Adar v. Smith continued...why two gay dads still have no birth certificate for their son

When Oren Adar and Mickey Smith sued the state of Louisiana in federal district court, they claimed that the state registrar violated their constitutional rights by refusing to issue a birth certificate for their child listing both of them as parents. The US Constitution requires each state to give "full faith and credit" to the judgments of the courts of other states. So Adar and Smith claimed that Louisiana's refusal to create an amended birth certificate accurately representing their status as adoptive parents was a violation of the Full Faith and Credit clause.

When the Fifth Circuit ruled against them yesterday, it held that no such suit could be filed in federal district court. The Full Faith and Credit clause, the court ruled, requires Louisiana state courts to respect the adoption decree. According to this reasoning, the couple should have brought suit in Louisiana state court and if they lost there the only recourse would be asking the US Supreme Court to hear the case. According to the majority, the couple simply cannot sue the state in federal court for violating their right to receive Full Faith and Credit for their New York adoption decree.

The majority acknowledges that the 10th Circuit ruled otherwise, but here is how they distinguish that case. Oklahoma had a statute refusing to recognize out-of-state adoptions by same-sex couples. Louisiana, according to the court, not only has no such statute but admits that its courts must recognize Adar and Smith as the parents of their child. The court would have us believe that refusing to issue a birth certificate is not a failure to recognize the couple's parentage but is simply a refusal to enforce that parentage in a particular way. And the court notes that the state is willing to issue a new birth certificate in light of the New York adoption decree, but only by listing the name of one of the fathers as a parent.

There is a very strong five-judge dissent in the case, often using hyperbole and exclamation points to convey the depth of its rejection of the majority's reasoning. To the state's argument that it is willing to provide a new birth certificate with one father's name (an offer the dissent calls "Solomonesque"), the dissent notes, "I have searched the Constitution in vain for a 'Half Faith and Credit Clause.'" The dissent concludes that the couple is able to file a federal civil rights claim and that the state has indeed violated their right to have full faith and credit accorded their New York adoption.

According to the dissent, FF and C could not require Louisiana to issue new birth certificates at all for children after they are adopted. But since they have chosen to do so, Adar and Smith have a right to have their adoption treated the same way as all out of state adoptions. The dissent relies on the state statute that says the vital records registrar shall issue new birth certificates. The only thing unsettling about this reasoning is that it suggests a different analysis would apply if Louisiana had -- like Texas -- a statute explicitly forbidding issuance of a new birth certificate to unmarried adoptive parents. Then, presumably, there would only be an equal protection claim.

And speaking of the equal protection claim, which I discussed yesterday, the dissent and two of the concurring judges thought the en banc court should not have ruled on that issue because neither the district court ruling nor the panel ruling of the 5th Circuit addressed it. Nonetheless, the dissent has an interesting take on how the equal protection claim should be analyzed. The dissent believes the appropriate comparator group is unmmarried biological parents rather than married adoptive parents. Since Louisiana issues birth certificates with the names of two unmarried biological parents, the dissent asserts, it cannot justify denying a birth certificate to unmarried adoptive parents. Interesting twist. The dissent also points out that the birth certificate laws are about containing accurate and complete information and that the state's ban on adoption by an unmarried couple is in no way affected by requiring the state to issue an accurate birth certificate for this child.

Lambda Legal is considering whether to ask the US Supreme Court to review this en banc decision.

Fifth Circuit en banc ruling in Adar v. Smith denies birth certificate to child adopted by two men

Late today, the Fifth Circuit Court of Appeals issued an en banc ruling in Adar v. Smith. As I noted in several earlier posts about this case, Oren Adar and Mickey Smith jointly adopted a child in New York. The child was born in Louisiana, and the couple sought an amended birth certificate listing both of them as parents. Louisiana refused to issue the birth certificate, citing its own law prohibiting an unmarried couple from jointly adopting a child. The couple is represented by Lambda Legal, whose senior staff attorney Ken Upton argued the case in January. The couple won in the trial court and in a Fifth Circuit panel opinion. This loss comes after rehearing by the entire Fifth Circuit.

Tomorrow I will write more about the court's ruling that the couple could not sue the state for violating the Full Faith and Credit Clause. Tonight I will just note that the court ruled against the argument that the state is denying the child equal protection of the law by refusing to issue a birth certificate based on the marital status of his parents.

