A major legal victory yesterday for gay adoptions came down in the case of Finstuen v. Edmondson. The case, brought by the Lambda Legal Fund on behalf of three sets of gay parents with adopted children, challenged an Oklahoma law that forbid the state from recognizing gay adoptions from other states as legal. That law obviously threatens to break up families if they have to relocate to, or even visit, Oklahoma. As Lambda put it in their press release, the law "had the potential to make children adopted by same-sex couples in other states legal orphans when the families are in Oklahoma." The law said:
The courts of this state shall recognize a decree, judgment, or final order creating the relationship of parent and child by adoption, issued by a court or other governmental authority with appropriate jurisdiction in a foreign country or in another state or territory of the United States. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree, judgment, or final order were issued by a court of this state. Except that, this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.
The part in italics is the part that was added in 2004 with the passage of a state referendum. Federal District Judge Robin Cauthron issued a summary judgement overturning that law on Friday. The plaintiffs argued that the law violated the full faith and credit clause of the constitution, the equal protection and due process clauses of the 14th amendment, and the right to travel freely. The judge found for the plaintiffs on the first three but not the last one. So that's three separate grounds for overturning the law. An appeals court would have to overturn all three analyses in order to reverse the decision.
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I've always wondered, wouldn't the full faith and credit clause pertain to gay marriages as well? Which is to say, getting married in one state makes you married in any state. If so, then why the hype to pass state bans that would be constitutionally null anyway?
This is a great victory for gay and lesbian adoptive couples. My hope is that it isn't just a temporary one. The district court's analysis does a good job trying to cover all the bases but is clearly subject to challenge in several areas. I can't really speak to what the 10th Circuit might do; perhaps those with knowledge of the 10th Circuit might comment. I'm also not sure if the Supreme Court would grant cert., since the case may not be clean enough to take on the central issue.
If it does get to the Supreme Court, though, it will be interesting to see what comes of it. In general, I see three possibilities. First, a Ginsberg-type opinion squarely recognizing a fundamental right/equal protection violation. Second, a Scalia-type Michael H. opinion denying any fundamental right and disposing of the case quickly on rational basis grounds. Third, a Kennedy-esque liberty based opinion finding no legitimate interest or rational basis to support the law. I'll be interested to follow this one as it winds its way up through appeal.
Dan-
I was thinking the same thing as I read it, wondering how the higher courts would deal with it. It's a comprehensive opinion that covers all its bases. I think there's a fourth option, though. Like the Newdow case, they may claim lack of standing to avoid a decision entirely.
Is there anything keeping one person in a gay relationship from "re-adopting" a child if the couple moved to Oklahoma? I don't expect gay couples to find that satisfactory, but I think that to say this law would break up families may be a bit of an exaggeration.
I presume the law was intended to keep gay couples from traveling to another state to adopt a child to evade Oklahoma's ban on gay adoption. I support letting states decide gay marriage and adoption issues for themselves, but I certainly don't think children adopted by gays should be taken away from their parents if they move to another state.
Eric,
You say the states should decide these issues for themselves, but don't you think that the federal government should be required the recognize the relationships established at the state level?
Ed --
I won't deny that a Supreme Court determined to void the result without reaching the merits could do so on standing grounds. But it would take some major jurisprudential gymnastics to avoid this case on standing grounds. Effectively, I think the Court would have to reach the merits to deny standing in a Newdow-type way. Injury (both past and prospective), causation, and redressability are all present. In fact, I think the district court erred in dismissing the claims of the first couple on standing grounds. It may be that their claims weren't pled all that well, but I still think that standing analysis was weak.
Eric Seymour wrote:
I don't understand the question. Oklahoma bans gay adoptions, so once a couple moves to that state, they can't "readopt" the child because state law forbids it. Think about the problems this law could create. A gay couple travels to Oklahoma with an adopted child and the child is injured - neither parent, under Oklahoma law, has any parental rights at all. Legally, they are no different than strangers, with no authority to authorize medical care or even to be present at the hospital with their child. The law is extraordinarily cruel.
As I've noted elsewhere, Cauthron is a Bush Sr. appointee. Republicans have a great knack for choosing "activist" judges.
It's nitpicking, but based on the italicized portion of your post, does the Oklahoma law technically ban all 'gay adoptions'? I think what Eric's driving at is that it appears, just based on the excerpt you noted above, that a gay *person* can adopt, but not a gay *couple*.
That doesn't change what Ed said about what happens to the family if the child gets hurt while travelling through Oklahoma and I'm not sure what suggestions exist as a solution to that scenario. It seems to me that to allow states to decide whether they will recognize adoptions by gay couples is entirely impractical.
