Kenneth Upton

A federal circuit court heard arguments January 19 in a case that asks whether states must recognize adoptions by same-sex parents from other states—and the outcome could have “frightening” implications for the rights of adoptive parents, according to one of the attorneys arguing the case.

The case, Adar v. Smith, involves the refusal of Louisiana State Registrar Darlene Smith to issue a new birth certificate to a child born in Louisiana in 2006 but adopted in New York by a gay couple, Oren Adar and Mickey Smith. The men had requested a new birth certificate naming them both as parents—a common procedure for children adopted outside their birth states.

The registrar refused the new certificate, saying she was acting on an opinion from Louisiana Attorney General Buddy Caldwell, who said Louisiana does not owe full faith and credit to the New York adoption judgment because it violates Louisiana’s public policy of not allowing joint adoptions by unmarried couples.

The men, assisted by Lambda Legal Defense and Education Fund, filed a lawsuit in a federal district court. They argued that the registrar’s decision violated the Full Faith and Credit Clause and Equal Protection Clause of the U.S. Constitution.

Without the revised birth certificate, the men testified, it had been difficult for Smith to add their son to his health insurance. The couple also had difficulties with airline personnel, who suspected they might be kidnapping the child.

The district court ordered the registrar to issue a new birth certificate identifying both men as the boy’s parents. The state appealed to the 5th Circuit Court of Appeals, but a three-judge panel affirmed the district court ruling.

The Louisiana attorney general then appealed to the full Court of Appeals.

The oral argument before the full court was less about the merits of the case and more about whether it was indeed a federal case and whether the plaintiffs have the standing to bring it.

The state’s attorney, Stuart Kyle Duncan, argued that the Full Faith and Credit Clause is just a command to state courts not to re-litigate a case and that the clause cannot be used to secure an individual right. He also contended that the gay couple and their child did not suffer sufficient injuries to bring the case.

Lambda attorney Kenneth Upton argued that the his clients’ Full Faith and Credit claim is a federal claim under Section 1983 of Civil Rights Act of 1871, which allows people to sue in federal court if they feel their Constitutional rights have been violated by someone acting under state authority. And he told the 5th Circuit that the registrar’s refusal to issue a birth certificate, in itself, is a sufficient injury, because it “creates a significant barrier” to things like enrolling a child in school or health insurance.

In two similar previous cases, in Mississippi (2003) and Virginia (2005), state courts ruled that the state must give new birth certificates to children adopted by out-of-state same-sex couples. In the Mississippi case, the plaintiffs did not make any federal constitutional claims. The plaintiffs in Virginia did, but the court decided the case solely based on Virginia statutes.

In 2007, however, the U.S. 10th Circuit Court ruled that an Oklahoma law refusing to recognize adoptions by same-sex couples was unconstitutional, a case that Upton believes “provided a clear statement of what the law requires in a substantially similar factual setting.” That case, he said, was one of the reasons they filed the Adar case in federal court.

Upton said both Lambda and Louisiana have indicated they might seek review from the U.S. Supreme Court if they get an adverse opinion from the full 5th Circuit, but much, he said, will depend on the circuit court’s opinion and its reasoning.

The registrar’s claim has “frightening implications,” said Upton. “If a registrar can ignore an adoption for the purpose of issuing a birth certificate,” he said, “then can a law enforcement agency ignore your adoption for the purpose of reporting a kidnapped child, or letting you claim a found child? Can a medical provider . . . just refuse to recognize you as a parent and not let you direct a child’s treatment?”

“Even though it may seem like it’s only about a birth certificate here,” said Upton, “if state officials can disregard your parental rights for a birth certificate, what else is on the table?”