NEW ORLEANS (CN) - A gay couple who were refused an accurate birth certificate for their Louisiana-born adopted son asked the Supreme Court to review their case. Louisiana has refused to recognize the adoption and issue a birth certificate listing both fathers as the boy's parents.
The two fathers claim the state has an unconstitutional policy against adoption by unmarried couples.
Under Louisiana law, all children born in the state, if adopted, are entitled to an amended birth certificate showing their adoptive parents.
"In Louisiana, however, the Registrar has a policy and practice of refusing to issue accurate amended birth certificates to those Louisiana-born children who have been legally adopted in a court proceeding in a sister state but whose adoptive parents are not legally married," the couple's petition states.
The fathers say that "the Registrar's justification for this disparate treatment of foreign judgments of adoption by unmarried parents is that such adoptions would not have been allowed in Louisiana, which prohibits joint adoptions by unmarried adults. When asked what possible interests Louisiana could have in discriminating against children who are legally adopted in other states by unmarried parents, the Registrar could not identify any."
Oren Adar and Mickey Ray Smith adopted their Louisiana-born son in 2006, in the state of New York, where the couple was then residing. The men asked for a birth certificate that listed both plaintiffs as the child's parents, but Louisiana's Registrar of Vital Records refused their request based on a statute that does not recognize adoption by unmarried parents.
Adar and Smith sued the State Registrar in Federal Court, saying that Louisiana violated the Full Faith and Credit Clause of the U.S. Constitution, which requires states to recognize judgments and records from every other state. They also argued that denying a birth certificate to children adopted by unmarried parents violates equal protection under the 14th Amendment.
In December 2008, a U.S. district judge ruled in favor of the fathers and ordered Louisiana to issue a new birth certificate identifying both Adar and Smith as the child's parents.
A three-judge panel of the 5th Circuit upheld the district court's ruling, finding that although the state is free to apply its own laws regarding the enforcement of judgments, it must do so in an even-handed manner.
Louisiana sought - and won - a rehearing by the full 5th Circuit.
Earlier this year, a divided 5th Circuit reversed the previous rulings, finding that the Full Faith and Credit Clause applies only to state courts.
The court also ruled that Louisiana did not violate equal protection in refusing to issue amended birth certificates to the children of adoptive, unmarried parents based on the state's disapproval of those parents' marital status. The en banc majority noted that "adoption is not a fundamental right" and Louisiana is entitled to "issue birth certificates in the manner it deems fit."
But the plaintiffs claim the Supreme Court "has long made it clear that states are not free to disregard foreign judgments based on their state's public policy preferences, even if the activity underlying the judgment would be illegal under state law."
They say the 5th Circuit's ruling that only state courts must obey the Full Faith and Credit Clause contradicts the Constitution and "has important implications for a wide variety of judgments rendered in state courts throughout the land and deserves [the Supreme] Court's review."
Adar and Smith claim that "Louisiana's goals of promoting its view of stable parental relationships in deciding who can adopt in the state is irrelevant because petitioners are already the adoptive parents and Louisiana cannot change that."
What's more, Louisiana allows both unmarried biological parents to be listed on a child's birth certificate, the lengthy petition states.
The plaintiffs say that "obtaining an amended birth certificate that accurately identifies both parents of an adopted child is vitally important for multiple purposes, including determining the parents' and child's right to make medical decisions for other family members at the necessary moments; determining custody, care and support of the child in the event of a separation or divorce between the parents; obtaining a social security card for the child," and impacts legal rights and benefits such as inheritance, insurance, tax returns, school registration and obtaining a passport.
They say the adoption decree is not an acceptable substitute for a birth certificate.
"The inability to obtain an accurate birth certificate poses a substantial barrier to accessing many essential rights and benefits in our society," the petition states.
The plaintiffs' lead counsel is Kenneth Upton, Jr. with the Lambda Legal Defense and Education Fund of Dallas.
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