Citing the despicable 11th Circuit Lofton ruling upholding Florida's ban on adoption by gay men and lesbians, the majority said that Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." It then cited one 2002 report for the principle that marriage is associated with better child outcomes than cohabitation because it is more likely to provide stability. Because this provides a rational basis for denying unmarried couples the opportunity to adopt, it therefore is sufficient support for denying a child adopted by an unmarried couple a birth certificate with two names. Both the logic and the sentiment here are appalling. This reasoning (or lack thereof) stands in sharp contrast to that of the Arkansas Supreme Court, which just last week ruled that the state's ban on adoption by anyone living with an unmarried partner was unconstitutional. The Adar v. Smith Fifth Circuit ruling also dismissed almost out of hand the argument that the state is violating the constitutional prohibition on discrimination against nonmarital children by denying a child with unmarried parents a birth certificate reflecting his legal parentage -- something granted routinely to children with married parents.

There's a strong dissent. And there is a contrary case from the 10th circuit five years ago, also argued by Lambda Legal. I hope Lambda asks for review by the US Supreme Court. The "circuit split" raises the odds that the Court would hear the case.

Louisiana must issue birth certificate naming two dads

After Oren Adar and Mickey Ray Smith completed an adoption in New York of a child born in Louisiana, the couple sought a new Louisiana birth certificate for the child containing the names of the two men as her parents. Louisiana refused to do it, saying it was against the state's public policy to recognize two fathers for the child.

The federal district court in Louisiana ordered the state to issue the birth certificate. Today that decision was affirmed by the Fifth Circuit US Court of Appeals. Thank you, Full Faith and Credit Clause. That's the section of the US Constitution that requires states to recognize the court judgments of other states. This provision is the absolute key to assuring that children who are the subject of adoption decrees or parentage orders in one state will still have two parents when they move to another state. The Adar v. Smith (Smith happened to be the name of Louisiana's State Registrar -- no relation to Adar's partner, Mickey Smith) ruling restates what the US Supreme Court has said continuously, that there is no "public policy" exception to the Full Faith and Credit Clause.

Judgments from a state court are different from a state's statutes. Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union, for example, Louisiana might not have been required to recognize their dual parentage. It's a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.

Louisiana could petition the US Supreme Court to review the decision of the 5th Circuit. I'd bet my legal career the Supreme Court would choose not to hear the case. The 5th Circuit also governs Mississippi and Texas, so those states, too, have now been read the riot act on trying to get out of what the Full Faith and Credit clearly requires, whether they want children to have two same-sex parents or not.

Numerous organizations and scholars join Lambda Legal in asking the US Supreme Court to hear Adar v. Smith

Six friend of the court briefs were filed this week asking the US Supreme Court to hear Adar v. Smith, the case of the gay male couple denied an accurate revised birth certificate for the Louisiana-born child they adopted in New York. Lambda Legal represents the couple and filed a cert petition on their behalf last month.

Lambda's press release Thursday summarizes and links to the six briefs.

It is never an easy decision to ask the Supreme Court to hear a gay rights case. There is always the possibility of losing, thereby making bad law for the entire country. But the Fifth Circuit en banc ruling in Adar, which I wrote about here, has the potential to make mischief beyond the states that are bound by it (Texas, Louisiana, and Mississippi).

Lambda deserves huge credit for their representation of this couple and their coordination of the friend of the court briefs filed in support of the cert petition. I am one of the more than two dozen family law professors named as amici in one of the briefs, and I want to give a special shout out to Joan Hollinger at UC Berkeley and Courtney Joslin at UC Davis, as well as the National Center for Lesbian Rights, for their work on this brief. As I reviewed the list of fellow family law profs on this brief -- most heterosexual and without a primary focus in their work on LGBT families -- I am also grateful that so many highly respected scholars care enough about our families and the children we raise to lend their considerable prestige to this case.

We won't hear back from the Supreme Court until October.

Adar v. Smith oral argument focuses on procedure

I thought there would be numerous press accounts of the oral arguments last week in Adar v. Smith. After all, it's a case that exemplifies a significant "culture war" between states that fully respect the ability of same-sex couples to raise children, including adopted children, and states that wish to signal their disapproval of childrearing by same-sex couples in every way they can. In addition, it was an en banc 5th Circuit argument, meaning that all 16 judges on a court that sits just below the US Supreme Court heard the case. This is not an everyday occurence. (The court's website says that requests for en banc hearings are granted less than 3% of the time).

But I've listened to the oral argument online now (click here and look for Oren Adar v. Darlene Smith), and I realize that probably 95% of the time was taken up by legal issues so technical that I had to listen to it twice before even writing this account. So it's no wonder the argument was not covered in a single newspaper or other mainstream media source.

