Fears that the Full Faith and Credit Clause of the U.S. Constitution could be used to further LGBT equality have been the lynchpin of anti-gay advocates’ efforts to pass, first, statutory “Defense of Marriage” laws and, later, state constitutional amendments prohibiting relationship recognition for same-sex couples.

It seems LGBT advocates’ dreams and opponents’ fears have come true in Virginia.

Leonard Link, the blog of New York Law School Professor Arthur S. Leonard, reports the Virginia Court of Appeals ruled Nov. 24 in favor of a gay couple seeking to uphold an adoption originally decided upon by a court in Gaston County, N.C.

Although the entire sordid affair, with its twists and turns, is interesting in and of itself, it is the Virginia court’s decision that is most intriguing.

Leonard reports (emphasis added):

[Gay parents Roberto-Luis] Copeland and [Philip] Spivey then moved to Fairfax County, Virginia, with [daughter] A.C.C. Seizing upon the fact that Virginia is legally hostile to same-sex couples, having adopted both a statute and a constitutional amendment banning recognition of same-sex marriages, civil unions and domestic partnerships, [surrogate mother Tanya] Prashad filed petitions in the Fairfax Juvenile Court, seeking to have the North Carolina custody judgment “registered” with the court but with Copeland omitted as a parent, and also seeking custody of A.C.C. She specifically asked the court to exclude Copeland from having any parental rights, arguing that any acknowledgment of Copeland as a parent was an implicit recognition of the relationship between Copeland and Spivey in violation of Virginia law. Prashad also filed a petition to modify the North Carolina judgment so as to give her sole legal and physical custody of A.C.C.

On March 12, 2008, the Fairfax court registered the North Carolina court orders in their totality, declining Prashad’s demand to exclude Copeland. Prashad appealed this decision to the Fairfax County Circuit Court, which affirmed, and then she took her appeal to the Virginia Court of Appeals, which also affirmed.

The majority of the panel ruled, in an opinion by Judge Cleo E. Powell, that under the Full Faith and Credit Clause of the U.S. Constitution, Virginia courts are obligated to recognize and enforce courts orders concerning custody and jurisdiction of children that are issued by courts of other states that had proper jurisdiction over the parties and the subject matter of the case. Since Copeland, Spivey and the child were residents of North Carolina at the time the custody agreement was embodied in a court order, the Juvenile Court properly registered it without any modification. The Court of Appeals made clear that its decision only concerned the registration of the North Carolina custody and visitation orders, pointing out that all the discussion in the appeal raised by Prashad about “homosexual marriage” and “same-sex relationships,” was irrelevant in the court’s eyes to the specific issue that was being appealed.

Leonard Link also reported (emphasis added):

Finally, the court found that the Virginia Marriage Amendment and the anti-same-sex marriage statute were essentially irrelevant to the issue of registering the North Carolina custody order because, as Judge Powell pointed out, “neither party is asking the Court to recognize Copeland and Spivey’s relationship.” Furthermore, the North Carolina court, in determining that Copeland should be part of the custody proceeding there, had based this determination on Copeland long-standing relationship with the child, and not in any way on Copeland’s relationship with Spivey. As such, the Virginia amendment and statute were not implicated.

The Virginia Court of Appeals decision seems like a positive step for LGBT people, although the ruling will likely never have a positive impact on same-sex couples wishing to adopt inside the Commonwealth. Virginia law prohibits second parent adoption unless a couple is married. Since the Virginia constitution prohibits marriage between same-sex couples, adoption by gay or lesbian couples is essentially prohibited as well.

In this particular case, the Virginia court was asked to rule on an adoption order by another state’s court system. No doubt, LGBT advocates will claim the court properly decided the case base on the U.S. Constitution’s Full Faith and Credit Clause. Anti-gay opponents, like the Alliance Defense Fund and Liberty Counsel, will, without doubt, degree with such a statement.

So, is the Virginia decision a positive step forward or not? I think there are separate yes and no answers. Citing the Full Faith and Credit Clause to extend/preserve rights of an LGBT couple as decided by another state is a positive move forward. Unfortunately, this week’s Virginia decision will likely have no positive effect on LGBT couples who are Virginia citizens.