A decision by the Florida Second District Court yesterday on an interstate same-sex adoption case presents a legal quandary boiling beneath the surface of the courts that could undermine traditional marriage laws even in states that have taken constitutional stands against same-sex unions.
The appellate court in Florida cited the U.S. Constitution’s “Full Faith and Credit Clause” – which requires states to honor public acts, records and court decisions from other states – to rule that despite Florida’s ban on same-sex couple adoptions, a Christian resident must share custody of her biological daughter with her former lesbian partner, because the child was legally adopted in a state that permits same-sex couple adoption.
Mathew Staver, founder of Liberty Counsel, which is representing the biological mother, explained to WND that how the Full Faith and Credit Clause is applied to same-sex issues amounts to a “million-dollar question,” the answer to which could alter the national marriage landscape.
“We have a specific federal Defense of Marriage Act that says the Full Faith and Credit Clause will not apply to same-sex marriage,” Staver said, “but the question that comes up is, what about something that is significant to the essence of marriage or family, like adoption?
“Florida has a constitutional amendment that says same-sex marriage will not be recognized,” Staver continued, “and the question is, does that apply down to adoption? If not, then can [homosexual advocates] avoid a frontal attack on marriage, but still piecemeal the underlying essence of marriage and bring it in through the back door?”
“Once you use the Full Faith and Credit Clause to mandate enforcing adoption, you can then enforce child custody, child support, visitation – you are treated just like a spouse,” Staver told WND. “Once you recognize parental rights of a same-sex person or parties, then you have the same kind of spousal recognition you have within the context of marriage.”
Staver further explained that in the Florida Second District Court decision from yesterday, enforcing the custody rights of the former lesbian partner creates additional problems, both for family law and for the biological mother, who is now engaged to marry a man.
“It undermines the purpose of the marriage laws,” Staver told WND, “because you have two legally recognized ‘moms,’ and then you have a stepfather, who would like to adopt the child, but would be prohibited from doing so, because the girl already has two ‘moms.’
“You can’t have three parents with this child,” Staver said, “or you create something like polygamy.”
As WND reported, the Florida case involves Kimberly Ryan and her former lesbian partner, Lara Embry, who began a relationship while they lived in Seattle, Wash., and registered as domestic partners. Ryan had a daughter through artificial insemination on Feb. 21, 2000, and a Washington court allowed Embry to adopt the baby and listed her as a second parent.
The lesbian couple moved to Sarasota, Fla., in August 2002 and ended their relationship just two years later, after which they informally rotated custody and visitation arrangements with Ryan’s daughter for two more years.
Ryan eventually left her homosexual lifestyle, became a Christian and is now engaged to be married, but she grew concerned that the visits were not good for her 9-year-old daughter and discontinued the plans with Embry.
Embry demanded that a Florida court enforce the Washington adoption decree and allow her to continue visiting Ryan’s daughter.
While the trial court dismissed her petition, the appellate court reversed the decision, arguing that “the trial court was required to give the Washington adoption judgment full faith and credit.”
Further, citing a Florida law governing adoptions, the court ruled, “Embry therefore must be given the same rights as any other adoptive parent in Florida.”
Staver explained to WND, however, that the 1998 U.S. Supreme Court decision Baker v. General Motors Corporation makes a distinction between a state recognizing another state’s ruling through the Full Faith and Credit Clause and requiring a state to enforce another’s same-sex policies.
“So while a state might recognize an adoption from other state, if Florida, for example, has a mechanism contrary to same-sex adoption, you can’t force Florida to enforce the other state’s mechanisms,” Staver said. “You can’t force Florida courts to enforce custody, visitation and support rulings because Florida does not recognize same-sex relationships.”
“A parallel example already exists in Florida,” Staver explained “Florida has a homestead exemption that prohibits forcing someone to sell their home to satisfy a debt. Assume that a Florida resident had a financial judgment levied against them in another state. The judgment can be enforced, but Florida gets to decide how it is done. It can be enforced by garnishing wages, because FLA has a mechanism for that, but it can never be enforced by forcing someone to liquidate their house because FLA has a law to protect against that. Even though the other state may allow forcible sale, Florida doesn’t. You can’t force Florida to abide by the out-of-state ruling.”
“Likewise,” Staver said, “while Florida may recognize the existence of the adoption, when it comes to enforcing custody, visitation and support, Florida can say, ‘No, we can’t do that because that’s contrary to our policies. We don’t enforce same-sex parenthood.'”
An appellate judge’s concurring opinion in the Embry v. Ryan case argues that Florida adoption law is written to oblige the state to uphold Washington’s adoption rulings and that the same-sex nature of the former couple is irrelevant.
Liberty Counsel has pledged to appeal the decision to the Florida Supreme Court.
“The law of the state has been firmly established and affirmed last year by the passage of a state constitutional marriage amendment,” Staver said earlier in a statement. “The state of Washington cannot rewrite Florida adoption law and commandeer the state to enforce its contrary policy.”