings in courts' in its 'orchestration of inter-court comity....'").

(147.) Id. at 165 (Wiener, J., dissenting) ("[T]he en banc majority reads a holding into Supreme Court precedent that simply is not there: To date, the Court has not addressed one single FF&C Clause claim brought by a private party against a state actor under [section] 1983.").

(148.) Id. at 179 (Wiener, J., dissenting) ("I repeat, Louisiana is declining to recognize the New York decree for purposes of its own law!").

(149.) Id. at 179-80 (Wiener, J., dissenting).

(150.) Id. at 177 (Wiener, J., dissenting).

(151.) Adar v. Smith, 132 S. Ct. 400 (2011).

(152.) Adar, 639 F.3d at 182 (Wiener, J., dissenting).

(153.) Finstuen v. Crutcher, 496 F.3d 1139, 1154 (10th Cir. 2007) (quoting Baker ex tel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 235 (1998)).

(154.) Adar, 639 F.3d at 161 ("[T]he full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. Forum state law governs the incidental benefits of a foreign judgment. In this case, Louisiana does not permit any unmarried couples--whether adopting out-of-state or in-state--to obtain revised birth certificates with both parents' names on them. Since no such right is conferred by either the full faith and credit clause or Louisiana law, the Registrar's refusal to place two names on the certificate can in no way constitute a denial of full faith and credit.") (citations omitted).

(155.) Adar v. Smith, 132 8. Ct. 400 (2011).

(156.) See In re Adoption of Sebastian, 879 N.Y.S.2d 677, 685 (N.Y. Sur. Ct. 2009).

(157.) See Strasser, supra note 39, at 1820 ("Indeed, one could imagine a scenario in which parental permission for a medical procedure was required and the hospital refused to accept either parent's authorization, instead choosing to wait until a court determined which parent's authority would be recognized by the state.").

(158.) 132 S. Ct. 400 (2011).

(159.) Adar, 639 F.3d at 161 ("Since no such right is conferred by either the full faith and credit clause or Louisiana law, the Registrar's refusal to place two names on the certificate can in no way constitute a denial of full faith and credit.").

(160.) Id.

(161.) Baker, 522 U.S. at 235.

(162.) Adar, 649 F.3d at 177. (Wiener, J., dissenting) ("[The Louisiana Registrar] has refused to recognize Appellee's nationwide, lawful status as 'adoptive parents' by denying them the 'adoptive parent' rights created in Louisiana's birth certificate (not adoption) law.... Louisiana's birth certificate statute is surely one that decides which Louisiana-specific rights flow from an out-of-state adoption decree: No one challenges either that statute or Louisiana's prerogative to determine whether 'adoptive parents' are entitled to a revised birth certificate. Yet the Registrar has still failed to meet her obligation to afford full faith and credit to Appellees' out-of-state adoption degree by refusing to recognize it and to issue revised birth certificates to 'adoptive parents' evenhandedly.").

(163.) LA. REV. STAT. ANN. [section] 40:76(C)(3) (2001).

(164.) Adar, 639 F.3d at 178. (Wiener, J., dissenting).

(165.) Id. at 168 (Wiener, J., dissenting).

(166.) Id. at 169 (Wiener, J., dissenting).

(167.) Id. at 154 ("[T]he duty of affording full faith and credit to a judgment falls on courts.").

(168.) 484 U.S. 174 (1988).

(169.) Adar, 639 F.3d at 170 (Wiener, J., dissenting).

(170.) Id. at 171 (Wiener, J., dissenting).

(171.) Ross, supra note 42, at 694-95.

(172.) Adar, 639 F.3d at 159 ("[T]he Registrar has not refused to recognize the validity of the New York adoption decree ... [and] the parental relationship of Adar and Smith with Infant J cannot be revisited in [Louisiana's] courts.").

(173.) Id. at 166 (Wiener, J., dissenting) ("[T]he Registrar un-evenhandedly refuses to issue such a certificate to Appellees for the sole reason that she will not 'accept,' viz., give full faith and credit to, their unquestionably valid out-of-state judgment. What else could this mean but that she refuses to recognize the out-of-state judgment that defines Appellees as 'adoptive parents?'").

(174.) Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 233 (1998).

(175.) Sterk, supra note 31, at 57-58.

(176.) Strasser, supra note 39, at 1814 ("Where there has been a valid, final adoption in one state, sister states will not be permitted to refuse to recognize that judgment.").

(177.) Sterk, supra note 31, at 49.

(178.) Id. at 58.

(179.) Baker, 522 U.S. at 235.

(180.) As an example, a lesbian couple in Iowa is currently having a difficult time getting one of the couple's names on their child's birth certificate because "the state law's wording in regards to parentage is gender specific.... Iowa code states if a woman is married, the husband is the father, absent a court order that says otherwise." See Gay Couple Fights for Names on Child's Birth Certificate, supra note 10. Although the child in this particular case is the biological child of one of the women, it is not difficult to imagine state birth certificate laws being amended to use gendered terms to discriminate against same sex couples.

