Finstuen v. Crutcher

F IL E D
United States Court of Appeals
Tenth Circuit

August 3, 2007
PU BL ISH
Elisabeth A. Shumaker
U N IT E D ST A T E S C O U R T O F A P PE A L S Clerk of Court

T E N T H C IR C U IT

H EA TH ER FIN STU EN ; A N N E
M AGRO; S.G.F.-M ., a minor; K.B.F.-
M ., a minor; GR EG H AM PEL; ED
SW AYA ; V.N.H.-S., a minor, LUCY
DOEL; JENNIFER DOEL; E.D., a
minor,

Plaintiffs-Appellees,

v. No. 06-6213

DR. M IKE CRUTCHER, in his
official capacity as Commissioner of
Health of Oklahoma,

Defendant-Appellant,

and

DREW EDM ONDSO N, in his official
capacity as Attorney General of
Oklahoma; BRAD HENRY, in his
official capacity as Governor of
Oklahoma,

Defendants.

G REG HA MPEL; ED SWA Y A ;
V.N.H.-S., a minor,
No. 06-6216
Plaintiffs-Appellants,
 v.

DR. M IK E CRUTCHER, in his
official capacity as Commissioner of
Health of Oklahoma; DR EW
EDM ONDSON, in his official capacity
as Attorney General of Oklahoma;
BRAD HENRY, in his official
capacity as Governor of Oklahoma,

Defendants-Appellees.

A ppeal from the U nited States D istrict C ourt
for the W estern D istrict of O klahom a
(D .C . N o. C IV -04-1152-C )

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

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

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

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

Before H A R T Z, E B E L , and O ’B R IE N , Circuit Judges.

2
E B E L, Circuit Judge.

Defendant-Appellant Dr. M ike Crutcher, sued in his official capacity as the

Commissioner of Health (hereinafter referred to as “Oklahoma State Department

of Health (‘OSD H’)”) 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. W e 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. W e

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

3
 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 w ere 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. M r. Greg

Hampel and M r. Ed Swaya are residents of W ashington, 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.” H owever, they do not state

any plans to move to Oklahoma or have any ongoing interactions with the state of

O klahom a. A fter V ’s adoption, M r. Hampel and M r. Swaya requested that OSD H

issue a new birth certificate for V. OSDH did so on July 7, 2003, but named only

M r. Hampel as V’s parent. M r. Hampel and M r. Sw aya 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.

4
The state legislature responded one month later by enacting the adoption

amendment.

Lucy Doel and Jennifer D oel 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. OSD H issued E a

supplemental birth certificate naming only Lucy Doel as her mother. The Doels

have requested a revised birth certificate from OSD H that would acknowledge

Jennifer D oel as E’s parent, but OSDH denied the request.

A nne M agro and H eather Finstuen reside in Oklahoma with their two

children. M s. M agro gave birth to S and K in N ew Jersey in 1998. In 2000, M s.

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 D oels also

requested a revised birth certificate naming both Lucy Doel and Jennifer Doel as

E’s parents.

5
 On cross-motions for summary judgment, the district court found that M r.

Hampel, M r. Sw aya 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, No. CIV-04-1152-C, 2006 W L

1445354, at *4-5 (W .D. Okla. M ay 19, 2006). However, the district court granted

summary judgment for the remaining plaintiffs, determining that they had

standing and that the O klahoma adoption amendment violated the C onstitution’s

Full Faith and Credit, Equal Protection and Due Process Clauses. Id. at *5, 15-

16. The court enjoined enforcement of the amendment, and ordered that a new

birth certificate be issued for E. D. Id. at *16. On August 29, 2006, we stayed,

pending this appeal, the order to issue a revised birth certificate.

OSD H appeals from the district court’s conclusion that the Doels and the

Finstuen-M agro family have standing and its ruling that the adoption amendment

is unconstitutional. The Oklahoma governor and attorney general did not appeal.

In addition, M r. Hampel, M r. Sw aya 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

1
OSDH claims that the Hampel-Swaya plaintiffs w ere not timely in their
appeal. However, the Hampel-Swaya plaintiffs qualify as an “other party”
(continued...)

6
 II.

A. Jurisdiction

W e have statutory jurisdiction over this appeal pursuant to 28 U.S.C. §§

1291, 1331. How ever, 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. W att, 454 F.3d

1154, 1157 (10th Cir. 2006); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154

(10th Cir. 2005). “W hile 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

1
(...continued)
pursuant to Fed. R. App. P. 4(a)(3), which states, “If one party timely files a
notice of appeal, any other party may file a notice of appeal within 14 days after
the date when the first notice was filed . . . .” See Smith v. Vigortone Ag Prods.,
Inc., No. 91-3351, 1992 U.S. App. LEXIS 28567, at *3 (10th Cir. Oct. 22, 1992)
(unpublished); Crystal Palace Gambling Hall, Inc. v. M ark Twain Indus., Inc.,
817 F.2d 1361, 1364 (9th Cir. 1987); 20 James W m. M oore et al., M oore’s
Federal Practice ¶ 304.11[3][a] (3d ed. 1999). Therefore, the Hampel-Swaya
plaintiffs’ notice of appeal, which was filed on June 26, 2006, was timely because
it was filed within 14 days of OSD H’s notice of appeal on June 16, 2006.

7
‘conjectural’ or ‘hypothetical.’” W hitmore v. Arkansas, 495 U.S. 149, 155 (1990)

(citations, alteration omitted).

The Supreme Court elaborated on the “imminence” requirement in Lujan v.

Defenders of W ildlife: “[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 (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 (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.

“W hether 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. “O n cross-motions for sum mary 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

8
to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.’” Id. at 426 (quoting Fed. R. Civ.

P. 56(c)). “Unsupported conclusory allegations, however, do not create an issue

of fact.” M acKenzie v. Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); see also

Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (same).

