Tenth Circuit hears challenge to Oklahoma’s adoption law

Posted on 22 Oct 2006 at 5:25pm
By Ann Rostow Contributing Writer


Judge Robin J. Cauthron

Oklahoma is home to one of the most disturbing anti-gay laws in the country. Hurriedly passed in April 2004, the law amended the adoption code to ban the state from recognizing “an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.”

Lambda Legal Defense wasted no time in challenging the measure, which set a new standard in statutory animosity towards gay and lesbian families.

After Lambda won in federal court last May, the state appealed, setting the stage for a showdown before the U.S. Court of Appeals for the Tenth Circuit. Oral arguments were held before the federal appellate panel Nov. 13, and the legal community will now sit back and wait for a ruling from the three-judge court in Denver.

While Florida stands out for its unique ban on adoption by any gay man or lesbian, Oklahoma’s amendment puts the Sooner State in a category all its own, effectively dismantling the legal relationships between parents and children that have already been established by sister courts.

Under settled law, an adoptive parent has the same rights and status as a biological parent. So, imagine relocating from Trenton to Tulsa, only to learn that the state of Oklahoma does not recognize your family ties.

Indeed, the idea is so out of sync with basic legal principles, that it was not a surprise when U.S. District Judge Robin J. Cauthron struck the amendment as unconstitutional six months ago.

If anything was surprising, it might have been that the state of Oklahoma appealed Cauthron’s decision to the Tenth Circuit, one rung down the judicial ladder from the U.S. Supreme Court.

The state justifies the law as an effort to promote traditional families and to be able to place children for adoption in “a secure loving home.” But as Cauthron noted, the children affected by the amendment are already adopted, presumably by parents with secure and loving homes. And even if attempts to promote traditional families were considered a legitimate state interest, which is highly debatable, there is no connection between such a goal and the arbitrary termination of parental rights based solely on sexual orientation.

The legislature itself was less tactful in explaining its own motivation back in 2004. According to the legislative record, the law was designed “to protect Oklahoma children from being targeted for adoption by gay couples across the nation and to ensure that children are raised in traditional family environments.”

In fact, the amendment was spawned in an election year after the state attorney general ordered a state agency to issue a corrected birth certificate for a baby girl adopted by two gay men in Washington.

When the state initially balked at typing two men’s names into the spaces for parents, officials asked Attorney General Drew Edmondson for a legal opinion. Edmondson wrote back that the U.S. Constitution’s Full Faith and Credit Clause required Oklahoma to provide corrected documents in such cases, and that both legal parents were to be listed on the paperwork. The incident prompted politicians to rush their amendment to the governor’s desk, where Gov. Brad Henry signed it into law.

Lambda originally sued on behalf of the two Washington men, as well as two lesbian couples. The two men, Gregory Hampel and Edmund Swaya, were dropped from the suit for lack of standing as Washington residents.

One of the lesbian couples had adopted a child together in California, and subsequently moved to Oklahoma. The other couple had contracted a second-parent adoption in New Jersey before relocating to the state. Even though only one of the mothers was an adoptive parent, the adoptive mother nonetheless argued that the amendment put her parental status at risk and left the family vulnerable.

This article appeared in the Dallas Voice print edition, November 24, 2006.

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