By Nan Hunter -
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.
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