W e agree with the district court that the Hampel-Sw aya family lacks an

injury sufficiently immediate to establish standing. M r. Hampel and M r. Swaya

argue that they are obligated under the open adoption agreement with V’s mother

to bring V to Oklahoma, and have refrained from this travel because of a fear that

something will happen during their visit that could require Oklahoma agencies to

consider the legality of their parent-child relationship. They contend that the

potential harm from a failure to recognize M r. Hampel and M r. Swaya as V’s

parents infringes on their constitutional right to travel. See Saenz v. Roe, 526

U.S. 489, 500 (1999) (referring to the right to travel as “the right of a citizen of

one State to enter and to leave another State, the right to be treated as a welcome

visitor rather than an unfriendly alien when temporarily present in the second

State, and, for those travelers who elect to become permanent residents, the right

to be treated like other citizens of that State.”).

9
 However, the Hampel-Sw aya plaintiffs do not establish the circumstances

in which the non-recognition of the adoption would arise. Oklahoma has already

issued a revised birth certificate for V, and the Hampel-Sw aya family does not

claim that it is seeking additional benefits from the state. Ordinary travel

generally does not require a state to examine the legitimacy of an asserted parent-

child relationship. Although a medical em ergency might create a scenario in

which parental consent is required, such a situation is merely hypothetical, as

opposed to an actual or impending contact with Oklahoma authorities that could

jeopardize the rights of any member of the Hampel-Sw aya family. Such

guesswork invokes Lyons’ admonition that “[i]t is the reality of the threat of

repeated injury that is relevant to the standing inquiry, not the plaintiff's

subjective apprehensions.” 461 U.S. at 107 n.8. The H ampel-Swaya family’s

alleged injuries are simply too speculative to support Article III’s injury-in-fact

requirement for standing.

The Finstuen-M agro family, though residing in Oklahoma, similarly fails to

satisfy the injury-in-fact requirement for standing. M s. M agro is the biological

mother of children S and K. Therefore, her parental rights cannot be jeopardized

by the Oklahoma amendment, and S’s and K’s rights that flow from that

relationship are not threatened. M s. Finstuen states that she fears having her

parent-child relationship invalidated, and this fear causes her to avoid signing

10
forms and papers – such as school permission slips or medical releases – that

could trigger a question about her legitimacy as a parent. She also states that S

and K are fearful due to her uncertain parental status, and that they have become

more “clingy” and are “increasingly concerned about when and whether she will

come home.”

But M s. Finstuen recites no encounter with any public or private official in

which her authority as a parent was questioned. M ost importantly, she has not

established that the amendment creates an actual, imminent threat to her rights as

a parent or the rights of her adopted children, because she is not presently seeking

to enforce any particular right before O klahoma authorities. The Finstuen-M agro

plaintiffs, therefore, also fail to state a sufficient injury to confer standing under

Article III for this suit. 2

In contrast, the district court correctly held that the Doels have standing

under Article III. OSD H has refused to revise E’s birth certificate to add Jennifer

Doel’s name as a parent, and thus both Jennifer and E state an injury-in-fact. In

addition, Jennifer and Lucy Doel recount an encounter with medical emergency

2
The district court erroneously directed OSDH to issue new birth
certificates for the M agro-Finstuen plaintiffs. How ever, the children of M s.
M agro and M s. Finstuen were born in New Jersey, and these plaintiffs do not
claim they are entitled to birth certificates for O klahoma-born children.
Therefore, we reverse the district court’s order to the extent it directs issuance of
new birth certificates for the M agro-Finstuen plaintiffs.

11
staff in which they were told by both an ambulance crew and emergency room

personnel that only “the mother” could accompany E and thus initially faced a

barrier to being with their child in a medical emergency. This incident too

constitutes a concrete, particularized injury.

In addition to stating an injury-in-fact, the Doels must meet the causation

and redressability prongs of Article III standing. “[T]here must be a causal

connection between that injury and the challenged action of the defendant -- the

injury must be ‘fairly traceable’ to the defendant. . . it must be likely, not merely

speculative, that a favorable judgment will redress the plaintiff's injury.” Nova

Health Sys, 416 F.3d at 1154. OSDH argues that the Doels sought a birth

certificate for E just before the legislature enacted the adoption amendment, and

that OSD H denied the request because of a separate statutory requirement that

only the name of E’s father be placed in the “father” designation on a birth

certificate. Under OSD H’s theory, the Doels would lack standing, because the

adoption amendment did not cause the state to issue a one-parent, rather than a

two-parent, birth certificate. 3

3
OSD H did not raise this argument before the district court. “[T]he
general rule [is] that an appellate court will not consider an issue raised for the
first time on appeal . . . .” Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th
Cir. 1991). However, jurisdictional issues are among the exceptional questions
that we will hear even though they were not raised below. Rademacher v. Colo.
Ass’n of Soil Conservation Dists. M ed. Benefit Plan, 11 F.3d 1567, 1571-72 (10th
(continued...)

12
 W e are not persuaded that OSDH’s rationale for denying a new birth

certificate was unrelated to the adoption amendment. As an initial matter, we do

not assume for the purposes of standing analysis that OSD H’s stated reason for

denying the birth certificate was the only cause – or even an actual cause – of

OSDH’s action, particularly given that the statute governing the identity of fathers

on birth certificates appears to apply to live births rather than supplemental

adoptive birth certificates. 4 Indeed, when the Oklahoma attorney general opined in

M arch 2004 that the Full Faith and Credit Clause required OSD H to issue a new

birth certificate to same-sex adoptive parents who adopt an Oklahoma-born child,

that opinion referred to the statute governing supplemental, rather than original,

birth certificates. M oreover, correspondence in the record on appeal indicates that

3
(...continued)
Cir. 1993). To the extent OSDH’s new arguments implicate our Article III
jurisdiction, we will therefore address them. However, OSD H has waived the
opportunity to present these belated explanations as a defense on the merits of the
Doels’ allegations.
4
The statute cited by OSDH as the basis for denying E. D.’s birth
certificate governs the initial birth certificate issued “within seven (7) days after
the birth” for “each live birth which occurs in this state.” Okla. Stat. tit. 63, § 1-
311(A ). Thus, it appears to be wholly inapplicable to the supplementary birth
certificates that must be issued to adoptive parents under O kla. Stat. tit. 10, §
7505-6.6(B) and Okla. Stat. tit. 63, § 1-316(A). Even if Section 1-311 could be
deemed to apply to adoptive parents, it requires that the father’s name be listed on
the birth certificate only “[i]f the mother was married at the time of conception
and birth.” Okla. Stat. tit. 63, § 1-311(D)(1). Nothing in the record indicates that
either of the Doel mothers were “married at the time of conception and birth,” and
so it is unclear why the Department would have applied this statute to Jennifer
Doel’s request for a new birth certificate for E.

