An appeals court yesterday
ruled unconstitutional a law passed by the Oklahoma legislature in 2004 that was designed to make a child adopted by a Seattle gay couple into a legal orphan in the state where she was born. [
Opinion in pdf format here.] The legislature passed its draconian law after Greg Hampel and Ed Swaya asked the state of Oklahoma to issue a birth certificate for their adopted child that included both their names.
The state's Department of Health issued the requested birth certificate, but legislators quickly responded with the new law on "foreign adoptions" directing that Oklahoma agencies "shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction."
The Denver Post had this
summary of the case in November when arguments were presented to the Denver-based 10th Circuit Court:
When Ed Swaya and Gregory Hampel of Seattle adopted their daughter Vivian, now 4, they counted on her eventually getting to know her birth mother in Oklahoma.
But now they're wary of even entering Oklahoma until a federal court in Denver decides the fate of an unprecedented state law that would challenge adoption rights of same-sex couples.
Oklahoma officials this week launched a legal push to uphold the Adoption Invalidation Law, passed in 2004, that would ban state officials from recognizing a same-sex adoption.
Same-sex couples anywhere with legally adopted children would lose their status as parents when inside Oklahoma -- meaning doctors, educators, police and others would treat them legally as strangers.
A federal judge in Oklahoma struck down the law in May.
Oklahoma officials have appealed, and now the Denver-based 10th Circuit Court of Appeals must decide whether to affirm the lower court's decision -- setting a precedent in what is emerging as a hot legal issue nationwide. The appeals court heard arguments in the case this week.
"This is about my daughter's rights," Swaya said. "We will not go to Oklahoma now, and that is hurting my daughter. My daughter has a right to know her birth mother."
Partners Swaya, 46, and Hampel, 37, were among the adoptive parents challenging the law.
Swaya and Hampel adopted Vivian in 2002 after she was born to a 19-year-old woman named Jenny, who selected them after viewing their website.
Lambda Legal
filed suit against the state of Oklahoma on behalf of Hampel and Swaya and two other couples whose adoptions were affected by the Oklahoma law.
Each family is headed by a same-sex couple with children adopted in Washington, New Jersey and California respectively. Two of the families moved to Oklahoma; the third still lives out of state but wishes to travel to Oklahoma. We argued that the law is unconstitutional. A Federal Court struck down the extreme law and prohibited state officials from enforcing it in the future.
For technical reasons, both the lower court and the appeals court declined to consider Hampel and Swaya's specific case, but both courts now stuck down the Oklahoma law based on the situation of one of the other parties in the suit. The appeals court ruled yesterday,
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. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause.
Oklahoma is expected to
appeal yet again. A legal-issues blog that called yesterday's ruling a "blockbuster decision" notes that the three-member appellate court issued a divided ruling.
Although the constitutional ruling is a doozy, the crux of the opinion deals with the many procedural quirks of this case. ...
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.
A different legal-issues blog prefers to
look at the merits of the three cases involved and offers this conclusion:
Also, as a practical matter, it has been observed that Oklahoma has the second highest divorce rate, after Nevada. Therefore, if there are gay people that are adopting in Oklahoma, they probably have a more stable relationship than straight married people. So, let me make it clear to all the "family" values types. Wouldn't you rather have mature, stable, gay people (that have been screened for the maturity and stability by the government) adopting and raising kids, then the large numbers of people that got married just because the girl happened to get pregnant? Quite frankly, adoption (gay is straight) is a much more involved process than copulation, and anyone that begins (much less completes) the process is pretty darn sure they want to raise a child.
Labels: gay news, law, Seattle, Washington
