Lambda files Supreme Court cert petition in gay adoption case

by on July 12, 2011  •  In Constitutional law, Supreme Court

Lambda Legal filed a petition yesterday seeking Supreme Court review of a ruling by the U.S. Court of Appeals for the Fifth Circuit en banc (639 F.3d 146) upholding the refusal by Louisiana to recognize a two-parent adoption order from New York. A gay male couple had adopted a child born in Louisiana, and sought to have the birth certificate changed to reflect the boy's new parents, a standard post-adoption action. The state's Registar Office refused to issue the new certificate because of a state policy against issuing an amended certificate if the child’s parents are not legally married.  Another Louisiana law prohibits adoption by two unmarried adults. 

Despite clear law on the point that adoption orders are entitled to full faith and credit, and thus enforcement by other states, the Fifth Circuit held that the Full Faith and Credit Clause only operates as a mandate to state courts, not to state legislatures or state executive officials.

The Supreme Court will not rule on whether to accept the case – Adar v. Smith, State Registrar (docket 11-46) - until it returns from its break in early October. 

More background from SCOTUSblog:

The ruling by the Fifth Circuit, the new petition argued, treats children differently on the basis of the marital status of their adoptive parents.  “This Court,” it said, “has made clear that government discrimination against children based on disapproval of their parents requires careful scrutiny and strong justification.”  Moreover, the petition asserted, the Fifth Circuit has cleared the way for state legislatures and executive officers to disregard out-of-state legal judgments “based on policy assessments about the merits of those judgments.” … 

A valid birth certificate, reflecting parentage and citizenship, the couple has argued, is vitally important to both the child and his parents, as they seek to travel, to place him in school, to arrange for his medical care, to determine his inheritance and insurance rights, to claim him as a dependent for tax purposes, and a variety of other legal and practical opportunities as the boy grows up.  Some of the difficulties that arise without a valid birth certificate have already happened to J.C.’s parents, they noted….

Going to federal court, Adar and Smith made two constitutional claims: first, they argued that the Constitution’s Full Faith and Credit Clause requires states to accept as valid the legal judgments issued in other states, and, second, they argued that singling out unmarried couples for denial of an amended birth certificate is a violation of the Fourteenth Amendment’s guarantee of legal equality.

A federal judge and a three-judge panel of the Fifth Circuit agreed with the first challenge, but that ruling was set aside when the full 16-member Circuit Court agreed to hear the case en banc.   Dividing 11-5, that Court ruled that the Full Faith and Credit Clause only operates as a mandate to state courts, not to state legislatures or state executive officials, and that the federal District and Circuit Courts have no jurisdiction to hear a civil rights claim seeking to enforce the Clause against state officers.

The only way to enforce the Clause, it concluded, is to challenge a state court’s refusal to honor another state’s legal judgment, and then appeal directly to the U.S. Supreme Court.

By a vote of 9-7, the Circuit Court ruled that, even if a civil rights lawsuit could be filed (under so-called Section 1983), that section was not violated in J.C.’s case because state officials have authority to make their own judgments about how and when to issue birth certificates.

And, even though the District Court and the Circuit Court panel did not decide the legal equality claim, the en banc Court rejected it on the merits — again, by a 9-7 vote.  It did so by applying the lowest standard of legal proof for a claim.  In doing so, the majority said that “adoption is not a fundamental right,” and cited a research study that claimed marriage provides a better environment in which to raise children.   Children’s interests, it said, are not well served by “the freely severable relationship of unmarried partners.”

The main dissent, speaking for five judges, argued that the Circuit Court had “trivialized” the Full Faith and Credit Clause, and had wrongly reached out to decide the legal equality issue when two prior courts had not even addressed it.

The couple’s appeal to the Supreme Court raises three questions: first, whether the Full Faith and Credit Clause applies to a state executive official who disregards an out-of-state judgment for policy reasons; second, whether Section 1983 provides a legal route to challenge a violation of the Clause, and, third, whether it violated the Equal Protection Clause to refuse to respect an out-of-state judgment based upon differing treatment of unmarried couples.


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