13
OSD H received and denied Jennifer Doel’s initial request while OSD H was

waiting for the attorney general’s opinion as to whether it must issue new birth

certificates for same-sex parent adoptions. The Doels responded by renewing their

request two months after the legislature enacted the adoption amendment, and

OSDH again denied the request. The Doels then wrote O SDH through counsel to

explain the validity of Jennifer Doel’s request to be listed on E’s birth certificate,

but apparently to no avail.

Nothing in the record refutes the Doels’ claim that the adoption amendment

is the reason why OSDH has not yet issued a new birth certificate for E. To the

contrary, the record before us strongly suggests that the amendment was the reason

for the denial. OSD H’s argument that a separate statute bars issuance of a new

birth certificate is undermined by the clear language of the statute itself. Instead,

by asserting that OSDH had an entirely different reason for denying the D oels’

birth certificate request, OSD H attempts to insert a new “fact” in its appeal from

summary judgment. “Unsupported conclusory allegations . . . do not create an

issue of fact.” M acKenzie, 414 F.3d at 1273. 5 W e therefore conclude that the

5
This conclusion is consistent with our review of motions for sum mary
judgment. We have said “[w]e will disregard a contrary affidavit . . . when it
‘constitutes an attempt to create a sham fact issue.’” B urns v. Bd. of County
Comm’rs, 330 F.3d 1275, 1282 (10th Cir. 2003) (quoting Franks v. Nimmo, 796
F.2d 1230, 1237 (10th Cir. 1986)). One of the factors in deciding whether a party
is trying to create a “sham” factual issue is “whether the affiant had access to the
(continued...)

14
Doels’ stated injury is “fairly traceable to the defendant,” and that a judgment

invalidating the adoption amendment and ordering a new birth certificate w ill

make it “likely, not merely speculative, that a favorable judgment will redress the

plaintiff's injury.” Nova Health Sys, 416 F.3d at 1154 (quotation omitted).

M oreover, the Doels brought an equal protection claim claiming that

Jennifer and Lucy Doel were injured when they were told that only “the mother”

could accompany child E in a medical emergency. In equal protection claims, “the

injury is the imposition of the barrier itself.” Buchwald v. Univ. of N.M . Sch. of

M ed., 159 F.3d 487, 493 (10th Cir. 1998). W e have not decided this appeal on

equal protection grounds, but that is irrelevant for purposes of our standing

analysis. “W e do not address the merits of plaintiff’s claims in our determination

of standing.” Id.; see also Initiative & Referendum Inst. v. W alker, 450 F.3d

5
(...continued)
pertinent evidence at the time of his earlier testimony or whether the affidavit was
based on newly discovered evidence.” Id. (quotation omitted). “[T]he utility of
summary judgment as a procedure for screening out sham fact issues would be
greatly undermined if a party could create an issue of fact merely by submitting
an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237.
In this case, OSD H produced no evidence below as to why it denied the
Doels’ their birth certificate, and so we have no occasion to compare conflicting
affidavits or documents. Nonetheless, OSDH’s evidence presented for the first
time on appeal that it relied on another statute to deny the Doels’ their requested
certificate is an “attempt to create a sham fact issue,” Burns, 330 F.3d at 1282
(quotation omitted). OSD H presumably “had access to the pertinent evidence at
the time” of the earlier proceedings, and OSDH does not argue that its position is
based on “newly discovered evidence.” Id. (quotation omitted).

15
1082, 1085, 1088 (10th Cir. 2006) (en banc) (in holding that the plaintiffs had

standing in a First Amendment case that alleged they were injured by the “chilling

effect” of a provision of the Utah Constitution, “[f]or purposes of the standing

inquiry, the question is not whether the alleged injury rises to the level of a

constitutional violation.”). It is clear that the adoption amendment is the

codification of a general policy not to recognize the parent-child relationship of

same-sex parents, and the Doels have stated that this policy caused their injury.

Thus, the Doels have standing under Article III to claim that the Oklahoma

adoption amendment is unconstitutional and to request a revised birth certificate

for E naming Jennifer D oel as a parent.

OSD H also argues, for the first time on appeal, that the Doels lack

prudential standing. “The standing inquiry requires us to consider both

constitutional limits on federal-court jurisdiction and prudential limitations on its

exercise.” Bd. of County Comm’rs v. Geringer, 297 F.3d 1108, 1111 (10th Cir.

2002) (quotations omitted). Prudential standing requires, among other things, that

“a plaintiff’s grievance . . . arguably fall[s] within the zone of interests protected

or regulated by the statutory provision . . . invoked in the suit.” Id. at 1112

(quotation omitted).

Prudential standing is not jurisdictional in the same sense as Article III

standing. See, e.g., id. at 1112 (observing that, unlike Article III standing,

16
prudential standing is a “judicially-created set of principles”); Grubbs v. Bailes,

445 F.3d 1275, 1280-81 (10th Cir. 2006) (adhering to the strict requirements of

Article III but declining to “definitively resolve” plaintiff’s prudential standing).

Instead, “[q]uestions relating to prudential standing . . . may be pretermitted in

favor of a straightforward disposition on the merits.” Id., 445 F.3d at 1281. W e

could therefore decline to address this argument, as it was not raised in the court

below. See Shell Rocky M ountain Prod., LLC v. Ultra Res., Inc., 415 F.3d 1158,

1164 (10th Cir. 2005) (“As a general rule, we do not review matters raised for the

first time on appeal.”). However, to the extent OSDH attempts to bootstrap its

prudential standing argument into a mootness question, which is jurisdictional, w e

must address whether the adoption amendment applies to the Doels. See Building

& Constr. Dep’t v. Rockwell Int’l Corp., 7 F.3d 1487, 1491 (10th Cir. 1993)

(“Constitutional mootness doctrine is grounded in the Article III requirement that

federal courts only decide actual, ongoing cases or controversies.” (quotation

omitted)).