The Louisiana Attorney General's office hopes the 5th Circuit never discusses adoption by a same-sex couple when it rules in the case. It wants the case dismissed on the basis that the federal court lacks subject matter jurisdiction (meaning the legal authorization) to hear the case. It thinks the Full Faith and Credit Clause is a command to courts and cannot be the basis of a lawsuit against a state registrar to issue a new birth certificate. Don't even try to understand that if you have taken a law school course in both Civil Procedure and Federal Courts. Some of the judges appeared to think the couple needed to take the case to state court.

Then the state argued that the couple lacks standing to challenge the refusal of the state to issue a birth certificate because nothing bad has happened to them. Since there is supposedly no evidence that anyone has failed to recognize both men as parents, there is nothing for the court to decide. If that happens, the state argues, then the couple could go to state court and make an argument there.

Well there have been some problems faced by the couple, but, in any event, argued Ken Upton from Lambda Legal on behalf of the couple, not having a birth certificate is an injury. This caused a judge to ask whether a state could refuse to issue new birth certificates at all for any children after they were adopted. That would be an injury without a remedy, Upton answered (because there is no constitutional right to have a birth certificate changed). And therein lies the heart of the case: the state does issue new birth certificates, but only for children adopted by a single individual or a married couple. That is the equal protection claim in the case, and it's the dispute about that claim that was so absent in the oral argument.

Anyway, from the Louisiana Attorney General's office, Kyle Duncan argued that the Full Faith and Credit Clause binds the parties only, so neither Dad could challenge the adoption in Louisiana (and the birth parents could not relitigate their consent to the adoption). He said that Louisiana might, and I want to emphasize might, have to recognize both men as parents should it come up in such context as the right to recover for the wrongful death of a parent. But he argued that Louisiana does not have to issue a new birth certificate. One state's adoption decree cannot require another state to change its public records, he said. That "might" drove me nearly insane as I listened to it. The state is not even conceding that the child actually has two legal parents of the same sex. This is very scary stuff.

The state argued that its DOMA requires Louisiana to interpret all its statutes to negate recognition of marriage by same-sex couples. This couple isn't asking for recognition as a married couple at all, so that argument is out of line. But because there is a plausible question under state law about whether, in fact, the registrar is applying the law properly by considering the state DOMA in refusing to issue a birth certificate, some judges seemed to want the case heard in state court so that a state court could decide what the state law requires.

There is a bottom line here. Whatever the Full Faith and Credit Clause means, the Equal Protection Clause prohibits a state from distinguishing between children of married parents and children of unmarried parents unless doing so is substantially related to an important governmental objective. Even if the court judged the case on a "rational basis" standard, the state would have to say that the distinction between those to whom it gives new birth certificates and those to whom it does not is rationally related to a legitimate state interest. Here the state says that its birth certificate policy is in keeping with its adoption law that only married couples can adopt in Louisiana. The state argues as though the plaintiffs cannot win unless the court rules it is unconstitutional to deny unmarried couples the ability to adopt children. Here's the quote from the state's brief (although, again, this did not come up in the oral argument):

Louisiana’s birth certificate policy, like the adoption laws undergirding it, enacts a simple intuition: a marriage recognized by law and a common culture provides a better basis for raising children than other relationships. We have not yet reached the point where federal courts will declare, by their own power, that such judgments are nothing more than bigotry.

Maybe so. But this is not what the plaintiffs seek.

So here is where I am left after digesting the oral argument and the briefs in this case. The District Court and the panel of the 5th Circuit that ruled for the plaintiffs ducked the Equal Protection claim by ruling on the Full Faith and Credit claim. If the en banc court disagrees about the merits of the Full Faith and Credit claim, then I don't see how it can duck the Equal Protection claim. A win on that ground would be sweet, and a loss devastating.

Fifth Circuit hears argument en banc tomorrow on case testing interstate recognition of adoption decrees

Early last year, a panel of the Fifth US Circuit Court of Appeals ruled in Adar v. Smith that Louisiana was required to issue a new birth certificate naming two men as the parents of a child born in Louisiana, after the couple adopted the child together in New York. The Louisiana registrar of vital records refused to issue the birth certificate with both fathers' names because unmarried couples are not permitted to adopt in Louisiana.

Well, the court granted the state's motion for rehearing en banc, and tomorrow all the judges on the 5th Circuit will hear oral argument in the case. The state is making an insidious argument that threatens the validity of all second-parent adoptions across state lines. While conceding that the adoptions are valid in the states where they were issued and bind the parties who litigated in all states, Louisiana is arguing that the Full Faith and Credit Clause of the Constitution does not require it to enforce an adoption decree that is against its public policy.

