Finstuen v. Crutcher

• Citation: 496 F.3d 1139
• Decision Date: 03 August 2007
• Docket Number: No. 06-6213.,No. 06-6216.,06-6213.,06-6216.
• Parties: Heather FINSTUEN; Anne Magro; S.G.F.-M., a minor; K.B.F.-M., a minor; Greg Hampel; Ed Swaya; V.N.H.-S., a minor, Lucy Doel; Jennifer Doel; E.D., a minor, Plaintiffs-Appellees, v. Dr. Mike CRUTCHER, in his official capacity as Commissioner of Health of Oklahoma, Defendant-Appellant, and Drew Edmondson, in his official capacity as Attorney General of Oklahoma; Brad Henry, in his official capacity as Governor of Oklahoma, Defendants. Greg Hampel; Ed Swaya; V.N.H.-S., a minor, Plaintiffs-Appellants, v. Dr. Mike Crutcher, in his official capacity as Commissioner of Health of Oklahoma; Drew Edmondson, in his official capacity as Attorney General of Oklahoma; Brad Henry, in his official capacity as Governor of Oklahoma, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

496 F.3d 1139

Heather FINSTUEN; Anne Magro; S.G.F.-M., a minor; K.B.F.-M., a minor; Greg Hampel; Ed Swaya; V.N.H.-S., a minor, Lucy Doel; Jennifer Doel; E.D., a minor, Plaintiffs-Appellees, v. Dr. Mike CRUTCHER, in his official capacity as Commissioner of Health of Oklahoma, Defendant-Appellant, and Drew Edmondson, in his official capacity as Attorney General of Oklahoma; Brad Henry, in his official capacity as Governor of Oklahoma, Defendants.

Greg Hampel; Ed Swaya; V.N.H.-S., a minor, Plaintiffs-Appellants, v. Dr. Mike Crutcher, in his official capacity as Commissioner of Health of Oklahoma; Drew Edmondson, in his official capacity as Attorney General of Oklahoma; Brad Henry, in his official capacity as Governor of Oklahoma, Defendants-Appellees.

No. 06-6213.

No. 06-6216.

United States Court of Appeals, Tenth Circuit.

August 3, 2007.

Martha R. Kulmacz, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Defendant-Appellant in Case No. 06-6213.

Sandy Ingraham, Ingraham & Associates, McLoud, OK (Kenneth D. Upton, Jr., and F. Brian Chase, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, with her on the briefs), for Plaintiffs-Appellees in Case No. 06-6213.

Sandy Ingraham, Ingraham & Associates, McLoud, OK (Kenneth D. Upton, Jr., and F. Brian Chase, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, with her on the briefs), for Plaintiffs-Appellants in Case No. 06-6216.

Martha R. Kulmacz, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, for Defendants-Appellees in Case No. 06-6216.

Before HARTZ, EBEL, and O'BRIEN, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Dr. Mike Crutcher, sued in his official capacity as the Commissioner of Health (hereinafter referred to as "Oklahoma State Department of Health (`OSDH')") appeals a district court judgment that a state law barring recognition of adoptions by same-sex couples already finalized in another state is unconstitutional. OSDH also appeals the district court's order requiring it to issue a revised birth certificate for E.D., a Plaintiff-Appellee who was born in Oklahoma but adopted in California by a same-sex couple. We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause. We therefore affirm the order and judgment of the district court declaring the statute unconstitutional and directing the issuance of a new birth certificate for E. D.

I.

Three same-sex couples and their adopted children have challenged the following amendment to Oklahoma's statute governing the recognition of parent-child relationships that are created by out-of-state adoptions.

§ 7502-1.4. Foreign adoptions

A. The courts of this state shall recognize a decree, judgment, or final order creating the relationship of parent and child by adoption, issued by a court or other governmental authority with appropriate jurisdiction in a foreign country or in another state or territory of the United States. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree, judgment, or final order were issued by a court of this state. Except that, this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction.

Okla. Stat. tit. 10, § 7502-1.4(A) (the "adoption amendment").

