Ken Upton

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

The U.S. Supreme Court on Monday, February 22, declined to review the appeal of a lesbian mother, identified as Kristina S. in Texas, who sought to prevent her former domestic partner, Charisma R. in California, from continuing her parental relationship with a child they had together. By not hearing the case, the high court simply left intact decisions by the courts of California that upheld the non-biological mother’s rights. But the California court ruling held that the non-biological mother’s parental status was established by the fact that she helped prepare for the child’s birth through insemination, “held herself out” as the child’s mother publicly, and helped care for the child after it was born.

Gay family law expert Nancy Polikoff described the California Court of Appeals decision last year as “the clearest and most comprehensive analysis of why U.S. Supreme Court cases on parental rights do not foreclose Charisma’s parentage and actually protect a person designated as a parent under state law, as Charisma was in this case.” While the decision of the Supreme Court not to take the case has no important legal value, she said, “it can’t help but add the tiniest bit of ‘oomph’ to” similar conflicts in other states.

Kristina S. v. Charisma R. was appealed by the biological mother’s attorneys from the right-wing Liberty Counsel. The Liberty Counsel has also been representing former lesbian Lisa Miller against her former civil union partner Janet Jenkins in a highly publicized custody battle between Vermont and Virginia. The Liberty Counsel tried unsuccessfully to appeal Miller’s case to the U.S. Supreme Court also—and was also denied review in that case. The Miller-Jenkins custody battle continues, with Miller having disappeared with the daughter in order to avoid a Vermont court order that she transfer custody to Jenkins. A Virginia court of appeals on February 23 rejected her third lawsuit to have the Vermont custody orders nullified.

Meanwhile, the Liberty Counsel filed a friend-of-the-court brief in another important case this month.

On February 18, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit –which covers Texas, Louisiana, and Mississippi– upheld the right of a gay couple from California to obtain an amended birth certificate for a Louisiana-born child they adopted in New York State five years ago. The state of Louisiana had refused to issue the routine amended birth certificate, claiming that to do so would be tantamount to allowing adoptions by unmarried couples, which is barred by state law there.

Ken Upton, Supervising Senior Staff Attorney for Lambda Legal Defense and Education Fund, which represented the gay couple, said the court simply ruled the way courts have ruled on similar matters in “tons of cases over the last century.”

“But it was a landmark in Louisiana,” he said, “because [the state] tried to argue that they should have some special exemption from the [U.S. Constitution’s] ‘full faith and credit’ clause because it violates a policy they would like to enact to restrict the rights of gays and lesbians.”

The U.S. Constitution’s “full faith and credit” clause states, “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

In this instance, said the judges, Louisiana owed full faith and credit to a judicial proceeding from New York, which granted the gay couple the adoption. The panel made clear that it was applying the full faith and credit requirements to court judicial proceedings in this case, not to New York state laws concerning adoption.

The judges—which included two Republican appointees—was unusually harsh in its characterization of Louisiana’s defense of its actions, saying the state’s argument was a “shallow, circular attempt” to conflate a judgment and a statute as the same thing.

“Whether the New York adoption contravenes Louisiana’s ‘public policy’ [of barring adoptions by unmarried couples] is simply irrelevant and immaterial,” said the panel. The “plain language of Louisiana’s own statute requires that a new, corrected birth certificate be issued to Louisiana-born adopted minors and their adoptive parents…,” wrote the panel, and “that requirement must be applied in an ‘evenhanded’ manner.”

The case, Oren Adar v. Darlene Smith, involved a gay male couple – Oren Adar and Mickey Ray Smith— who sought an amended birth certificate for a boy born in Louisiana in 2005. They jointly adopted the child in the state of New York that same year. Darlene Smith is the Louisiana state registrar and director of vital records, who was represented by the state attorney general’s office.

The gay couple applied in Louisiana for the birth certificate listing each of them as a parent of the child and indicating the child’s new legal name. But Darlene Smith refused to issue the certificate, saying state law prohibited unmarried couples from adopting children.

Polikoff agreed with Lambda’s Upton that the 5th Circuit decision “restates what the U.S. Supreme Court has said continuously, that there is no ‘public policy’ exception to the Full Faith and Credit Clause.”

“Judgments from a state court are different from a state’s statutes,” explained Polikoff, in her beyondstraightandgaymarriage.com blog. “Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union [in another state], for example, Louisiana might not have been required to recognize their dual parentage. It’s a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.”

Liberty Counsel founder Mathew Staver has said cases such as this, although they involve adoption, provide a “back door” entrance to marriage equality.

“It’s not generally a direct, head-on, frontal assault with regards to same-sex marriage,” he said in a statement about the Adar case last year when the Republican appointed district court judge ruled for the gay couple. “But the fact is, if a sister state is required to recognize same-sex adoption, even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

In its opinion, the 5th Circuit panel noted that only one other federal appeals court has dealt with a similar case. The 10th Circuit, it noted, ruled the state of Oklahoma’s law barring same-sex couples from adopting children from other jurisdictions had violated the full faith and credit clause.

Lambda’s Upton said he has heard Louisiana will appeal the decision, either to the full 5th Circuit bench or to the U.S. Supreme Court.

But for now, he said, “we’re pleased the court agrees that it’s wrong to punish children just because the Registrar doesn’t like their parents.”