OSDH argues that the adoption amendment applies only to an adoption by a

same-sex couple that occurs in a single proceeding. Under OSD H’s litigating

interpretation, the phrasing of “an adoption” in the singular under O kla. Stat. tit.

10, § 7502-1.4(A) (“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

17
other state or foreign jurisdiction”) means the statute does not apply to a child who

is adopted by one person in a same-sex couple and then, in another proceeding, by

the second person in the couple. OSD H thus argues that the amendment does not

apply to the Doels because they utilized such a second parent adoption procedure.

W hen we are called upon to interpret state law, we “must look to rulings of

the highest state court, and if no such rulings exist, must endeavor to predict how

the high court would rule.” Lovell v. State Farm M ut. Auto. Ins. Co., 466 F.3d

893, 899 (10th Cir. 2006). The adoption amendment has not been interpreted by

O klahom a courts in any published case. Therefore, “[w]e interpret state laws

according to state rules of statutory construction.” Ward v. Utah, 398 F.3d 1239,

1248 (10th Cir. 2005). Oklahoma courts construe statutes according to the

legislative intent as expressed in both the language and purpose of the statute:

In determining whether a statute applies to a given set of facts, we focus
on legislative intent w hich controls statutory interpretation. Intent is
ascertained from the whole act in light of its general purpose and
objective considering relevant provisions together to give full force and
effect to each. The Court presumes that the Legislature expressed its
intent and that it intended w hat it expressed. Statutes are interpreted to
attain that purpose and end championing the broad public policy
purposes underlying them. Only where the legislative intent cannot be
ascertained from the statutory language, i.e. in cases of ambiguity or
conflict, are rules of statutory construction employed.

Keating v. Edmondson, 37 P.3d 882, 886 (Okla. 2001) (footnotes omitted). “[T]he

cardinal rule is to begin with consideration of the language used.” Haney v.

Oklahoma, 850 P.2d 1087, 1089 (Okla. 1993). “The words, phrases and sentences

18
of a statute are to be understood as used, not in any abstract sense. W ords used in

a part of a statute must be interpreted in light of their context and understood in a

sense which best harmonizes with all other parts of the statute.” In re Estate of

M ae Little B ear, 909 P.2d 42, 50 (O kla. 1995) (citations omitted). The public

policy codified by the adoption amendment was plainly meant to prevent

recognition of adoptions by same-sex couples 6 , and we discern nothing from the

statutory language or legislative history indicating that the legislature intended to

exclude adoptions of a child by a same-sex couple that take place in more than one

proceeding. The plain language of the statute bars recognition of the legal act of

adoption generally, as opposed to merely barring the recognition of a subcategory

6
Oklahoma lacks a rigorous record of legislative history documenting the
impetus and rationale for the adoption amendment. However, the Oklahoma
House of Representatives published a media release statement on the date of the
amendment’s passage stating that under the bill “[o]ut-of-state adoptions by
homosexual couples would not be recognized in Oklahoma.” See Republican
Legislators Applaud Passage of Bill to Prevent State Recognition of Same-Sex
Adoptions, Okla. House of Reps. M edia Div., April 26, 2004, available at
http://www.lsb.state.ok.us/house/news6772.html, last viewed July 31, 2007. The
press release states that the legislation was designed to reverse the attorney
general’s opinion that the state was “obligated to recognize out-of-state adoptive
parent/child relationships.” Id. The bill “would specifically prohibit the issuance
of an Oklahoma birth certificate to parents who are of the same sex.” Id. In the
press release, Rep. Thad Balkman summarized the amendment as “protect[ing]
children from being targeted for adoption by gay couples.” Id. He also is quoted
as stating, “I believe children are better off with two parents – a mother and a
father – not two fathers or two mothers.” Id.
In district court proceedings, OSD H conceded that the adoption amendment
“provide[s] a clear legislative expression of Oklahoma’s public policy contrary to
adoptions by same sex couples.”

19
of adoption proceedings involving both parents in a single proceeding. Elsewhere

in the Oklahoma adoption code, the legislature refers to a “proceeding” rather than

the more general word of “adoption” w hen it intends to set forth rules for a

particular adoption proceeding. See, e.g., Okla. Stat. tit. 10, §§ 7502-1.1

(describing state courts’ jurisdiction over adoption proceedings), 7502-1.2

(describing the proper venue for adoption proceedings), 7502-1.3(B)

(distinguishing between a “permanent relinquishment of a child for adoption” and

the “proceedings” recognizing that relinquishment). The legislature surely would

have used a more specific phrase than “an adoption” if it had intended the statute

to refer only to a single adoption proceeding involving both adoptive parents in a

same-sex couple. Cf. Jama v. Immigration & Customs Enforcement, 543 U.S. 335,

341 (2005) (noting the Court’s “reluctance” to assume that Congress intended a

specific meaning in a statute “when Congress has shown elsewhere in the same

statute that it knows how to make such a requirement manifest”).

There is absolutely nothing in the record suggesting that the Oklahoma

legislature would find same-sex adoptions more acceptable if they occurred one

parent at a time, rather than by both parents at the same time. Indeed, OSDH’s

position in litigation is discredited by an Oklahoma case interpreting the statute

governing eligibility to adopt a child in Oklahoma. The state court of civil appeals

held that the statute, Okla. Stat. tit. 10, § 7503-1.1, categorically denies unmarried

20
couples eligibility to adopt a child, even though it permits single individuals to

adopt. In re Adoption of M .C.D., 42 P.3d 873, 878, 881-82 (Okla. Civ. App.

2001). It was irrelevant for purposes of determining eligibility that the individuals

in the unmarried couple had filed separate petitions to adopt the child in question.

The court specifically concluded that permitting two unmarried people to

categorize themselves as “single individuals” in order to adopt would be contrary

to legislative intent. Id. at 881-82 & n.6. It seems highly unlikely that the

Oklahoma legislature intended the adoption amendment at issue here to depart

from that policy. OSD H has provided no authority to support its interpretation

advanced only in litigation. Accordingly, we cannot conclude here that the statute

does not apply to sequential adoptions by same-sex couples. 7 Thus, OSDH’s

argument that the Doels lack prudential standing fails.

