Ken Upton

Lambda Legal Defense is taking its fight for same-sex families to the U.S. Supreme Court.

The case, Adar v. Darlene Smith, involves a gay male couple—Oren Adar and Mickey Ray Smith—who sought an amended birth certificate for the boy they adopted in the state of New York. The boy was born in 2005 in Louisiana, so the couple had to seek an amended birth certificate from the state of Louisiana. Revised birth certificates identifying a child’s adoptive parents are often needed to verify family relationships to schools, medical providers, insurers, and even law enforcement officials.

Although Louisiana has a statute that entitles an adopted child to receive a revised birth certificate with the names of their adoptive parents, the state’s registrar and director of vital records, Darlene Smith, refused to issue one for the gay couple’s son. Registrar Smith said she could not do so because the state also has a law prohibiting unmarried couples from adopting.

The 5th Circuit U.S. Court of Appeals agreed with the state, ruling that the U.S. Constitution’s “full faith and credit” clause does not require a state official to accept the legitimacy of an adoption granted in another state.

The legal question is whether a state’s “public policy”—in this case, a public policy against allowing unmarried couples to adopt—trumps the U.S. Constitution’s “full faith and credit clause.” In its petition to the Supreme Court, Lambda also urges that Louisiana’s treatment of the Adar-Smith family violates the equal protection clause.

Gay legal activists have long expected the issue of the “full faith and credit” clause to come up in a gay-related case before the U.S. Supreme Court, but most probably expected it would be on a case involving one state’s refusal to recognize a marriage license granted by another state.

Instead, notes Lambda, the issue is coming before the court in a case involving the rights of a child.

“Louisiana may not treat adopted children themselves differently based on the marital status of their legal parents,” said Ken Upton, the Lambda attorney representing the couple out of Lambda’s South Central Regional office in Dallas. “We have long since abandoned the notion that the government can punish children to express disapproval of their parents or their families.”

In its petition to the Supreme Court, filed July 11, Lambda says non-judicial officials of a state should not be able to deny rights to a child by selectively disregarding court judgments issued in other states “based on policy assessments about the merits of those judgments.” And it said the 5th Circuit majority was wrong to say that only state courts—not state officials—owe full faith and credit to court rulings in other states.

Lambda also argues that the 5th Circuit majority “plainly analyzed the wrong statute” in rendering its decision. Adar v. Smith, it says, was not a challenge to Louisiana’s law barring adoption by unmarried couples. It was a challenge to the state’s law concerning vital records.

“The two are not the same,” writes Upton in the petition. “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.”