The section of the law that is quoted only deals with recognition of adoptions from other states. Whether children can be adopted by gays in Oklahoma is a different part of the law.
Thank God (is that ironic? probably) that we're starting to see a few victories on the gay rights front. Patience is paying off...
Dave L - yes, that's what I was driving at.
For the sake of discussion, I'll accept that the Oklahoma law would result in the situation Ed describes for gay adoptive parents traveling through the state. It should be possible to remedy that while preserving the intent of the law. For instance, perhaps the law could stipulate that it applies only to Oklahoma residents and that residents of other states who are traveling through or temporarily residing in the state will be handled according to their home state's laws.
John Cercone - Recognition of relationships for federal purposes (e.g. federal taxes) should be determined by Congress. The federal government can decide to recognize or not to recognize types of relationships independent of what the states decide.
"The federal government can decide to recognize or not to recognize types of relationships independent of what the states decide."
That strikes me as profoundly unjust. The federal government recognizes for tax and SS purposes all marriages legally sanctioned by the states except the same sex marriages of Massachusetts.
How is that not a violation of equal protection?
Eric Seymour wrote:
Or perhaps the law could just be repealed. But court cases are against the actual text of the law, not against hypothetical alternative texts of the law. And I doubt that even these changes would allow it to pass constitutional muster. The result of the due process analysis, in particular, demands that the state show that there is a compelling state interest that the legislation serves. What is that compelling state interest here?
What is the intent of the law, by the way? It certainly escapes me. What purpose does it serve for Oklahoma to make orphans of every child adopted by gays should they visit or move to Oklahoma? Even if one believed that gays should not be allowed to adopt, this law goes further than that - it actually dissolves already existing parent-child relationships. This is far worse than merely banning gay adoptions and I can't imagine anything other than sheer animus that could even begin to justify the law.
But that is the reason for laws like this - sheer animus, bigotry and hatred.
Enigma -
When Congress passed the Defense of Marriage Act, they specifically included a clause in the law saying that the Full Faith and Credit Clause does not apply to the recognition of same-sex relationships by any state.
Additionally, there is much case law supporting the right of one state to deny Full Faith and Credit to laws/acts/legislation of another state if recognition would be against the "strong public policy" of the recognizing state. This effectively allows states to ignore anything they deem immoral.
So, is the law effectively overturned? If not, what remains to be done?
Gretchen wrote:
For the moment, yes. The law cannot be enforced, but the state will likely appeal. There's not much that can be done, however, other than hope that the appeals court agrees.
Ed,
Sorry for the long delay in my response (a week of vacation, plus a 2-day conference, and trying to fulfill priorities at work and at home in between). I do think this deserves a response...
"But court cases are against the actual text of the law, not against hypothetical alternative texts of the law."
Of course. But I was pointing out that the "potential to make children...legal orphans" portion of the law was most likely an unintended consequence, which leads me to your second question...
"What is the intent of the law, by the way? ... I can't imagine anything other than sheer animus that could even begin to justify the law."
Well... It seems to me that it's pretty obvious if you *think* about the issue rather than try to demonize your opponents. As I said above, I presume Oklahoma does not allow gay couples to adopt children. In that case, this law appears to be aimed at preventing gay couples in Oklahoma from traveling somewhere to circumvent the Oklahoma law.
It's all well and good to argue as to why gay couples should be allowed to adopt children. It's rather dishonest, however, to claim that the "religous right" wants to yank children out of the arms of their adoptive parents.
Eric Seymour wrote:
I don't care much about intent, I care about reality. And I can't imagine that this was an unforeseen consequence. In a fight over a state referendum, there must have been numerous legal experts who weighed in to say that the result of this would be to turn adopted children of gays into orphans the moment they entered the state of Oklahoma. There's no way the framers of the bill could have been unaware of that; it should be obvious to anyone with even an elementary knowledge of the law. So whether unintended or not, there's no way they didn't know the ramifications of the law they passed.
Then why didn't they write the law to do that? Why didn't they limit it only to Oklahoma residents performing adoptions through an out of state agency? Again, there's no way they could have been unaware of what the law actually did. And again, the issue is the legal ruling striking down the law, which is based on what the law says, not what it should have said.