In addition, we must address whether OSD H’s position on the adoption

am endm ent’s applicability renders the case moot. At oral argument, OSDH

“conceded” that the adoption amendment does not apply to the Doels for the

reasons stated above. The question is w hether O SDH’s concession means that it

has “ceased its offending conduct” in a way that would moot the appeal. Adarand

7
W e observe, of course, that we “lack jurisdiction authoritatively to
construe state legislation,” United States v. Thirty-Seven (37) Photographs, 402
U.S. 363, 369 (1971), and as such our interpretation does not bind Oklahoma
courts.

21
Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000). 8 “[T]he Supreme Court has

said that a case properly brought in the first instance only becomes moot where

‘interim relief or events have completely and irrevocably eradicated the effects of

the alleged violation.’” B uilding & Constr. Dep't, 7 F.3d at 1491 (quoting County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The burden of

demonstrating mootness is a heavy one,” County of Los Angeles, 440 U.S. at 631

(quotation omitted), and it “lies with the party asserting mootness,” Adarand

Constructors, 528 U.S. at 222 (quotation, emphasis omitted).

An authoritative promise that the state of Oklahoma w ill not apply the

adoption amendment to sequential adoptions theoretically could moot OSDH’s

appeal. However, OSD H’s “concession” cannot be construed as such a promise,

because it has not demonstrated the authority to act on behalf of the state in doing

8
OSDH raises this issue in the context of Article III standing. It seems that
an argument based on a state agency’s construction of a statute made only in the
context of adversarial litigation asks us to “confuse[] mootness with standing,”
Adarand Constructors, 528 U.S. at 221 (quotation omitted). In Adarand
Constructors, w hen a government agency decided during litigation to grant a
petitioner relief that, if provided prior to litigation, would have denied him
standing, the Court held it was an issue of mootness on the appeal, not
jurisdictional standing. Id. at 221-22; see also Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-92 (2000) (detailing the
distinctions between standing and mootness, specifically that the defendant rather
than plaintiff has the burden of proving mootness).
Therefore, the question of whether OSD H’s new statutory interpretation
affects our jurisdiction is squarely a question of whether OSDH has mooted its
own appeal.

22
so. The adoption amendment is universal in that it binds the “state, any of its

agencies, [and] any court of this state.” Okla. Stat. tit. 10, § 7502-1.4(A ). Dr.

Crutcher, as Commissioner of Health and head of OSD H, does not argue that he

has inherent authority to interpret adoption statutes on behalf of the state, nor even

the authority to bind his successors at OSD H. 9 Adoption statutes – including the

one at issue here – determine rights and responsibilities involving medical consent

and educational decisions, the right to bring a wrongful death suit, the right to

seek child support, the right to inherit, and other critical rights. Dr. Crutcher’s

statutory responsibilities as Commissioner of Health do not include the legal

authority to determine the legitimacy of parent-child relationships under these

statutes. 1 0 M oreover, the adoption amendment expressly applies to the judiciary as

well as the executive branch of the Oklahoma government.

9
“Th[e] contemporaneous construction of the executive officers charged
with administering the provisions of the [act] is entitled to great respect by the
courts, although it is, of course, not controlling.” Estate of M ae Little Bear, 909
P.2d at 50. But the legislature did not direct the Commissioner of Health to
assume any unique administrative responsibilities with respect to the amendment.
10
The statutory responsibilities of the Commissioner of Health include:
“general supervision of the health of the citizens of the state;” Okla. Stat. tit. 63,
§ 1-106(B)(1); public health and safety investigations, id.; prevention, control and
suppression of the spread of infectious diseases, id.; and administration of the
statewide system of vital statistics, id., § 1-304. In addition, OSDH includes a
number of statutorily-created offices, such as the O ffice of Child A buse
Prevention, that engage in statewide planning and monitoring of local programs.
See id., § 1-227. None of these authorities encompass an administrative ability to
determine the legal parents of an adopted child.

23
 Furthermore, to permit an executive agency to moot an appeal by virtue of a

statutory interpretation advanced only in the context of adversarial litigation,

rather than a rule-making or other appropriate mechanism authorized by the

legislature, would violate the Oklahoma Constitution’s provision for separation of

powers. See Okla. Const. § IV-1 (“The powers of the government of the State of

Oklahoma shall be divided into three separate departments: The Legislative,

Executive, and Judicial; . . . [these] departments of government shall be separate

and distinct, and neither shall exercise the powers properly belonging to either of

the others.”). “The judicial branch is tasked with the responsibility of interpreting

the policy as enacted into our statutory structure and ensuring those statutes

conform to state and federal constitutional requirements.” Fields v. Driesel, 941

P.2d 1000, 1008 (Okla. Crim. App. 1997); see also Volksw agenwerk

Aktiengesellschaft v. Fed. M aritime Comm’n, 390 U.S. 261, 272 (1968) (“[c]ourts

are the final authorities on issues of statutory construction.”). As such, permitting

a so-called concession of statutory interpretation, such as the one offered here, to

moot a case would usurp the judiciary’s power to resolve what the adoption

am endm ent means as a matter of law. 1 1

11
In addition, Dr. Crutcher’s “concession” arguably violates separation of
powers by encroaching on the legislature’s ability to enact law s furthering its
policy decisions, given our conclusion above that the adoption amendment is
intended to apply to all out-of-state adoptions by same-sex couples.

24
 OSD H also has offered the Doels no relief that would moot the case. The

Doels still have no revised birth certificate, nor do they have any enforceable

assurance that OSDH will not apply the adoption amendment to them in the future.

This is not a situation in which “interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation.” Building & Constr.

Dep’t, 7 F.3d at 1491 (quotation omitted).

Finally, the odd posture of the appeal – in which the Commissioner of

Health, but not the G overnor or A ttorney General, has appealed the district court’s

declaratory judgment and injunction – does not render the appeal moot. Dr.

Crutcher as Commissioner of Health was an appropriately-named defendant.

