quote: At issue in this case was whether the Colorado court overstepped its authority by refusing to give "full faith and credit" to Missouri's judgment as required by federal law and the U.S. Constitution.
In the Colorado case, the two parties agreed to the adoption in an April 2003 agreement filed in Missouri court. The terms allowed the 28-year-old birth mother, who lives outside St. Louis, to take Alex back as long as she changed her mind before the judge gave final approval to the adoption.
Subsequently, the Missouri court allowed the child to be placed with the adoptive parents but delayed final approval because the birth mother refused to identify the baby's father, as required by Missouri law.
After repeated delays, the mother revoked her consent and the court terminated the adoption in October 2003.
The Colorado couple then filed suit in their home state, alleging that they still had rights to Alex after caring for him for six months, because Missouri did not apply the strict review of a child's "best interests."
At least 38 states, including Missouri, do not apply a "best interests" standard; as a result, their custody determinations could be subject to attack by adoptive parents in other states whenever they disagree with the result, according to the birth mother's filing.
First, a caveat: SCOTUS declining to take a case does not mean they consider the decision to be constitutional. However, if this is an indication of SCOTUS's thinking on full faith and credit, it has obvious implications for state-by-state implementation of civil gay marriage or civil unions. It's further evidence that the full faith and credit clause, more so than many constitutional provisions, does not mean what the average person thinks it means.
Anyone making statements about whether states will be required to recognize other states' gay marriages, or whether the DOMA will be found constitutional if challenged, is making no more than a guess.
posted
Dag, if states don't have to give full faith and credit, would it have an impact on things like legalization of pot and other controversial issues?
The reason I ask is that there are things that are leagal in some parts of the U.S. that aren't legal in other parts of the U.S. For example, Most states allow lottweries and betting at horse and dog tracks, but to there are few places in this country that allow all forms of gambling.
I'm just wondering what kind of impact this will have.
Another question. Will it be affected by the coming changes in the court's membership?
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posted
The phenomenon of some acts being legal in one state and not in another doesn't implicate the full faith and credit clause, so gambling and marijuana legalization aren't affected by this principle.
Full faith and credit affects things like judgments - if I successfully sue you in state A, I can go to court in State B to attach your assets, and you can't argue about whether or not you owe me the money. State B has to give "full faith and credit" to that judgment. It applies to recognition of adoptions and marriages, but many laws affecting these go beyond mere recognition, and this is a legal gray ares.
I have no clue how the coming changes will affect this - there haven't been enough precedents to make a good guess.
posted
Thanks for clearing that up. It'll be interesting to see what changes occur within SCOTUS over the next 4 years.
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posted
I wrote a thread about this a while ago. While I realize that some of my points were generalizing things way too much, my main point--that is, that many conservatives would have no problem if states were allowed to decide on the issue of gay marriage, as long as other states were not required to recognize any one state's definition--is still valid.
My solution--amending the constitution so that the DOMA would have constitutional protection--may seem extreme, but right now it seems like the only way to allow states to truly be able to decide what relationships they want to recognize. Essentially, it eliminates the possibility of any court deciding to strike down the DOMA, which seems to me to be the best compromise legislation out there. Of course, for reasons already stated, it seems unlikely for the SCOTUS to uphold such a decision, but for many people, "unlikely" isn't good enough.
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posted
"right now it seems like the only way to allow states to truly be able to decide what relationships they want to recognize"
I'm waiting for Wisconsin to get the right to decide that it doesn't need to recognize Microsoft's corporate status. When do you think that will happen?
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SCOTUS went through considerable twists and turns it to make it possible to sue corporations in the state where they committed torts, and not just in the state where they were incorporated. The whole time this was going on, corporations demanded (and got) the legal protection of corporate status in those other states.
posted
Unless I'm reading these replies wrong (which, I admit, is entirely possible, since I have no idea what the legal background for the Microsoft case is) then I would say that neither of them have addressed my point. I didn't say that it was likely that the DOMA would be overturned (in fact, I said the opposite) but that the mere possibility exists, under certain interpretations of the constitution.
Likewise, the possiblity of a complete overturn of Roe v. Wade also exists, under certain interpretations of the constitution. For those who don't want to see an overturn of Roe v. Wade, the only permanent solution is to amend the constitution to include the "right to choose." The constitution is a pretty vague document.
Thus, my point remains valid. The only way to remove the possibility of a court interpreting the constitution in a way you do not agree with is to get 67% of both congressional houses, the President, and 75% of states to agree with you.
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posted
I think Tom was more suggesting the unfairness of selective application of the full faith and credit clause, rather than whether DOMA would be overturned or not. That's how I interpreted it in my reply.
posted
The question is: does Missouri have a compelling interest in sticking its nose into the mother's sex life? In this case, it isn't responsible for child welfare payments (recoverable from the father) or child welfare of any kind since the child has been adopted out to Colorado.
I'd argue that Missouri is being nosy for the sake of being obnoxious.
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posted
No, by delaying finalization, Missouri maliciously harrassed the mother until she changed her mind about the adoption.
Kinda like the US SupremeCourt stopping the recount of the Florida 2000 vote for a significant period of time, then the Gang of Five claiming that there was insufficient time to count the votes in their final decision.
Now, Missouri is trying to rip the child from the only parents that s/he knows just to prove it can be malicious whenever&however it wants.
posted
I believe that the father has to be identified so that he has the option of adopting the child, and it is in reconizition of his rights as a father....not that there seem to be many of them sometimes...unless there is a compellig reason not to award custody to him, such as abuse.
The law in MS states that he must be identified, and the adoption court was merely following the law, as it is required to do.
Also, the birth mother reserved the right to reclaim her child up to a specific point in the process, so she is within her rights...and was obviously uncertin that she wanted to give it up for adoption from the begining, hence the "waiting period".
I don't think that MS cared one way or another about the adoption, but it is bound to follow it's laws regarding the process.
posted
A sperm donor is the father now? Obviously either: The sperm donor doesn't know that the woman was pregnant and didn't care about the possibility of fathering a child. Or knows and doesn't wish to be the father.
Either way, what is Missouri's compelling interest?
posted
Well, I'd think someone taking it on themselves to irrevocably terminate parental rights, an action that is supposed to be voluntary, would take a little effort to ensure that the father actually consented.
It's unfair to impugn the parental instincts of the father when this may have been a one night stand. He's not a sperm donor - he's a FATHER.
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