I don't think it's much of a stretch at all, and history supports me. Now, I don't think this is true of everyone who is a part of the religious right, but it's at least true of some prominent organizations - and not only do they want to take children away from adoptive parents, they want to take children away from their biological parents as well. In the Sharon Bottoms case in Virginia, where a child was taken away from his mother because she's a lesbian and given to his grandmother, I watched a litany of "pro-family" organizations on TV and in print cheering on that ruling from the judge. That included Jerry Falwell, Lou Sheldon and many other very prominent religious right leaders. Roy Moore in Alabama has come out explicitly for the notion that the children of gay people should be taken away from them. In the Florida case challenging the law against gay adoption, religious right legal groups filed briefs in the appeals court supporting a law that could result in children being taken out of the only home they've ever known solely because the foster parents were gay (in Florida, you can be a foster parent if you're gay, but you can't adopt). Again, I don't think this applies to all of the religious right. My stepmother is absolutely a part of the religious right, but she would be opposed to such laws. But if you think a significant portion of the religious right doesn't support taking children away from not only gay adoptive parents but gay biological parents as well, you're fooling yourself.
I'm sorry, Ed, but I can't accept your assertion that the authors "must have known" the bill would have that ramification, based only on your hunches and assumptions. Unless you have some evidence to offer, I think it is equally reasonable to assume that the debate on the bill focused on the merits of gay adoption and/or the likelihood of gay couples traveling to circumvent the Oklahoma ban, and that the implication for traveling families was honestly overlooked. What Jerry Falwell supports is one thing, but do you really believe that a *majority* of Oklahoma legislators would knowingly vote for such a bill when they could have easily amended the language to remove the implications for people traveling through their state and preserve the main intent of the bill?
As for the Sharon Bottoms case, as I recall there was more than the mother's sexual orientation at issue. For instance:
"Sharon Bottoms readily admits she wasn't always the best mother to her 2-year-old son, Tyler Doustou. Twice she smacked him so hard she left red marks on his rear end. She also cursed in front of him, and the first word he ever uttered was a four-letter vulgarity. Divorced for a year, Sharon, 23, lived off welfare and her income from a part-time cashier's job at a supermarket in Richmond, Va."
http://www.sodomylaws.org/usa/virginia/vanews26.htm
(And for what it's worth, if one believes that Ms. Bottoms was truly an unfit parent, it's hardly inconsistent for a pro-family organization to support giving custody of the child to his grandparent.)
Funny you mention Roy Moore. Do you still maintain that his use of the metaphor "the power of the sword" means he believes homosexuals should be executed for their sexual orientation alone? As I recall, even the left-leaning commenters at In The Agora thought that was a stretch.
Eric Seymour wrote:
All I would have to do is find a single instance where a legal scholar in Oklahoma said publicly that this is what the bill would do. If I dug back through the debate on the referendum, I bet I could find more than one who said so. But even if it's true that they didn't realize at the time that the bill would do this, why are they now throwing a fit about the court overturning it now that they know what the bill actually did? Now they know. Now they certainly have no excuse, yet they're screaming "judicial activism" - the religious right's version of the parrot's "polly wanna cracker" - because a judge struck it down. They can't claim simultaneously not to know the legal realities of what it would do and claim that those legal realities don't invalidate the bill if they don't support exactly what the bill does.
You're assuming that what you want the main intent of the bill to be was the main intent of the bill. I maintain that the main intent of the bill was to rally their anti-gay population to their side by being as anti-gay as they could get away with. Such legislation has nothing to do with making society better, it has only to do with pandering to bigots.
Okay Eric, now quote the very next paragraph:
And perhaps quote the accusations of the grandmother's alcoholism and string of abusive boyfriends. None of this, however, is particularly relevant to the argument I'm making. The legal issue in the case was based on Sharon being a lesbian. The grandmother argued that because sodomy was against the law in Virginia, the mother was a criminal and therefore should have custody taken away from her. The court agreed and all of those religious right groups cheered the court on.
This is a Paul Nelson-level distortion of what I said. I did not say that Moore believes homosexuals should be executed because of the phrase "the power of the sword"; I said that Moore believes homosexuals should be executed because Moore said that homosexuals should be either imprisoned or executed. I'll quote him:
The meaning is as clear as day. I know you think that he just mentioned imprisonment and execution as examples of the state's power to coerce, but the fact is that in the ruling this comes from, Moore cites a whole litany of ancient common law sources that argue for the execution of "sodomites" and argues that "God's law" trumps man's law, and quotes from Leviticus that homosexuals are to be put to death. It's hardly an unreasonable interpretation of his words.
