A Stitch in Haste

Two positive developments that might have fallen under readers’ radar screens:

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ITEM: A federal appellate court, responding to activist legislators, has quite rightly ruled unconstitutional a vicious, spiteful “defense of adoption act” in Oklahoma. The openly bigoted law would have stripped recognition of out-of-state adoptions by gay couples. Think about that: Adopt a child in — well, anywhere except Florida* — move to Oklahoma, and the adoption is void, arguably up to and including state authority to seize the children.

As is so often the case with Full Faith & Credit issues, the analysis was somewhat arcane. Essentially, the court held that adoptions are “judgments” and that judgments always enjoy full respect and acknowledgement under Full Faith & Credit.

The court did not rule, however, that Oklahoma cannot discriminate against gay adoptive parents at all. One of the gay couples, for instance, was seeking to compel Oklahoma authorities to issue a revised birth certificate to both parents based on their adoption of a child in California. The court hinted that a separate (hypothetical) state law specifically denying gay adoptive parents such revised birth certificates could survive a Full Faith & Credit challenge, but that the law in question — which summarily declared all gay adoptions from other states to be null and void in Oklahoma — went too far.

The read-through to gay marriage is murky. A marriage is not considered a “judgment” (but a divorce is — go figure), so perhaps there is no read-through at all. The court also declined to rule one way or the other on due process and equal protection grounds; it limited itself to the Full Faith & Credit challenge.

Bravo, yet again, to the heroes of Lambda Legal.

The case is Finstuen v. Edmonson, No. 06-6213 (10th Cir., August 2, 2007) (PDF – 37 pages).

*And Utah, which bans adoptions by all unmarried couples, not just gay couples.

(To go off on a tangent: I wonder how Ron Paul would feel about this fact pattern. He embraces states’ rights powers, but also claims to embrace the Constitution — does that include the Full Faith & Credit Clause? He claims to care about children, but openly hates gays — and “rogue judges.” Such are the nightmares of an anti-federalist, yet anti-libertarian politician.)

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ITEM: This victory, meanwhile, is also important but is not particularly the kind that lends itself to celebratory press releases from gay rights activists —

A federal judge in Philadelphia has ruled that a long-term gay couple on probation has the same right to associate as a married couple.

Senior U.S. District Judge Marvin Katz issued the ruling in a case involving two Montgomery County men, Daniel Mangini and Steven Roberts, who were convicted in 2004 of dealing 100 grams of methamphetamine.

After their release from federal prison, the U.S. Probation Office declined to allow them to live together, citing a policy that forbids felons on probation from associating with other felons unless they are blood relatives or spouses.

Under the probation department rules, they were not permitted to speak, meet or e-mail during their five-year period of supervised release.

Before their arrests, Mangini and Roberts had lived together for 18 years, shared bank accounts, and helped raise a young girl.

This is is arguably a very important precedent. It essentially recognizes what lawyers might call “constructive marriage” (think of the archaic “common law marriages” of olden times), and puts forth the premise that a gay couple that cannot legally be married cannot then be summarily denied the legal protections that come with marriage.

One wonders what other protections might emerge from such a “constructive marriage” concept. As we saw above, gay adoption rights come to mind. Spousal privilege is another possibility. Intestacy laws and elective share are another.

Marriage is not simply a contract — in this the more radical libertarians are, with all due respect and camaraderie, flat-out wrong. It is a legal status, with legal protections that cannot always be replicated by contract. (And besides, to the extent that marriage can indeed by “replicated by contracts,” contracts are expensive in a way that “I do…” is not.)

More details from the ACLU. (Via Bilerico.)

Similar Posts:

• On the Inevitable “Gay v. Gay” Litigation
• CRS Recommendation: Same-Sex Marriage — Legal Issues
• Victory in New Jersey
• Becker-Posner on Gay Marriage
• Washington Gay Marriage Victory

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