“Under Ex parte Young, the state officer against whom a suit is brought ‘must

have some connection with the enforcement of the act’ that is in continued

violation of federal law. So long as there is such a connection, it is not necessary

that the officer's enforcement duties be noted in the act.” Dairy M art Convenience

Stores, Inc. v. Nickel, 411 F.3d 367, 372-73 (2d Cir. 2005) (citing Ex Parte

Young, 209 U.S. 123, 154, 157 (1908)). Dr. Crutcher, in his official capacity as

Commissioner of Health, is the named defendant most directly responsible for the

birth certificate that the Doels have requested and that is the subject of a stayed

district court order. Nothing in Ex Parte Young requires that any appeal of a lower

court’s judgment involve all named state defendants. In this situation, the

25
Commissioner of Health may have interests as a state officer that are independent

of the other parties, because he is appointed by the Board of Health, not the

Governor, and serves at the Board’s pleasure. Okla. Stat. tit. 63, § 1-106(A). W e

are satisfied that D r. C rutcher, as Commissioner of Health and head of OSDH,

enjoys unique authorities and responsibilities to enable him to appeal

independently from the Governor or Attorney General. Therefore, this appeal is

not moot.

B. Full Faith and Credit Clause

Having established jurisdiction, we proceed to consider the merits of

OSD H’s appeal. The district court concluded that the adoption amendment was

unconstitutional because the Full Faith and Credit Clause requires O klahoma to

recognize adoptions – including same-sex couples’ adoptions – that are validly

decreed in other states. “W e review challenges to the constitutionality of a statute

de novo.” Powers v. Harris, 379 F.3d 1208, 1214 (10th Cir. 2004) (quotation

omitted). W e affirm, because there is “no roving ‘public policy exception’ to the

full faith and credit due judgments,” Baker ex rel. Thomas v. Gen. M otors Corp.

522 U.S. 222, 233 (1998), and OSDH presents no relevant legal argument as to

why the Doels’ out-of-state adoption judgments should not be recognized under

the Full Faith and Credit Clause.

26
 The Constitution states that “Full Faith and Credit shall be given in each

State to the public Acts, Records, and judicial Proceedings of every other State.”

U.S. Const. art. 4, § 1. The Supreme Court has often explained the purpose and

policies behind the Full Faith and Credit Clause.

The very purpose of the full faith and credit clause was to alter the status
of the several states as independent foreign sovereignties, each free to
ignore obligations created under the laws or by the judicial proceedings
of the others, and to make them integral parts of a single nation
throughout which a remedy upon a just obligation might be demanded as
of right, irrespective of the state of its origin.

M ilwaukee County v. M . E. W hite Co., 296 U .S. 268, 276-77 (1935). The Clause

is designed “to preserve rights acquired or confirmed under the public acts and

judicial proceedings of one state by requiring recognition of their validity in other

states.” Pac. Employers Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 501

(1939). The Clause “is one of the provisions incorporated into the Constitution by

its framers for the purpose of transforming an aggregation of independent,

sovereign States into a nation. If in its application local policy must at times be

required to give way, such is part of the price of our federal system.” Sherrer v.

Sherrer, 334 U.S. 343, 355 (1948) (quotation, footnote omitted). “To vest the

power of determining the extraterritorial effect of a State's own laws and

judgments in the State itself risks the very kind of parochial entrenchment on the

interests of other States that it was the purpose of the Full Faith and Credit Clause

27
and other provisions of Art. IV of the Constitution to prevent.” Thomas v. W ash.

Gas Light Co., 448 U.S. 261, 272 (1980).

In applying the Full Faith and Credit Clause, the Supreme Court has drawn a

distinction between statutes and judgments. Baker, 522 U.S. at 232-33.

Specifically, the Court has been clear that although the Full Faith and Credit

Clause applies unequivocally to the judgments 1 2 of sister states, it applies with less

force to their statutory laws. Id.; see also Nevada v. Hall, 440 U.S. 410, 421-22

(1979) (holding that California was not required to apply Nevada’s statutory cap

on monetary damages in tort actions against the state when the accident involving

a state employee occurred in California); Pac. Employers Ins. Co., 306 U.S. at 497,

502-05 (concluding that California courts could apply California rather than

M assachusetts law in a worker’s compensation action, even though the employee

injured in California was usually stationed in M assachusetts).

However, with respect to final judgments entered in a sister state, it is clear

there is no “public policy” exception to the Full Faith and Credit Clause:

Regarding judgments . . . the full faith and credit obligation is exacting.
A final judgment in one State, if rendered by a court with adjudicatory

12
Despite the fact that courts may use different words, such as “decree” or
“order,” to refer to final adoption decisions, it is clear that all such decisions are
“judgments” under the common definition of the term as a “court's final
determination of the rights and obligations of the parties in a case. The term
judgment includes an equitable decree and any order from which an appeal lies.”
Black’s Law Dictionary (8th ed. 2004) (citing Fed. R. Civ. P. 54).

28
 authority over the subject matter and persons governed by the judgment,
qualifies for recognition throughout the land. For claim and issue
preclusion (res judicata) purposes, in other w ords, the judgment of the
rendering State gains nationwide force. . . .

A court may be guided by the forum State’s ‘public policy’ in
determining the law applicable to a controversy. But our decisions
support no roving ‘public policy exception’ to the full faith and credit
due judgments.

Baker, 522 U.S. at 232-33 (citations, footnotes omitted); see also Franchise Tax

Bd. v. Hyatt, 538 U.S. 488, 494 (2003) (reiterating the command of Baker).

In numerous cases th[e] [Supreme] Court has held that credit must be
given to the judgment of another state although the forum w ould not be
required to entertain the suit on which the judgment was founded; that
considerations of policy of the forum which w ould defeat a suit upon the
original cause of action are not involved in a suit upon the judgment and
are insufficient to defeat it.

M ilwaukee County, 296 U.S. at 277 (holding that a judgment for taxes in

W isconsin was enforceable in Illinois under the Full Faith and Credit Clause).

“W e are aware of no . . . considerations of local policy or law which could rightly

be deemed to impair the force and effect which the full faith and credit clause and

the Act of Congress require to be given to . . . a judgment outside the state of its

rendition.” M agnolia Petroleum C o. v. Hunt, 320 U.S. 430, 438 (1943), overruled

on other grounds by Thomas, 448 U.S. at 286.