And by the way, all of that vile anti-gay rhetoric in his decision was completely pointless and irrelevant to the case. At issue was a technical legal question of whether the appeals court had applied the correct standard of weighing evidence, but the mother's lesbianism had nothing to do with the legal issues. Moore's concurrence in the case brought up the mother's lesbianism for no reason at all other than to condemn her for it and claim that homosexuals are criminals and should not only be denied custody of their own children, but should be imprisoned or executed as well. It is an absolutely stunning opinion to read, just dripping with hate. Here's a linkto the ruling. Read that and tell me that Moore doesn't believe, at absolute minimum, that gays should be thrown in prison. If you can do that, you're either insane or a baldfaced liar.
Well, Ed, it appears that neither of us can prove our impressions of the Oklahoma legislature's intent (yours being a more cynical interpretation and mine being a more charitable one). I do want to address this, however:
I infer from your follow-up post that the second "they" in this setence refers to Tony Perkins and the Agape Press...not the Oklahoma legislators. I agree that the comments of the former on the court decision do not reflect well upon them. At best, they didn't read the text of the court's decision and at worst they read it but are choosing to play to their constituency anyway. However, the reactions of "religious right" activists hardly bears on the intent of the Oklahoma legislature (which I hope will amend their law in the way I've discussed here).
Yes, she sued on those grounds among others such as physical abuse. If I am wrong and the sole reason for the custody decision was the mother's sexual orientation, then I join you in disagreeing with the case. (I had not read the part about the accusations against the grandmother, btw; I was only looking for a citation of the other issues with the mother.)
And I still disagree that a large portion of the "religious right" would advocate taking children away from the only home they've ever known and giving custody of them to strangers, based only on the parents'/guardians' sexual orientation. (If custody goes to a close relative, the percentage of people who would approve of that certainly goes up.)
Finally, regarding the Roy Moore quote, I did not mean to distort what you said. In fact, the additional phrase does not change my conclusion that you are giving Moore a very uncharitable interpretation, and that to make the plain statement "Roy Moore wants to execute homosexuals" without explaining what you base that upon is highly misleading (on par with the sneakiest of tactics used in political smear ads).
If there were no controversial comment in Moore's statement--if, in fact, he were talking about the best way to keep insects away from your vegetable garden--even then we might ask him to clarify if he was really endorsing the things he prefaces with "such as." But since your interpretation results in such a shocking conclusion, it is extremely biased to insist on that interpretation as the correct one in light of more reasonable-sounding interpretations.
Finally, I'm sorry but I don't have the time to read that entire ruling, not to mention that your poisoning of the well hardly inclines me to take the time.
Eric Weymour wrote:
Actually, I've seen several quotes from the sponsors of the referendum saying the same thing. The law was actually a referendum, not a legislative statute. It has legislative sponsors, but was voted on by the people.
The decision was based on the fact that she was a lesbian. There were accusations of abuse on both sides, but the deciding factor was Sharon being a lesbian. And that's wrong, period. And, like it or not, it was cheered by many prominent religious right groups.
I don't believe I specified anything about "giving custody to strangers"; I merely said that many on the religious right advocates taking children away from gay parents. As I said, several prominent religious right groups cheered the Bottoms ruling, cheered the Supreme Court for turning down the Florida case on gay adoption, and cheer on sodomy laws in general. I don't know how high a percentage it is, but it's a sizable portion of them no matter how you slice it.
If only I had done what you accuse me of. I wrote an entire post explaining why Roy Moore believes that gays should be either imprisoned or executed. I linked to the ruling on which I base that conclusion. I explained why my interpretation is not only reasonable but, in my view, inescapable. The only reason you think it's "uncharitable" is that you wish it wasn't true. But the evidence is clear from his own writings, for the reasons I explained above (which you conveniently ignored).
How laughable. You claim that my interpretation is "uncharitable" and that other interpretations are "more reasonable", but when I point to numerous other statements in his ruling that support my conclusion, you suddenly don't have time to read it and are so offended by my "poisoning of the well" that you lack sufficent motivation to do so. All that means, of course, is that you have no grounds at all to claim that your interpretation is more reasonable than mine, or that mine is unreasonable at all, because you refuse to look at the evidence. What makes this statement even more ridiculous is that you accuse me above of making conclusionary arguments without providing the context to support them (when I've linked to the full ruling so that others can read it for themselves), yet you declare my interpretation to be unreasonable while refusing to read the whole ruling. The cognitive dissonance must be overwhelming.
True, but I think when most people read about children being taken away from their parents, they are not thinking about those children being given to their grandparents or other close relatives. That's the picture that enters my head, anyway.
