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Loading ...Court rules Fla. must honor gay second-parent adoptions
05.13.2009 1:40pm EDT
Sarasota, Fla.) Today, the Florida Court of Appeals unanimously reversed a lower court ruling and held that Florida must give full faith and credit to adoptions granted to same-sex couples by other states, holding that Lara Embry, the plaintiff in the case, “must be given the same rights as any other adoptive parent in Florida.”
The court based its decision on the Full Faith and Credit Clause of the federal constitution and a Florida statute requiring Florida to honor adoption decrees from other states.Noting that “there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state,” the court concluded that “regardless of whether the trial court believed that the Washington adoption violated a clearly established public policy in Florida, it was improper for the trial court to refuse to give the Washington judgment full faith and credit.”
A concurring opinion further noted that Embry’s “same-sex relationship with [the other parent] is irrelevant for the purpose of enforcing her rights and obligations as an adoptive parent.”
Lara Embry had filed a petition seeking shared custody of a child she had raised with her former partner, Kimberly Ryan. The couple had two children together. Each gave birth to one child, and each adopted her non-biological child through a second-parent adoption in the state of Washington, where the family lived. The couple moved to Florida, and their relationship ended several years later. They agreed to share custody of both children and did so successfully until Ryan unilaterally decided to separate the children, who are deeply bonded as siblings, and cut off all contact between Embry and one of the children.
The National Center for Lesbian Rights (NCLR) and Leslie Talbot represented Lara in her initial suit for shared custody. In February 2008, a Florida trial court held that Florida would not recognize the couple’s second-parent adoption. NCLR, Karen Doering, and the law firm of Carlton Fields represented Lara in the appeal. Former Judge John R. Blue and Cristina Alonso, attorneys with Carlton Fields briefed and argued the case before the Second District Court of Appeal on March 18, 2009.
“We are pleased this decision resolved an important constitutional issue and protected the legal bond between adoptive parents and their children,” said Blue. “The court affirmed the longstanding rule that Florida must honor valid adoptions from other states, which ensures the permanence and stability of parent-child relationships across state lines.”
“Noting that “there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state,” DOES THAT INCLUDE MARRIAGES?
I’m no legal expert, but I would say this ruling sets a precedence…
Hi LOrion,
I doubt it includes marriages as 1) same sex marriage is explicitly banned in the constituition and 2) marriage, unlike adoption, is not a judgement of the court, it is a contractual agreement in which a judge signs a license certifying the marriage agreement was contracted
This a big first step. And steps lead to finish line.
By the way, brad is correct.
BUT: Marriage recognition may become a civil right of children. Children who two same sex parents, where the family moves intact to the state of Florida, may be discriminated by government for not allowing their parents marriage to be recognized. It creates a sense that the government is discriminates based solely on a child’s parents gender and marital status.
It’s about frikkin’ TIME someone invoked the Full Faith & Credit Clause. (I’ve been recommending as a legal tactic for some time now.) It definitely SHOULD apply to marriages perormed legally in other jurisdictions. How absurd to cross a border and all of a sudden you’re no longer married.
Could someone tell me why gay citizens are not (or should not be) covered by ALL aspects of the FEDERAL Constitution, including not only the Equal Protections Clause but also the Full Faith & Credit Clause?
OK, let’s get to the heart of this – ANOTHER freaking gay couple who has one member who thinks they can form a family with someone, raise children with them, then have the audacity to use the anti-gay laws of the state they’re currently in to screw the other half out of custody or even visitation!
These people, in my opinion, are the lowest of the low and fortunately in a lot of cases, are stopped in their tracks. Every time a new case like this pops up, my faith in humanity goes a little further down.
@Brad – just for clarification – Same-sex marriage is NOT prohibited in the US Constitution. If you are ref. to the FL Constitution, it is irrelevant because the Full Faith & Credit Clause would still supercede any State Mandated restrictions. Just wanted to point out that the governing Constitution of the US does not limit marriage to the 1 man/1 woman concept pushed by the religious right, marriage has never been officially designated as that.
LOrion: The Defense of Marriage Act (DOMA), signed by President Bill Clinton, specifically prohibits the full faith and credit from applying to marriages in other jurisdictions. Otherwise, the full faith and credit clause of the US Constitution applies to all other judgments of Courts in other jurisdictions. Same sex marriage is NOT prohibited by the Constitution; it is prohibited by DOMA.
Same sex marriage is not “explicity banned in the US Constitution” – that’s the whole point!! It is DOMA that does not allow the government to recognize same sex marriages.
Professor Gaudard (or anyone else),
“The Defense of Marriage Act (DOMA), signed by President Bill Clinton, specifically prohibits the full faith and credit from applying to marriages in other jurisdictions. Otherwise, the full faith and credit clause of the US Constitution applies to all other judgments of Courts in other jurisdictions. Same sex marriage is NOT prohibited by the Constitution; it is prohibited by DOMA.”
Please help me understand – how can a clearly UN-Constitutional law be put in place, merely by adding words to the effect that “The U.S. Federal Constitution does not apply to this U.S. Federal law, nor to the citizens affected by it.”???
How can the Full Faith & Credit Clause apply to the Lovings’ inter-racial marriage, but not mine???
Very curious.
I Remain Hopeful…
Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called “Public Policy“ exemptions, they can still be struck down because they violate the of Due Process and Equal Protection clauses of the US Constitution.
As marriages are considered contractual agreements and not the result of court proceedings (such as adoption — which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.
The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.
I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.
By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous “Liberty Clause“ of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things — without exception. Although, there could have been unintended consequences if Justice O’Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.
If O’Connor argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) — leaving, of course, homosexuals with no physical expression to their intimate relationships at all.
Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.
Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America — without exception.
I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people — as strained as it is from time to time.
…So, I remain hopeful.
© Bud Evans
http://rainfish2000.blogspot.com
http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause
To answer George’s question: The Full Faith and Credit Clause reads:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
This means that Congress may by law determine which acts will be recognized and how they will be recognized. Therefore, DOMA is unfortunately constitutional under the Full Faith and Credit Clause. The Supreme Court could however strike it down on the basis that it violates’ gays’ and lesbians’ right to equal protection under the law, which is guaranteed by the 14th Amendment.
I Remain Hopeful…
Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called “Public Policy“ exemptions, they can still be struck down because they violate the of Due Process and Equal Protection clauses of the US Constitution.
As marriages are considered contractual agreements and not the result of court proceedings (such as adoption — which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.
The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.
I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.
By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous “Liberty Clause“ of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things — without exception. Although, there could have been unintended consequences if Justice O’Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.
If O’Connor argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) — leaving, of course, homosexuals with no physical expression to their intimate relationships at all.
Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.
Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America — without exception.
I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people — as strained as it is from time to time.
…So, I remain hopeful.
© Bud Evans
I have a question. Say me and my partner get married in Mass. When then decide to have a baby, if we leave Florida and the baby is born in Mass. My name will go on the birth certificate because we are married, correct? Now when we go back home to Florida there’s nothing they can do now right? Because this decisions tells them they have to honor the birth certificate of which I am listed as a parent.