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Monday, May 27, 2024 | Back issues
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Gay Dads Can’t Be Named on Son’s Birth Certificate

NEW ORLEANS (CN) - A split panel of the full 5th Circuit reversed a ruling that directed Louisiana to reissue a child's birth certificate to include the names of his gay adoptive fathers.

Because Louisiana law "attempts neither to encourage marriage nor to discourage behavior deemed immoral ... but rather to ensure stable environments for adopted children, the court has sufficient basis" to side with the state registrar whose refusal to reissue the birth certificate served as the catalyst for the fathers' lawsuit, a 10-judge majority of the federal appeals court found.

Mickey Ray Smith and Oren Adar asked the registrar to supplant their names on the birth certificate of their adopted son, Infant J, who was born in Shreveport, La., in 2006. Adar and Smith were living in Connecticut when they obtained an emergency adoption decree in a New York state court.

But Louisiana registrar Darlene Smith refused to issue a new birth certificate listing them as their parents, citing state laws barring unmarried couples from adopting children in Louisiana. Since single-parent adoption is legal, she offered to list just one of the men as the child's parent.

Smith appealed after the District Court ruled that Smith had violated the fathers' constitutional rights under the Full Faith and Credit Clause. A three-judge panel of the 5th Circuit approved the District Court's ruling, but the full circuit vacated the decision to rehear the case en banc.

A 10-member majority of the full 16-judge court ruled that Smith violated neither the Full Faith and Credit clause nor the Equal Protection clauses by refusing to list both men as fathers.

The 26-page majority decision, which is followed by 40 pages of concurring and dissenting opinions, says Louisiana law "attempts neither to encourage marriage nor to discourage behavior deemed immoral ... but rather to ensure stable environments for adopted children." For that reason, Darlene Smith's refusal to issue the birth certificate was in accord with Louisiana law.

Much of the court's decision stems from the assertion that state law from one state has no duty to operate according to state law as it is observed by another state.

"The Registrar has not denied recognition to the New York adoption decree," by not issuing a birth certificate listing two fathers, Chief Judge Edith Jones wrote for the majority (italics in original).

"Louisiana does not permit any unmarried couples - whether adopting out-of-state or in-state - to obtain revised birth certificates with both parents' names on them," she added. "Louisiana is competent to legislate in the area of family relations, and the manner in which it enforces out-of-state adoptions does not deny them full faith and credit." (Italics in original)

With regard to the issue of equal protection, the court disagreed with Smith and Adar's argument that "Louisiana treats a subset of children - adoptive children of unmarried parents - differently from adoptive children of married parents, and this differential treatment does not serve any legitimate governmental interest," according to the ruling (italics in original).

Jones said Louisiana has a "rational preference for stable adoptive families, and the state's decision to have its birth certificate requirements flow from its domestic adoption law."

Citing research by Child Trends, conducted with support from the Bush administration marriage initiative, the judges said "Louisiana may rationally conclude that having parenthood focused on a married couple or single individual - not on the freely severable relationship of unmarried partners - furthers the interests of adopted children."

An opinion by the five dissenting judges had similar heft. "I lament that, in its determination to sweep this high-profile and admittedly controversial case out the federal door (and, presumably, into state court), the en banc majority: ... Creates a circuit split," Judge Jacques Wiener Jr. wrote for the dissent.

"The FF&C Clause does embody the right of an individual against a state, not the right of the state against the federal government," Wiener continued, using the acronym for the Full Faith and Credit Clause. "The FF&C Clause - even more so than the Commerce Clause or the Contracts Clause - prohibits states from doing that which is 'inconsistent with civil liberty' - here, the Registrar's refusal to recognize the New York decree's establishment of Appellee's rightful status as the legal parents of Infant J."

Since the District Court never made a decision with regard to the plaintiffs' equal protection claim, the 5th Circuit should not have ruled on it, Wiener added. "The only time we should reach an issue that was not first decided in the district court is when such issue presents a pure question of law the 'proper resolution [of which] ... is beyond any doubt,'" Wiener wrote, citing the 2002 ruling in Vogt v. Bd. of Comm'rs of Orleans Levee District (brackets in original).

"Louisiana cannot control the fact that, both in and outside Louisiana, unmarried couples do give birth to children, and they do so with increasing frequency than unmarried couples adopt," the dissent states. "Properly framed, then, the predicate Equal Protection question is, how does Louisiana treat unmarried couples who wish to be named as parents on their biological children's birth certificates?"

Chief Judge Jones was nominated to the bench by President Ronald Regan, as were three others of the nine concurring judges. One was nominated by President George H.W. Bush, four were nominated by President George W. Bush, and one was nominated by President Jimmy Carter.

Judge Wiener Jr. was a nominee of the elder Bush. President Bill Clinton nominated three of the other dissenters, and one was nominated by President George W. Bush.

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