OSDH stops short of arguing that the Full Faith and Credit Clause permits

states to invoke a “policy exception,” but contends that requiring Oklahoma to

recognize an out-of-state adoption judgment would be tantamount to giving the

29
sister state control over the effect of its judgment in Oklahoma. Specifically,

OSD H argues that the recognition of adoptive status in Oklahoma w ould extend

the gamut of rights and responsibilities to the parents and child of the adoption

order, including the right of a child to inherit from his parents, and therefore

would constitute an impermissible, extra-territorial application of California law in

Oklahoma. OSD H argues that inheritance is an Oklahoma property right which

California courts lack the power to confer.

OSDH’s argument improperly conflates O klahoma’s obligation to give full

faith and credit to a sister state’s judgment with its authority to apply its own state

laws in deciding what state-specific rights and responsibilities flow from that

judgment. In Baker, the Supreme Court drew the distinction between the mandate

to give full faith and credit to another state’s equity decree and the forum state’s

options for enforcing that decree:

The Court has never placed equity decrees outside the full faith and
credit domain. . . .

Full faith and credit, however, does not mean that States must adopt the
practices of other States regarding the time, manner, and mechanisms for
enforcing judgments. Enforcement measures do not travel with the sister
state judgment as preclusive effects do; such measures remain subject to
the even-handed control of forum law. See M cElmoyle ex rel. Bailey v.
Cohen, 13 Peters 312, 325 (1839) (judgment m ay be enforced only as
“laws [of enforcing forum] may permit”); see also Restatement (Second)
of Conflict of Laws § 99 (1969) (“The local law of the forum determines
the methods by which a judgment of another state is enforced.”).

30
Baker, 522 U.S. at 234-35. The Court explained, as an example, that “a sister

State’s decree concerning land ownership in another State has been held

ineffective to transfer title,” even if the decree would have a preclusive effect

against the parties in any further adjudication of the property rights. Id. at 235

(emphasis omitted).

A California court made the decision, in its own state and under its own

laws, as to whether Jennifer Doel could adopt child E. That decision is final. If

Oklahoma had no statute providing for the issuance of supplementary birth

certificates for adopted children, the Doels could not invoke the Full Faith and

Credit Clause in asking Oklahoma for a new birth certificate. However, Oklahoma

has such a statute – i.e., it already has the necessary “mechanism[] for enforcing

[adoption] judgments.” See id. The Doels merely ask Oklahoma to apply its ow n

law to “enforce” their adoption order in an “even-handed” manner. See id.

Oklahoma continues to exercise authority over the manner in which adoptive

relationships should be enforced in Oklahoma and the rights and obligations in

Oklahoma flowing from an adoptive relationship. And Oklahoma has spoken on

that subject:

After the final decree of adoption is entered, the relation of parent and
child and all the rights, duties, and other legal consequences of the
natural relation of child and parent shall thereafter exist between the
adopted child and the adoptive parents of the child and the kindred of
the adoptive parents. From the date of the final decree of adoption, the
child shall be entitled to inherit real and personal property from and

31
 through the adoptive parents in accordance with the statutes of descent
and distribution. The adoptive parents shall be entitled to inherit real
and personal property from and through the child in accordance with said
statutes.

After a final decree of adoption is entered, the biological parents of the
adopted child, unless they are the adoptive parents or the spouse of an
adoptive parent, shall be relieved of all parental responsibilities for said
child and shall have no rights over the adopted child or to the property
of the child by descent and distribution.

Okla. Stat. tit. 10, § 7505-6.5(A) and (B). By way of illustration, the right of a

parent in Oklahoma to authorize medical treatment for her minor child, id., §

170.1, extends by virtue of § 7505-6.5 to adoptive parents as well. W hatever

rights may be afforded to the Doels based on their status as parent and child, those

rights flow from an application of Oklahoma law, not California law.

OSDH argues that Oklahoma is not bound by the Full Faith and Credit

Clause to recognize out-of-state adoptions to which the Commissioner of Health

was not a party. OSDH, citing Estin v. Estin, 334 U.S. 541 (1948), observes that a

judgment rendered in a sister state may be enforced in Oklahoma only if the

original court in the sister state had personal jurisdiction over the parties to the

judgment. Thus OSD H contends it has no constitutional obligation to recognize

California’s adjudication of the Doels’ adoption because no Oklahoma official was

a party to the California adoption, and therefore the California court ordering the

adoption had no personal jurisdiction over any Oklahoma official to enforce the

order against such an official.

32
 OSDH’s theory misconstrues the Doels’ lawsuit and the role of the state

being asked to give full faith and credit to a sister state’s prior judgment. The

Doels do not seek to enforce their adoption order against D r. Crutcher in his

official capacity for the state of Oklahoma as a matter of claim or issue preclusion.

Instead, the D oels assert in their Oklahoma suit that Dr. Crutcher and OSDH are

obligated under Oklahoma law to issue a supplemental birth certificate and that

they have failed to fulfill the constitutionally-imposed duty on states to recognize

another state’s judgment. In the course of that adjudication, of course, OSDH

must be mindful of the parties’ substantive constitutional rights, one of which is

that the Doels’ final judgment in California adjudicating their status as adoptive

parents be given full faith and credit. The rights that the Doels seek to enforce in

Oklahoma are Oklahoma rights and the Doels have clearly established jurisdiction

over Dr. Crutcher and OSD H in Oklahoma, such that the United States District

Court for the W estern District of Oklahoma can adjudicate those rights. OSDH’s

argument would vitiate the Full Faith and Credit Clause by seemingly requiring

each state in the nation to be a party to the original action in a sister state in order

for the resulting judgment to be enforced across the country. The absurdity of the

argument is obvious. 1 3

13
OSDH also attempts to raise several related arguments for the first time
on appeal.
(continued...)

33
 OSDH makes no persuasive argument as to why the Full Faith and Credit

Clause of the Constitution should not apply to its recognition of out-of-state

adoption orders. Indeed, many courts – including Oklahoma’s Supreme Court –

have determined that the Full Faith and Credit Clause applies to valid adoption

decrees from other states.

