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Supreme Court denies appeal of Louisiana birth certificate ruling


By Adam Bink

A major disappointment today. Via e-mail from Lambda Legal:

(Washington, DC, October 11, 2011) – The U.S. Supreme Court today denied
Lambda Legal’s petition for a writ of certiorari in the case of a same-sex
couple seeking an accurate birth certificate for their Louisiana-born son
whom they adopted in New York. The Louisiana state registrar has refused
to recognize the adoption and issue a birth certificate listing both
fathers as the boy’s parents.

“By denying this writ, the Supreme Court is leaving untouched a dangerous
Fifth Circuit Court of Appeals ruling that carves out an exception to the
Full Faith and Credit Clause of the U.S. Constitution and to the uniformly
recognized respect for judgments that states have come to rely upon,” said
Kenneth D. Upton, Supervising Senior Staff Attorney in Lambda Legal’s
South Central Regional Office in Dallas. “This decision leaves adopted
children and their parents vulnerable in their interactions with officials
from other states.”

“More particularly, this decision leaves a child without an accurate birth
certificate listing both his parents,” Upton added. “This issue now moves
into the legislative arena. We need to push for a change in Louisiana
state policy in order to stabilize and standardize respect for
parent-child relationships for all adoptive children.”

Lambda Legal represents Oren Adar and Mickey Smith in their case against
Louisiana State Registrar Darlene Smith. Adar and Smith are a gay couple
who adopted their Louisiana-born son in 2006 in New York, where a judge
issued an adoption decree. When the couple attempted to get a new birth
certificate for their child, in part so Smith could add his son to his
health insurance, the registrar’s office told him that Louisiana does not
recognize adoption by unmarried parents and would not issue it with both
adopted parents’ names.

Lambda Legal filed suit on behalf of Adar and Smith in October 2007,
saying that the registrar was violating the Full Faith and Credit Clause
and Equal Protection Clause of the U.S. Constitution by refusing to
recognize the New York adoption judgment because the child’s parents are
unmarried. The Constitution requires that judgments issued by a court in
one state be legally binding in other states. Further, a state may not
disadvantage some children over others simply because the child’s parents
are unmarried. The Louisiana attorney general advised the registrar that
she did not have to honor an adoption from another state that would not
have been granted under Louisiana law had the couple lived and adopted
there. In 2008, U.S. District Judge Jay Zainey ruled against the registrar
and entered judgment ordering her to issue a new birth certificate
identifying both Oren Adar and Mickey Smith as the boy’s parents, saying
her continued failure to do so violated the U.S. Constitution. In 2010, a
three-judge panel of the Fifth Circuit Court of Appeals agreed and
unanimously affirmed the judgment. The attorney general requested a
rehearing by the full Court of Appeals, and a sharply divided court issued
a decision this spring overturning the prior decisions.

In July Lambda Legal asked the U.S Supreme court to review the case
arguing that the Fifth Circuit’s ruling ignores nearly one hundred years
of well-established Supreme Court law and conflicts with other federal
circuits across the country. In August, the nation’s leading child welfare
organizations joined family law and constitutional scholars in support of
Lambda Legal’s petition for a writ of certiorari, filing six separate
friend-of-the-court briefs. The signatories included: National Association
of Social Workers; Child Welfare League of America; Center for Adoption
Policy; Tulane School of Law – Juvenile Litigation Clinic; Juvenile
Justice Project of Louisiana; and more than 60 legal scholars.

“Unfortunately, same-sex parents who have or plan to adopt children are
treated differently from state to state at this point,” added Upton. “So
we urge parents to check with an attorney and take every step they can to
protect their families – and to call Lambda Legal’s HelpDesk if they need
more information.”

The case is Adar v. Smith.


  • 1. Alan_Eckert  |  October 11, 2011 at 9:07 am

    This is indeed bad news for the child.

  • 2. Ronnie  |  October 11, 2011 at 9:27 am

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  • 3. Mark M. (Seattle)  |  October 11, 2011 at 9:28 am

    I wonder if someone can dig up a case where two straight nonmarried people were granted their birth certificate by LA.

  • 4. erasure25  |  October 11, 2011 at 9:28 am

    This is so disgusting. Why do we even have a full faith and credit clause if it can't even be relied upon? We should change the name of this country to The Separated States of America.

  • 5. atty79  |  October 11, 2011 at 9:33 am

    Or the Confused States of America, where the Federal Government takes much more power than it is authorized under the Constitution (like passing DOMA) and the States ignore obvious provisions of that same Constitution (like ignoring the Full Faith and Credit Clause).

  • 6. jpmassar  |  October 11, 2011 at 9:46 am

    Why wouldn't the Supreme Court take a case that is such a clear violation of the Full Faith and Credit clause of the Constitution?

    I'd love it if someone with some constitutional legal background could explain how this makes sense not to be a cut-and-dried case of violating the FF&C clause.

  • 7. Ann S.  |  October 11, 2011 at 9:54 am

    Yes indeed. That really stinks.

  • 8. Ann S.  |  October 11, 2011 at 9:57 am

    The SCOTUS often waits until there is a conflict in the circuits (and there may already be, I don't know) and/or until there is strong public opinion on the subject. All we know for certain is that there weren't enough justices who thought this was important enough to remedy at this time.