As I recall, that post (on InTheAgora.com) was a follow-up to another post or a comment wherein you made the assertion (without any further explanation) that Roy Moore wants to execute homosexuals. I challenged you to back up the assertion, so you wrote the follow-up post. Unfortunately, I cannot find either the original post/comment or the follow-up which you are talking about. The ITA search engine leaves much to be desired, and Google isn't helping either.
By your own description, the most damning thing about Moore's ruling is that it is "dripping with hate." Well, a person can ooze with hate toward another without believing they should be imprisoned or executed. Is there any mention at all of imprisonment or execution in the ruling other than the passage you've already quoted? And really, why should I spend my time reading it when you've already laid out the insults that are waiting for me if I don't come to the same conclusion as you? What kind of basis for a civil debate is that?
The irony here is that you're using the same demonization tactics that (for instance) conservative groups use against the ACLU. Because of your visceral hatred of the man, you must paint him in the worst possible light and browbeat anyone who dares to question your description.
If Moore really believes homosexuals should be imprisoned and/or executed and had the audacity to write this opinion into a court ruling where it wasn't even relevant, why can't you find even one other instance where Moore has publicly expressed this opinion? An interview? An editorial? Heck, I'd even accept hearsay from a respected individual. Moore has not exactly hidden himself away from the public eye since being removed from the Alabama supreme court, and extremists don't usually make a statement once in a semi-obscure source (court rulings are not read by a very large number of people) and then never repeat it.
Eric Seymour wrote:
Oi vey. Is is right or wrong to take children away from gay parents? That is the only issue that matters and the only issue I spoke to. All this nonsense about strangers vs grandparents is an irrelevant attempt to shift attention away from that issue. It is wrong, period. And many prominent organizations and people in the religious right support it. End of argument.
You would be wrong again. I made a comment on In the Agora in which I said that Moore supports either imprisonment or execution for gays. That was after I had already written a long justification of that conclusion on my own blog, including a link to the full ruling. You claimed I was wrong then, without having bothered to read the ruling, and you're still claiming I'm wrong without having bothered to read the ruling. Why you think this helps your credibility any is beyond my ability to understand.
I really don't understand why you insist on distorting what I've said. By my own description, the fact that it is "dripping with hate" is not the most damning thing about it; that is merely a description of it. The most damning thing about it, as I've said many times, is that it actually says that the state has "the power to prohibit conduct with physical penalties, such as confinement and even execution" and that it "must use that power to prevent the subversion of children toward this lifestyle (homosexuality), to not encourage a criminal lifestyle." The second most damning thing about it is that it repeatedly cites the common law and Biblical tradition of executing homosexuals, even by stoning, to support his position. If you actually bothered to read the ruling, you would know that; since you refuse to read it, you don't. Yet you still want to claim that my interpretation is wrong without any evidence or arguments to support that claim.
Yes, dozens of them. I already told you this.
Why should you spend the time reading it? So you'll know what the hell you're talking about when you make claims about it. That's what an intellectually honest person does, Eric, they read something before making claims about it. The astonishing thing to me is that you are so blissfully unaware of the cognitive dissonance here. For crying out loud, you accused me of reaching my conclusion without providing the full context for people to judge (which was false, I did precisely that) and yet you are making claims about it while refusing to even look at the full context you falsely chastised me for not providing. Eric, you're obviously not a stupid man, but sometimes I wonder if there is a shred of intellectual honesty in you. If you find that insulting, I suggest not making such transparently contradictory claims that kill your credibility and then defend them even after they've been pointed out to you. The bottom line is that you don't have a clue what the context says - the same context you wrongly accused me of not providing - because you haven't read it, in fact because you refuse to read it. Yet you still have the chutzpah to tell me my interpretation of it is wrong.
I don't know how else you can interpret a statement other than looking at the full context of it. Maybe you've been busy pawing through goat entrails to divine the truth, or consulting an oracle, or praying about it, or using a Green Hornet decoder ring out of a box of Cracker Jacks. But you have no rational basis for making an argument for any interpretation of the remarks unless you read the whole dissent. And you know this because - surprise, surprise - you falsely accused me of doing it. But since that accusation does not apply to me but does, by your own admission, apply to you, suddenly it goes right out the window and you make excuses. All of which means, to be blunt, that you're really making quite a fool of yourself here and you're scrambling to save face.
LMAO. The last gasp of desperation. "He didn't really believe that unless he said it twice. Oh, you have two quotes? Then I mean 3 times. Or 4." Eric, seriously, you are making yourself look very, very bad here. I strongly suggest you give up and slink away.