(181.) OKLA. STAT. tit. 10, [section] 7502-1.4(A) (Supp. 2007).

(182.) Lindevaldsen, supra note 56, at 62 (quoting Rose v. Rose, 481 U.S. 619, 625 (1987)).

(183.) Sterk, supra note 31, at 59.

(184.) Id. at 60.

(185.) Rosen, supra note 46, at 933.

(186.) See, e.g., Finstuen v. Crutcher, 496 F.3d 1139, 1141 (10th Cir. 2007) ("We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation.").

(187.) 2 C.J.S. Adoption of Persons, supra note 64, [section] 139.

(188.) Stacey & Biblarz, supra note 78, at 161.

(189.) Id.

(190.) Id. ("[A] few psychologists subscribe to the view that homosexuality represents either a sin or a mental illness and continue to publish alarmist woks on the putative ill effects of gay parenting.... Even though the American Psychological Association expelled Paul Cameron, and the American Sociological Association denounced him for willfully misrepresenting research.... his publications continue to be cited in amicus briefs, court decisions, and policy hearings.").

(191.) Id. at 160.

(192.) Id. at 167.

(193.) 2 HARALAMBIE, supra note 71.

(194.) In re Davis, 465 A.2d 614, 622 (Pa. 1983).

(195.) Federal legislation has, in fact, been introduced to the House of Representatives that would "ban discrimination in adoption or foster care placement based on the sexual orientation, marital status or gender identity of the potential parent, or the sexual orientation or gender identity of the child." The Bill, entitled the Every Child Deserves a Family Act, has not yet been brought to a vote. Amanda Terkel, LGBT Adoption Bill Introduced to the House, HUFFINGTON POST (May 3, 2011, 8:11 PM), http://www.huffingtonpost.com/2011/05/03/lgbt-adoption -billintroduced_n_857172.html.

(196.) Compos v. McKeithen, 341 F. Supp. 264, 267 (Ed. La. 1972).

(197.) Id.

(198.) Id.

(199.) See In re Adoption of Sebastian, 879 N.Y.S.2d 677, 690 (N.Y. Sur. Ct. 2009).

(200.) Id. at 680.

(201.) Constitutional Law, supra note 28, at 663 ("Astonishingly, the majority [in Finstuen v. Crutcher] offered only a brief footnote as support for the assertion that adoption orders and decrees are judgments, and devoted most of its opinion to how judgments should be treated under the Full Faith and Credit Clause. This interpretation was not as clearly required as the opinion's facade of confident, authoritative language suggested--indeed, scholars disagree over whether adoption decrees should be treated as judgments for purposes of the Full Faith and Credit Clause, or whether they should be subject to the public policy exception.").

(202.) Obama: DOMA Unconstitutional, DOJ Should Stop Defending in Court, HUFFINGTON POST (Feb. 23, 2011, 12:21 PM), http://www.huffingtonpost.com/2011/02 /23/obama-doma-unconstitutional_n_827134.html ("In a major policy reversal, the Obama administration said ... it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage. Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act 'contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships--precisely the kind of stereotype-based thinking and animus the (Constitution's) Equal Protection Clause is designed to guard against.'").

(203.) See Sebastian, 879 N.Y.S.2d at 680.

(204.) See also Ross, supra note 42, at 697 ("Unlike the debate over whether to recognize same-sex marriages and similar unions, this is a debate concerning the rights of a child, and is therefore much more difficult to attack.").

(205.) Id. at 697-98

(206.) Terkel, supra note 195.

(207.) Lindevaldsen, supra note 56, at 29.

(208.) Sterk, supra note 31, at 58.

(209.) See Ross, supra note 42, at 698 ("[I]n an increasingly mobile age, where travel is often a necessity, no policy should favor stripping same-sex parents of all adoptive rights simply because they have to travel through one state to reach their eventual destination. This would create chaos in the legal system from state to state, which is certainly what the authors of the Constitution were trying to prevent when passing the Full Faith and Credit Clause."). 210. See Adar v. Smith, 639 F.3d 146 (5th Cir. 2011), cert. denied, 132 S.Ct. 400 (2011); Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007).

(211.) Finstuen, 496 F.3d at 1147.

(212.) Gandossy, supra note 14.

(213.) Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 233 (1998).

(214.) Stacey & Biblarz, supra note 78, at 167.

Lauren Lombardo, J.D. Candidate, 2013, Fordham University School of Law; M.A., 2008, New York University; B.A., 2005, Bucknell University. I would like to thank my Note advisor, Professor Robin Lenhardt, for guiding me through this process. I would also like to thank Luke Lombardo and Tom Long for their encouragement and edits.
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