Each of the three families has a different set of circumstances. Mr. Greg Hampel and Mr. Ed Swaya are residents of Washington, where they jointly adopted child V in 2002. V was born in Oklahoma, and pursuant to an "open" adoption agreement with V's biological mother, the men agreed to bring V to Oklahoma to visit her mother "from time to time." However, they do not state any plans to move to Oklahoma or have any ongoing interactions with the state of Oklahoma. After V's adoption, Mr. Hampel and Mr. Swaya requested that OSDH issue a new birth certificate for V. OSDH did so on July 7, 2003, but named only Mr. Hampel as V's parent. Mr. Hampel and Mr. Swaya contested that action, prompting OSDH to seek an opinion from the Oklahoma attorney general as to whether it must fulfill the request to list both fathers on the birth certificate. The attorney general opined that the U.S. Constitution's Full Faith and Credit Clause required Oklahoma to recognize any validly issued out-of-state adoption decree. OSDH subsequently issued V a new birth certificate naming both men as parents. The state legislature responded one month later by enacting the adoption amendment.

Lucy Doel and Jennifer Doel live with their adopted child E in Oklahoma. E was born in Oklahoma. Lucy Doel adopted E in California in January 2002. Jennifer Doel adopted E in California six months later in a second parent adoption, a process used by step-parents to adopt the biological child of a spouse without terminating the parental rights of that spouse. OSDH issued E a supplemental birth certificate naming only Lucy Doel as her mother. The Doels have requested a revised birth certificate from OSDH that would acknowledge Jennifer Doel as E's parent, but OSDH denied the request.

Anne Magro and Heather Finstuen reside in Oklahoma with their two children. Ms. Magro gave birth to S and K in New Jersey in 1998. In 2000, Ms. Finstuen adopted S and K in New Jersey as a second parent, and New Jersey subsequently issued new birth certificates for S and K naming both women as their parents.

These three families brought suit against the state of Oklahoma seeking to enjoin enforcement of the adoption amendment, naming the governor, attorney general and commissioner of health in their official capacities. The Doels also requested a revised birth certificate naming both Lucy Doel and Jennifer Doel as E's parents.

On cross-motions for summary judgment, the district court found that Mr. Hampel, Mr. Swaya and their child V lacked standing to bring the action. The court concluded their claimed injury — refraining from future visits to Oklahoma due to a fear that the state would not recognize their parent-child relationship — was too speculative. Finstuen v. Edmondson, 497 F.Supp.2d 1295, 1303-05, 2006 WL 1445354, at *4-5 (W.D.Okla. 2006). However, the district court granted summary judgment for the remaining plaintiffs, determining that they had standing and that the Oklahoma adoption amendment violated the Constitution's Full Faith and Credit, Equal Protection and Due Process Clauses. Id. at *5, *15-16, 1305-06, 1314-15. The court enjoined enforcement of the amendment, and ordered that a new birth certificate be issued for E.D. Id. at *16, 1315. On August 29, 2006, we stayed, pending this appeal, the order to issue a revised birth certificate.

OSDH appeals from the district court's conclusion that the Doels and the Finstuen-Magro family have standing and its ruling that the adoption amendment is unconstitutional. The Oklahoma governor and attorney general did not appeal. In addition, Mr. Hampel, Mr. Swaya and their child V timely appeal from the denial of standing, and reassert their claim that the Oklahoma amendment violates their constitutional right to travel.¹

II.

A. Jurisdiction

We have statutory jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291, 1331. However, prior to reaching the merits, we must also establish whether the plaintiffs possess Article III standing, which requires that a plaintiff establish injury-in-fact, causation and redressability. Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir.2006); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.2005). "While the rules for standing are less stringent for a facial challenge to a statute, a plaintiff must still satisfy the injury-in-fact requirement." PETA v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir.2002). The injury-in-fact must be "concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is `distinct and palpable,' as opposed to merely `abstract,' and the alleged harm must be actual or imminent, not `conjectural' or `hypothetical.'" Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citations, alteration omitted).

The Supreme Court elaborated on the "imminence" requirement in Lujan v. Defenders of Wildlife: "[a]lthough `imminence' is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is `certainly impending.'" 504 U.S. 555, 564 n. 2, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation omitted). In a plea for injunctive relief, a plaintiff cannot maintain standing by asserting an injury based merely on "subjective apprehensions" that the defendant might act unlawfully. City of Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). "The emotional consequences . . . simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant." Id.

"Whether a plaintiff has standing is a legal question, which we review de novo." Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir.2006). The district court here decided the questions of standing on cross-motions for summary judgment. "On cross-motions for summary judgment, our review of the summary judgment record is de novo and we must view the inferences to be drawn from affidavits, attached exhibits and depositions in the light most favorable to the party that did not prevail." Jacklovich v. Simmons, 392 F.3d 420, 425 (10th Cir.2004). "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on...