Finstuen v. Crutcher, 06-6213 (10^th Cir., Aug. 3, 2007)

In a blockbuster ruling, a divided panel of the Tenth Circuit has struck down an Oklahoma statute that prohibits the state from recognizing same sex adoptions from other states. The majority concludes that the statute violates the Full Faith and Credit clause. Although the constitutional ruling is a doozy, the crux of the opinion deals with the many procedural quirks of this case.

First, there is a big standing problem. Let’s be honest: same sex couples who have adopted elsewhere are not exactly clamoring to move to Oklahoma. So it is difficult to find plaintiffs who can challenge the law. Oddly enough, the majority concludes that the two plaintiffs who actually live in Oklahoma lack standing because they have yet to suffer an injury at the hands of state officials. But in this consolidated appeal, the Court concludes that two California plaintiffs have standing, because their child was born in Oklahoma and the state has refused to reissue the child’s birth certificate with the adoptive parents’ names.

Next, there is a big justiciability problem. After losing at the district court level, only one defendant appealed: the Oklahoma State Department of Health, which is responsible for issuing birth certificates. On appeal, OSDH raised several new and creative arguments for why the Tenth did not need to reach the constitutional issue: challenging the legality of the plaintiffs’ adoption, raising other statutory grounds for not issuing the certificate, conceding that it would not enforce the statute in a way that violates the Equal Protection Clause, and - in the last refuge of a scoundrel - trying to moot the case by agreeing to issue the birth certificate to the plaintiffs.

The majority of Judges Ebel and O’Brien didn’t buy Oklahoma’s elaborate effort to destroy justiciability on the ultimate constitutional question. In a short dissent, Judge Hartz takes issue with the majority’s rush to judgment. As for the merits of the decision, read it now.  With so many ways for an en banc court, or even the Supremes, to vacate this decision, you might not have much time.

Posted Sat, 04 Aug 2007 07:04:49 and filed under Decision of the Day. You can leave a response, or trackback from your own site.