The Full Faith and Credit Clause requires states to enforce judgments from the courts of other states, without regard to their own public policies. A state is not required, however, to give Full Faith and Credit to another state's laws. An adoption decree is a judgment, but Louisiana is saying that the law that allowed a gay male couple to adopt in New York is what is really at issue and it is not required to give Full Faith and Credit to that, at least when it comes to enforcement through issuing a birth certificate that could not be issued under Louisiana's laws.

It's an argument that should lose. The 10th Circuit ruled four years ago in Finstuen v. Crutcher that an Oklahoma statute refusing to recognize adoptions from other states by same-sex couples and provide new birth certificates was unconstitutional. In the pending case, Louisiana tries to distinguish that opinion, but also argues that it was just plain wrong. If the 5th Circuit sides with the state, that will set up a Circuit split that could only be resolved by the US Supreme Court.

The state's argument also reminds me of the permutations argued by Lisa Miller in the longstanding litigation over Virginia's obligation to recognize Vermont's determination that Janet Jenkins is a parent of the child they planned together and entitled to visitation or custody. While that case turned on a specific federal statute requiring recognition of custody rulings from other states, rather than on the Full Faith and Credit Clause, after Miller lost on Virginia's obligation to recognize the Vermont order she argued that the statute did not require Virginia to enforce the Vermont order. It's a distinction with no legal difference, and Miller keeps losing.

While this case involves two men, Oren Adar and Mickey Rae Smith, Lousiana claims it would not issue an amended birth certificate for any unmarried couple who adopted a child born in Louisiana, because Lousiana prohibits such adoptions. A friend of the court brief filed on behalf of two law professors, Joan Hollinger and Barbara Bennett Woodhouse, and one of the most distinguished family law practitioner in Texas, Harry Tindall, who was chair of the committee that wrote changes to the Uniform Parentage Act, argues that this is unconstitutional discrimination against children of unmarried parents. I find it no accident that the first US Supreme Court case declaring discrimination against nonmarital children unconstitutional also came from Louisiana.

Lousiana's response to this? Essentially they say that while it is unconstitutional to discriminate against a child born to an unmarried couple, it is not unconstitutional to discriminate against a child adopted by an unmarried couple. Really.

The court will release a recording of the oral argument (here), but probably not until next week.

Supreme Court denies cert in Adar v. Smith, leaves child without accurate birth certificate

This morning the US Supreme Court declined to review Adar v. Smith, the ruling from the Fifth Circuit Court of Appeals (en banc) that Louisiana need not issue an amended birth certificate naming as the child's parents an unmarried couple who adopted the child in another state. A gay male couple had adopted the child in New York.

I have written about the case extensively here, including the massive effort by Lambda Legal to gain Supreme Court review.

A denial of certiorari is not a seal of approval for a lower court's ruling, so it does not make the law worse than it already is. (As opposed to a loss in the Supreme Court, which has nationwide ramifications). That said, the ruling that stands is very bad. It is the crack in the door that other states, and their courts, may walk through to deny recognition to same-sex couples raising children in a variety of contexts. Its differential treatment of children with married parents and those with unmarried parents is also deeply disturbing.

Lambda Legal requests US Supreme Court review of Louisiana birth certificate case

This week, Lambda Legal filed a petition for certiorari in the US Supreme Court, asking the Court to hear an appeal of Adar v. Smith. That case, which I have written about since the first court ruling almost a year and a half ago, challenged Lousiana's refusal to grant an accurate amended birth certificate to a child born in Louisiana and then adopted in New York by a same-sex couple.

In February, the Fifth Circuit, sitting en banc,issued an outrageous opinion upholding Louisiana's position. Although states must give Full Faith and Credit to court judgments from other states (which an adoption decree is), the 5th Circuit said that the couple had no right to sue that state to force its compliance with the Full Faith and Credit clause of the US Constitution. The cert petition points out that other Circuit Courts have ruled differently, and a "Circuit split" is one reason the Supreme Court hears cases.

Louisiana justified its policy by saying that it does not allow unmarried couples to adopt, even though denying this child an accurate amended birth certificate has no impact on what adoptions the courts in Louisiana grant. (And has no impact on the fact that this child has two unmarried, same-sex parents). The Lambda cert petition does a great job of demonstrating the long line of cases in which the Supreme Court has ruled that a child should not suffer because of the choices made by his/her parents, including many about children of unmarried parents.

The Supreme Court hears few cases. I hope it takes this one. It's scary to think of losing there, but the 5th Circuit opinion could do a lot of damage if other courts follow its scurrilous reasoning.