08/06/2007 06:36 pm ET Updated May 25, 2011

Recognizing Out-of-State Adoptions:

I just read the Tenth Circuit opinion on recognition of out-of-state adoptions (cited and discussed by my coblogger Dale Carpenter on The Volokh Conspiracy). Oklahoma law generally recognized out-of-state adoption judgments, but specifically exempted any out-of-state "adoption by more than one individual of the same sex." This, the Tenth Circuit held, violated the Full Faith and Credit Clause — "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." The panel's ruling was 2-0 on the constitutional question, with one judge dissenting because he would have accepted Oklahoma's narrow reading of the statute that would have rendered the statute inapplicable to the relevant parties.

The Full Faith and Credit Clause analysis sounds right to me, but I'm not an expert on that Clause, and in any case want to leave the constitutional analysis to others. Here I just want to ask: Even if restrictions on recognition of out-of-state adoptions are constitutional, wouldn't they be a remarkably bad idea, and especially bad for children?

Consider especially children who are adopted by two new parents, rather than situations where a parent's child is also adopted by a second person (whether a same-sex partner or a traditional stepparent). The child's birth parents are often out of the picture — sometimes dead, sometimes unfit, sometimes just moved on to other matters. The adopted parents will often be the only parents the child ever knew. Even in open adoptions where a birth parent or parents remains in contact with the child, the whole point of the adoption is to relieve the birth parents of legal rights and responsibilities over the child, and to let the child be raised by — and bond with — the adoptive parents, with only a minimum amount of participation by the birth parents.

So here's this child, who has been raised by the adoptive parents for years. She comes to Oklahoma — perhaps on a trip to visit the adoptive parents' family or friends, alone on some school trip, or when the family moves to Oklahoma for a parent's job. Now some occasion arises on which Oklahoma law must determine the child's parents: An Oklahoma hospital needs to get consent for medical care; an Oklahoma police agency needs to determine whether the adults with whom the child is are legally authorized custodians for the child; an Oklahoma school needs authorization for this or that from the parent.

Under Oklahoma law, as I read it, the adoption can't be recognized. So who are the child's parents? Why, the biological parents, wherever they are and whatever they may be doing. Even if the adoptive parents can be somehow treated as the child's guardians, presumably there'd need to be some checking with the biological parents. What if the biological parents are virtually impossible to find? What if they are dead? What if they decide to reassert their parental rights, almost certainly very much against the child's desires, but perhaps if they're trying to implicitly extort some payment from the adoptive parents? (Such implicit extortion can take place without any incriminating statements being made by the biological parents.) [UPDATE: Some commenters suggest that perhaps the termination of the biological parents' rights would be recognized but the adoption by the adoptive parents would not be — in which case, the child would have no legally recognized parents, and might perhaps then end up the ward of the state, hardly an improvement over the scenario I first described.]

What a horrible situation for the child — to have the government not recognize the only parents you've known as your parents, and to have the government thus interfere with your ability to get all the services that require your parents' approval. This is much worse than not having your parents' marriage recognized as a marriage, which might burden you in other ways. It's much worse than even not having one of your parents recognized as your parent (bad as that would be). It might put you in the position where there is no-one close to you who has the legal power to help you in those legal contexts that require a parent.

And what possible justification can there be for harming children this way? Say you think that children are better off with parents of the opposite sex than with parents of the same sex. I'm not sure that's right; and I syspect that restricting adoption will on balance leave more children with no permanent parents at all, the worst possible situation for them.

But even if children are better off with parents of the opposite sex, I doubt that the Oklahoma law will have much of a deterrent effect on adoptions by same-sex couples. Certainly people who adopt in California are unlikely to decide not to adopt (or to adopt with a different partner) because of a fear that they'll have trouble if they move to Oklahoma. Perhaps a few Oklahoma couples won't leave the state to adopt and then come back. Yet on balance the harm to adopted children will, I think, very much outweigh whatever conceivable benefit there may be in shifting some adoptions away from same-sex couples and towards opposite-sex parents.

So the Oklahoma statute would either harm children of same-sex couples who visit or move to Oklahoma — or will lead their parents not to go to Oklahoma at all, or let their children go to Oklahoma. I see no plausible justification for either alternative, which is why it seems to me that, even apart of constitutional questions, laws such as Oklahoma's should be strongly condemned.