    I'm told that the SCOTUS let people go to jail over miscegenation laws for years before finally taking the Loving v. Virginia case.

    So it doesn't "makes sense", they just didn't take the case, although the outcome is so unfortunate.

  • 9. Bill S.  |  October 11, 2011 at 10:00 am

    The reasoning is that the Full Faith and Credit Clause only applies to courts who must respect the "public acts, records, and judicial proceedings of every other state" in their own judgements. It does not apply to state officials, and cannot compel state officials to perform an action that runs counter to its strong public policy.

  • 10. Bill S.  |  October 11, 2011 at 10:00 am

    *that runs counter to its [the State's — not the official personally] strong public policy.

  • 11. jpmassar  |  October 11, 2011 at 10:15 am

    Check this out

    which suggests there is a Circuit conflict via Finstuen v. Crutcher

  • 12. Sagesse  |  October 11, 2011 at 10:25 am

    An interesting take on California's direct democracy process, closely followed by folks here.

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  • 13. Ann S.  |  October 11, 2011 at 10:32 am

    That seems to be a very good article. Unfortunately the existence of a conflict does not guaranty review by the SCOTUS.

    There was very interesting testimony by Justices Scalia and Breyer before the Senate Judiciary Committee last month on the role of the courts under the Constitution. You might find it interesting, I know I did. You can view the video archive here:…

    h/t to Kathleen.

  • 14. grod  |  October 11, 2011 at 11:47 am

    @ Ann S. I think what really stinks is that the justices did not provide any explanation for why they refused to hear the case.

  • 15. rocketeer500  |  October 11, 2011 at 11:54 am

    Louisiana's Adpotion policy is a states rights issue–plain and simple. It may not bode well for some, but I think that SCOTUS was correct in not hearing this case.

    Since the policy is applied equally for all unmarried couples, straight and gay, it's not discrimination. However, saying that, because of DOMA, any same-sex couples that are legally married, are treated as unmarried in Louisiana; that's were this law discriminates. And I don't see the Louisiana's legislature changing their adpotion laws in the near future either.

    I know that many gay and lesbian couples want to adopt, however it might be better (in some cases) to understand the laws of a particular state from which you are adopting. This way, a couple may avoid this problem in the future. Easier said than done, I know, however some states are more "friendly" to gay and lesbian couples as others.

  • 16. Ann S.  |  October 11, 2011 at 12:07 pm

    @Grod, unfortunately that is typical.

  • 17. Leo  |  October 11, 2011 at 12:18 pm

    The absence of discrimination between unmarried straight and gay couples doesn't mean there's no discrimination. IIRC the plaintiffs alleged (and the lower courts agreed) that there was discrimination between adopted children of unmarried couples and adopted children of married couples.

  • 18. Don Gaudard  |  October 11, 2011 at 12:20 pm

    Ann, there is a conflict in the circuits. The 10th Circuit (Oklahoma, Kansas, etc.) said that the State must recognize an out-of-state adoption. I'll try to track it down, but perhaps you can Google the info to find the case. My opinion is that the SCT wants to deal with Section 2 of DOMA before dealing with Section 3. In a way, that makes sense because two DOMA cases are set to be decided in the very near future. If they deal with the constitutionality of one man and one woman marriage, then I think they will be ready for whether or not other states have to r ecognize the out-of-state marriage. Unfortunately, the poor kid suffers,

  • 19. Don Gaudard  |  October 11, 2011 at 12:24 pm

    I agree — this is NOT a gay case; it is a case that involves 2 gay men who were married in New York. The discrimination is between married people and unmarried people. Louisiana does not recognize gay marriage and in their eyes, the 2 gay men are single and single people can't adopt in Louisiana.

  • 20. Steve  |  October 11, 2011 at 12:43 pm

    Buy alcohol (or certain other things) and a move across state lines is involved: it's a federal issue for some reason
    Get married or adopt and move across state lines: it's a state issue

    No, that does not and never will make any sense. It's one country and contracts that are made on one state should apply everywhere

  • 21. Don Gaudard  |  October 11, 2011 at 12:45 pm

    The 10th Circuit case dealing with recognition of out-of-state adoptions is:

    Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007)

  • 22. Ann S.  |  October 11, 2011 at 1:00 pm

    Don, yes, there is a conflict. But that doesn't mean that they have to take the case, only that it is somewhat more likely.

    Also, I think you have your sections of DOMA backwards. Section 2 has to do with recognition not having to be given by other states (and that was the even law before DOMA as I have mentioned before on other threads) and Section 3 has to do with recognition by the federal government.

  • 23. Don Gaudard  |  October 11, 2011 at 1:05 pm

    Bill, the SCt treats the Public Policy different for Judgments and State Statutes. As I understand it,
    the Supreme Court continues to apply its public policy exception differently for state judgments as compared to state laws. In the 2003 case of Franchise Tax Board v. Hyatt, the Court reiterated that, "[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments."

    If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. In cases of out-of-state judgments, the Court has stated that there may be exceptions to the enforcement and jurisdiction of out-of-state judgments, but maintains that

    there is no public policy exception to the Full Faith and Credit Clause for judgments.

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