Originally published on Advocate.com December 10 2004 1:00 AM ET
Oklahoma's law prohibiting the state from recognizing out-of-state adoptions by same-sex couples can be challenged in court, a judge has ruled. U.S. district judge Robin Cauthron issued an order on Tuesday saying a lawsuit brought on behalf of three gay and lesbian couples can move forward. The state had asked that the lawsuit against Gov. Brad Henry and Atty. Gen. Drew Edmondson be dismissed. The state said the lawsuit should be dismissed under constitutional provisions that generally prohibit citizens from suing a state in federal court. The judge found that these provisions do not apply.
The attorney general's office will appeal Cauthron's ruling to the 10th U.S. circuit court of appeals, said Charlie Price, a spokesman for the office. He said defense attorneys had no further comment other than to say they still believe the state is immune from such lawsuits under the constitution and that they would press the claim in the appeals court. The law, signed by Henry in May, came in response to an opinion issued by Edmondson that concluded the Oklahoma State Department of Health was required to issue supplementary birth certificates to children adopted by same-gender parents.
"We are very happy the lawsuit can move ahead," said Anne Magro, one of the plaintiffs. Magro gave birth to twin girls in New Jersey. Her partner of 13 years, Heather Finstuen, became the second parent through adoption, and the girls were given supplemental birth certificates listing Magro and Finstuen as the parents. The couple and the children, now 6, live in Norman. Magro worries that under Oklahoma law, Finstuen would not be regarded as a parent. "I literally lie awake at night worrying about this," Magro said. "What if something happens to me? What if there is a car accident and I die and the girls are in intensive care? Will she be allowed to make medical decisions, visit them, be treated as parent?"
In a section of the ruling discussing the governor's standing as a plaintiff, the judge wrote, "If Governor Henry faithfully executes the Oklahoma law pursuant to his duty to do so, no state agency will recognize these plaintiffs as a family and these plaintiffs could be deprived of all the legal rights and obligations associated with that relationship." Brian Chase, the plaintiffs' attorney, said this indicates the judge understands the full impact of the law. "The judge clearly sees how dangerous this law is for families in Oklahoma," Chase said. "The legislature singled out these families and tried to strip them
of all legal protections, and that's unconstitutional." He said Oklahoma's law is unusual. "Nobody has anything remotely similar to this," Chase said. "I don't think any state has any type of law that pretends to ignore adoption decrees."
Proponents of the law say it is proper and that a majority of Oklahomans do not want gay couples to have adoptive children. "Children are best raised in a mother-father relationship," Republican state representative Thad Balkman of Norman, an author of the law, has said. "There's only certain things that a father can teach a child. It goes the same way with moms."