A Service of Rainbow Law

A Florida appeals court has ruled that the state's statutory ban on gays adopting children is irrelevant to the question whether a Florida court must give effect to a lesbian co-parent's adoption of her former partner's child in another state.  A unanimous three-judge panel ruled in Embry v. Ryan, 2009 Westlaw 1311599 (Fla. 2nd District Ct. App., May 13, 2009), that Lara Embry is entitled to be treated as the legal parent of her adopted daughter in a dispute over her parental rights.  Embry is represented by cooperating and staff attorneys from the National Center for Lesbian Rights.

According to the opinion for the court by Judge James Whatley, Embry and Kimberly Ryan "were engaged in a romantic relationship while living in the state of Washington" when Ryan gave birth to their daughter on February 12, 2000.  Embry adopted the child in a "second-parent adoption" proceeding in Washington on May 10, 2000.  The women and their child subsequently moved to Florida, and the parents ended their relationship in 2004, entering into a child custody, visitation and property settlement agreement that provided access to the child for Embry.  However, according to an Associated Press article published May 14 in the Sun Sentinel, a Florida daily newspaper, Ryan married a man and decided that her new Christian beliefs were inconsistent with allowing her former partner to have contact with the child, so she blocked contact. 

When Embry filed suit to establish her parental rights, Ryan moved to dismiss, arguing that it would violate Florida public policy to recognize Embry as a parent because of Florida's statute forbidding gays from adopting children.  (The statute has been declared unconstitutional by two trial judges in recent litigation, and one case is on appeal by the state.  Closeted gay Governor Charlie Crist and the Republican majority in the state legislature steadfastly refuse to modify the disgraceful law, the only one of its kind in the nation.)  The trial judge, Sarasota County Circuit Judge Donna Berlin, displaying her ignorance about the U.S. Constitution's Full Faith and Credit Clause, granted Ryan's motion to dismiss the case.

I use the word "ignorance" advisedly.  There is plenty of ignorance floating around about the Full Faith and Credit Clause (FFCC), some of it unfortunately attributable in part to gay rights activists back in the 1990s when the same-sex marriage issue flaired into public consciousness with the Hawaii Supreme Court's first decision in the Baehr v. Lewin marriage case.  At that time, some activists exclaimed that of course same-sex marriages from Hawaii would have to be recognized in all other states because of the Full Faith and Credit Clause; the same exclamation emanated from anti-gay forces, stirring up panic among the right-wing.  This assertion was incorrect, as the Supreme Court has never construed the FFCC to mandate marriage recognition regardless of the marriage laws of the state where recognition is being sought or asserted, but it led to two consequences. Some people actually looked into the case law and discovered that on some issues the Supreme Court has recognized a public policy exception to FFCC, so many jurisdictions responded to the same-sex marriage flap by adopting state statutes explicitly barring recognition of same-sex marriages, making their public policy explicit.  At the same time, Congress got into the act by passing the federal Defense of Marriage Act, purporting to relieve states of any obligation under the FFCC to recognize same-sex marriages from other states, an obligation that they didn't necessarily have.... 

But all of this is irrelevant when it comes to recognizing adoptions, because an adoption is the result of a judgment by a court.  Every jurisdiction requires a judge to sign off on an adoption with an official court order.  And the Supreme Court has construed the FFCC consistently to hold that a court judgment is entitled to recognition and enforcement, without regard to any "public policy exception," so long as the court had jurisdiction over the subject matter and the parties to the case. 

Thus, Judge Berlin's conclusion that Florida's gay adoption ban provided a public policy basis to refuse to recognize the adoption was clearly wrong, so wrong that Ryan's attorneys from Liberty Counsel, the anti-gay right-wing Christian litigation group, conceded as much in their response to the appeal during the oral argument, according to Judge Whatley's opinion.  

Wrote Whatley, "In interpreting the Full Faith and Credit Clause, the United States Supreme Court has held that '[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land," citing Baker v. General Motors Corp., 522 U.S. 222, 233 (1998).  "Further," wrote Whatley, "the Court held that there are no public policy exceptions to the full faith and credit which is due to judgments entered in another state."  To top it off, Florida has its own statute mandating that out-of-state adoptions be recognized in Florida, and that statute, Sec. 63.192, states no exceptions to that general rule. 

"Therefore," concluded Whatley, "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."  The court reversed Judge Berlin's ruling and sent the case back "for further proceedings consistent with this opinion."

Judge Carolyn Fulmer wrote a separate concurring opinion to address a separate argument made on appeal by Liberty Counsel: that while Florida might have to "recognize" the adoption, it needn't "enforce" it.  Fulmer rejected this argument for the sophistry that it is, saying that it "lacks merit for several reasons."  For one thing, the issue before the trial court was not whether to "enforce" an adoption decree; once the adoption decree is recognized, Embry stands as a legal parent of the child.  "Florida law expressly grants parental rights to any person who has obtained the status of parent by virtue of an adoption decree from a sister state," Fulmer pointed out.  Furthermore, the Florida statute on adoption recognition, cited above, specifically provides that "the rights and obligations of the parties on matters within the jurisdiction of this state shall be determined as thought the judgment were issued by a court in this state."  Fulmer also noted that this argument was raised for the first time on appeal, a violation of proper procedure as it should first have been presented to the trial judge.

Consequently, wrote Fulmer, "Ms. Embry's same-sex relationship with Ms. Ryan is irrelevant for the purpose of enforcing her rights and obligations as an adoptive parent," which makes irrelevant, for example, Florida's statutory and constitutional ban on legal recognition for same-sex partners.  Strictly speaking, the only legal issue in the case at this point concerns Embry's relationship with her daughter, not her relationship with her former partner. 

Of course, with Liberty Counsel on the case for Ryan, this is "cause" litigation, which means an attempt will be made to appeal the decision to the Florida Supreme Court.

Read the original article at Leonard Link

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