Florida Appeals Courta State Must Honor Out of State Second Parent Adoptions | Lez Get Real

Today the Florida Court of Appeals unanimously reversed a lower court ruling and held that Florida must give full faith and credit to adoptions granted to same-sex couples by other states, holding that Lara Embry, the plaintiff in the case, “must be given the same rights as any other adoptive parent in Florida.” The court based its decision on the Full Faith and Credit Clause of the federal constitution and a Florida statute requiring Florida to honor adoption decrees from other states.

[Daniel P from Long Island]

Good decision. Good to see someone is following the U.S. Constitution.

[Rick in Kansas]

What amazes me is that a trial court judge could manage to be that wrong on the law that this case had to be reversed. It really doesn't matter what Florida's law is regarding adoptions by Lesbians and Gays, or same sex couples, the state of Washington already declared each of these women the adoptive parent of the other's biological child and the trial court judge has no authority or power to overturn that ruling. The ruling also should have included sending the bozo back to law school for refresher courses on courts of record and the US Constitution, jeez.

[StevenFL]

Watch out. The writing is on the wall. This was fought on the basis of the Full Faith and Credit Clause. Federal law trumps state law. Gay marriage will be next. This will be fought on the same basis, the Marriage Protection Amendment will get overturned, and marriage will be legalized.

Local judges are taking a stand on this. First Key West, then Miami, and now Sarasota. This thing is coming north through the state.

Tampa, Orlando, and Daytona may be next and the stakes may be higher than adoption. This case can be used as an example too.

[StevenFL]

Rick in Kansas wrote:

What amazes me is that a trial court judge could manage to be that wrong on the law that this case had to be reversed. It really doesn't matter what Florida's law is regarding adoptions by Lesbians and Gays, or same sex couples, the state of Washington already declared each of these women the adoptive parent of the other's biological child and the trial court judge has no authority or power to overturn that ruling. The ruling also should have included sending the bozo back to law school for refresher courses on courts of record and the US Constitution, jeez.

Rick, this is just setting up for something larger. It is estimated that more than 2500 gay couples have gone to other states to marry. When the state is hit with a law suit and uses this case as an example on the Full Faith and Credit Clause, then the flood gates will really open. I give it 2 years that the FMPA will be overturned and gay marriage will be legal here.

If more states to the north and west receive this, Florida will follow suit. Unfortunately, Florida is known for being a follower when it comes to state law, not the leader.

[Rick in Kansas]

StevenFL wrote:

<quoted text>
Rick, this is just setting up for something larger. It is estimated that more than 2500 gay couples have gone to other states to marry. When the state is hit with a law suit and uses this case as an example on the Full Faith and Credit Clause, then the flood gates will really open. I give it 2 years that the FMPA will be overturned and gay marriage will be legal here.
If more states to the north and west receive this, Florida will follow suit. Unfortunately, Florida is known for being a follower when it comes to state law, not the leader.

Sorry, but it simply won't fly. DOMA is the prevailing law regarding recognition of same sex marriages performed in other states and it has given states immunity from challenge on the basis of FF&C since its passage. The legal precedents are against such a case even before it is filed, as no challenge to those provisions has even made it as far as a trial. The application of FF&C in the area of adoption and child cutody on the other hand, is a matter of very settled precedents and federal law. No court in another state has the authority or right to overrule the decisions of another state. Once Washington finalized the adoption it was valid in all fifty states, regardless of their laws on the subject. The Florida couples may be able to win federal recognition of their marriages along the lines of the challenges filed in Massachusetts and Connecticut, but state recognition in a state with a constitutional amendment is another issue altogether....

[StevenFL]

Rick in Kansas wrote:

<quoted text>Sorry, but it simply won't fly. DOMA is the prevailing law regarding recognition of same sex marriages performed in other states and it has given states immunity from challenge on the basis of FF&C since its passage. The legal precedents are against such a case even before it is filed, as no challenge to those provisions has even made it as far as a trial. The application of FF&C in the area of adoption and child cutody on the other hand, is a matter of very settled precedents and federal law. No court in another state has the authority or right to overrule the decisions of another state. Once Washington finalized the adoption it was valid in all fifty states, regardless of their laws on the subject. The Florida couples may be able to win federal recognition of their marriages along the lines of the challenges filed in Massachusetts and Connecticut, but state recognition in a state with a constitutional amendment is another issue altogether....