The validity of the A rkansas decree is not called in question, therefore
the same is entitled to full faith and credit under the Federal
Constitution, Art. 4, § 1. 1 Am. Jur. 627, sec. 10.

As stated in American Law Institute’s Restatement of the Law of
Conflict of Laws, sec. 143, “The status of adoption, created by the law
of a state having jurisdiction to create it, will be given the same effect

13
(...continued)
First, OSDH contends that the California adoption order is invalid because
it failed to make explicit findings of subject matter jurisdiction, namely the
petitioner’s domicile and personal appearance, an argument severely undermined
by notations on the adoption order itself. OSD H further argues that Dr. Crutcher
as Commissioner of Health is not bound by findings of the California proceedings
that were not “truly litigated.” O SDH contends that the Full Faith and Credit
Clause is only triggered when a state court, as opposed to a state agency, is asked
to acknowledge the out-of-state adoption, and that no plaintiff in this case has
sought such action from an Oklahoma court. OSDH also argues that the Doels
have failed to demonstrate that they would be entitled to the requested birth
certificate in California, and therefore OSD H is not according the Doels’ adoption
“less credit” than California would provide. OSD H’s last new argument is that
adoption orders are not “final,” because findings of a child’s best interests are not
“final,” and therefore Oklahoma need not accord such orders full faith and credit.
W e do not consider such new theories belatedly advanced in litigation.
Bancamerica Commercial Corp. v. M osher Steel of Kan., Inc., 100 F.3d 792,
798-99 (10th C ir. 1996). Furthermore, without deciding any of these issues, w e
observe that the arguments lack support from any relevant authority and none
appear to have merit.

34
 in another state as is given by the latter state to the status of adoption
when created by its own law.”

Ex parte M oulin, 217 P.2d 1029, 1031 (Okla. 1950); see also In re M ale C hild

Born July 15, 1985 to L.C., 718 P.2d 660, 665 (M ont. 1986); W achovia Bank and

Trust Co., N.A. v. Chambless, 260 S.E.2d 688, 692 (N.C. Ct. App. 1979); Delaney

v. First Nat’l Bank, 386 P.2d 711, 714 (N.M . 1963) (citing courts from Florida,

Illinois, Louisiana, M assachusetts and Pennsylvania); In re Hampton’s Estate, 131

P.2d 565, 570 (Cal. Ct. App. 1942). See generally C.J.S. Adoption § 139. Even a

century ago, when the Supreme Court considered whether Alabama improperly

denied individuals adopted in Louisiana inheritance rights, the Court affirmed that

the Full Faith and Credit Clause is not violated if a state “does not deny the

effective operation of the [out-of-state adoption] proceedings.” Hood v. M cGehee,

237 U.S. 611, 615 (1915). 1 4 At issue here is a state statute providing for

categorical non-recognition of a class of adoption decrees from other states,

denying the “effective operation” of out-of-state adoption proceedings.

14
Hood featured an Alabama statute that prohibited inheritance by children
adopted through proceedings in other states. 237 U.S. at 614. Applying that
statute, the adopted children were ineligible to take land in Alabama. “There is
no failure to give full credit to the adoption of the plaintiffs, in a provision
denying them the right to inherit land in another State. Alabama is sole mistress
of the devolution of Alabama land by descent.” Id. at 615. OSD H follows at
least one other state, see Indus. Trust Co. v. Glanding, 38 A.2d 752, 754 (Del. Ch.
1944), in misconstruing Hood to mean that the Full Faith and Credit Clause does
not require recognition of out-of-state adoptions.

35
 W e hold today that final adoption orders and decrees are judgments that are

entitled to recognition by all other states under the Full Faith and Credit Clause.

Therefore, Oklahoma’s adoption amendment is unconstitutional in its refusal to

recognize final adoption orders of other states that permit adoption by same-sex

couples. Because we affirm the district court on this basis, we do not reach the

issues of whether the adoption amendment infringes on the Due Process or Equal

Protection Clauses.

W e REVERSE the district court’s order in this matter to the extent it held

that the M agro-Finstuen plaintiffs had standing and directed OSD H to issue new

birth certificates for the M agro-Finstuen plaintiffs. The order and judgment of the

district court in all other respects is AFFIRMED.

36
06-6213, Finstuen v. Crutcher
06-6216, Hampel v. Crutcher

H A R T Z, J., concurring and dissenting.

Before us are two appeals. In one, No. 06-6216, the Hampel-Swaya

plaintiffs appeal the dismissal of their claims for lack of standing. I join Judge

Ebel's opinion affirming that they lack standing.

In the other appeal, No. 06-6213, the Oklahoma State Department of Health

(OSD H) appeals the district court's judgment against it. OSD H named as

appellees the Finstuen-M agro plaintiffs and the Doel plaintiffs. The Finstuen-

M agro plaintiffs, however, have no dispute with the O SDH. Their claims were

against the Governor and Attorney General, who have not appealed. As the joint

answer brief filed on behalf of the Finstuen-M agro plaintiffs and the Doel

plaintiffs states: "Heather Finstuen and Anne M agro did not request any relief of

the Commissioner or the Department . . . ." Ans. Br. at 25 n. 10. Therefore,

although I w ould set aside the district court's order requiring OSDH to issue birth

certificates for their children (an action they do not oppose on appeal, see id.), I

see nothing to address in this appeal regarding their standing, mootness, or the

merits.

That leaves only the claims by the Doel plaintiffs. I agree with the panel

majority that the Doel plaintiffs have Article III standing and that the appeal with

respect to them is not moot. As for the merits, however, I see no need to address

the constitutional issues. The OSDH concedes in its brief that the statute
challenged by the Doel plaintiffs does not preclude issuance of the birth

certificates that they seek. Although the OSD H bases that view on its construction

of the statute rather than on an agreement with the plaintiffs' constitutional

arguments, I see no reason not to accept that concession for this appeal. In light

of that concession, the only argument of OSDH for setting aside the district court's

judgm ent is that other statutes prohibit issuance of the birth certificate. But OSD H

did not raise that argument in district court, so we need not and should not

consider it on appeal. Accordingly, we should affirm the judgment of the district

court with respect to the Doel plaintiffs' claims against the OSDH.

-2-