Yet, several states that now have marriage equality had amendments struck down. The key thing is, 2010 will be eye opening. If we are able to overturn the amendment, then many things will follow suit.

[Rick in Kansas]

StevenFL wrote:

<quoted text>
Yet, several states that now have marriage equality had amendments struck down. The key thing is, 2010 will be eye opening. If we are able to overturn the amendment, then many things will follow suit.

Actually, not even one. None of the states where marriage equality was achieved through the courts was as the result of a state constitutional amendment being struck down. California passed Prop 22, but that only created a statute limiting marriage to one man and one woman; Iowa had a state version of DOMA, prohibiting marriage and recognition of marriage, but had not passed an amendment; in Connecticut and Massachusetts (as well as the cases in Vermont and New Jersey), the challenge was basically to laws written in some instances a couple of centuries ago; even New York's recognition of out state marriages was based on the fact there was no law which specifically prohibited them where there is a law currently that prohibits them in the state. We're going to continue to see success, but probably not on the scale we have in the past couple of months. We've got to await the outcome on the Prop 8 case, which may send us back to the drawing board in California and legislatures in New York and hopefully New Jersey trying to work on the idea. We did win everything but the word in Washington and are likely to see that happen in Nevada, Maryland and perhaps Oregon and Hawaii by next year. In order for a challenge to the DOMA FF&C immunity to be successful, a federal interest in the provisions survival has to be established. This means that the right has to exist for a significant percentage of us but denied to others, save for this law, that the courts have to resolve the issue and we haven't achieved that yet. Remember, Loving wasn't taken up until only a handful of states had anti-miscegenation laws still in place and the real difference between Bowers and Lawrence was that a few more states had dropped their consensual sodomy statutes and there were only 13 left. Personally, I think it will take achieving marriage equality in most, if not all, of the states which have not amended us out altogether for a challenge to be heard. We'll have done about all we can, save for DOMA and that roadblock's continued validity would have to be examined.

[Reason]

Rick in Kansas wrote:

<quoted text>Sorry, but it simply won't fly. DOMA is the prevailing law regarding recognition of same sex marriages performed in other states and it has given states immunity from challenge on the basis of FF&C since its passage. The legal precedents are against such a case even before it is filed, as no challenge to those provisions has even made it as far as a trial. The application of FF&C in the area of adoption and child cutody on the other hand, is a matter of very settled precedents and federal law. No court in another state has the authority or right to overrule the decisions of another state. Once Washington finalized the adoption it was valid in all fifty states, regardless of their laws on the subject. The Florida couples may be able to win federal recognition of their marriages along the lines of the challenges filed in Massachusetts and Connecticut, but state recognition in a state with a constitutional amendment is another issue altogether....

But DOMA is unconstitutional (federal constitution)! Therefore it falls first, then any state constitutional amendments fall.

[Reason]

Oops! Should have said:

But DOMA is unconstitutional (federal constitution)! Therefore it falls first, then any state constitutional amendments fall due to FF&C.

[Rick in Kansas]

Reason wrote:

<quoted text>
But DOMA is unconstitutional (federal constitution)! Therefore it falls first, then any state constitutional amendments fall.

The provisions which prohibit federal recognition of marriages sanctioned by the states, absolutely. The challenges filed in Massachusetts and Connecticut will take care of those. The provisions which give states FF&C immunity are another issue altogether. FF&C comes with an out clause granting Congress the authority to pass laws which "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof". This is why all of the previous challenges to DOMA on FF&C grounds have failed, miserably. Even before the cases have gotten anywhere near trial, the ruling has been that there exists no grounds on which to sue. Simply put, Congress had the authority to grant immunity to the states through DOMA. It cannot be challenged on the grounds that it was a violation of our FF&C rights, but how it can be challenged, at some point, is that its continued enforcement has become a violation of our right to equal protection. To raise such a challenge we will need to do all we can in those states where we have not been amended out of the courts to where we have essentially achieved an equal right to marriage, save those states where DOMA is now keeping us from full equal protection.