Jon Davidson

The U.S. Supreme Court on Tuesday (October 11) refused to hear a case that challenged a sort of “back door discrimination” against a gay couple by a Louisiana state official.

The case, Adar v. Darlene Smith, was filed by Lambda Legal Defense on behalf of a gay couple who sought an amended birth certificate for a Louisiana boy they adopted in New York. Couples who adopt children routinely seek amended birth certificates to establish the legal relationship between the parents and the child. Louisiana’s Registrar, Darlene Smith, routinely grants them to heterosexual married couples. But Smith refused to provide Oren Adar and Mickey Ray Smith (no relation to the registrar) with an amended certificate, saying she was barred from doing so by a Louisiana law prohibiting unmarried couples from adopting.

Given that most states do not allow gay couples to marry, the Louisiana law discriminates against same-sex couples and their children in an indirect way. (Adar and Smith lived in New York before that state allowed same-sex couples to marry; they now live in California, which does not currently enable them to marry.) But the inability to obtain an amended birth certificate can have direct consequences, making it more difficult for the parents to verify their family relationship to schools, medical providers, insurers, and even law enforcement and customs officials.

Jon Davidson, legal director for Lambda Legal, said he believes Louisiana’s Registrar would have refused the amended birth certificate even if the gay couple had been able to marry in New York. He notes Louisiana also has a constitutional amendment that bars recognition of same-sex relationships.

“I believe they would say that Louisiana does not recognize their marriage… so that the couple, for purposes of Louisiana law, is still unmarried,” said Davidson. “Their position likely would be that they do not provide amended birth certificates reflecting the names of two unmarried parents and they consider this couple unmarried.”

Lambda had argued that the state official’s refusal to grant the amended birth certificate violated the couple’s right to equal protection of the law, as well as the “full faith and credit” clause of the U.S. Constitution. The “full faith and credit” clause requires that, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Lambda said that covers the state’s Registrar; but, Louisiana argued that it covers only courts and judges, not non-judicial officers. And, in an 11 to 5 vote, the 5th Circuit U.S. Court of Appeals agreed.

By refusing to hear Lambda’s appeal of the 5th Circuit ruling, the U.S. Supreme Court allows that ruling to stand for the three states of the 5th Circuit—Texas, Louisiana, and Mississippi. But Jenny Pizer, legal scholar for the Williams Institute, said the implications are “potentially very substantial.”

“As states continue to diverge—with some offering full equality to LGBT people and others still moving firmly in the other direction,” said Pizer, “interstate questions are likely to proliferate, especially with respect to family issues involving same-sex couples, transgender people, and their children.”

Pizer noted that the U.S. Supreme Court takes only a “tiny fraction” of the cases brought to it each year and that it is also possible the high court will wait until a different circuit court rules differently from the 5th Circuit to take an LGBT-related full faith and credit case.

“But it’s difficult for those affected during that process,” said Pizer, “especially when a new limiting principle newly closes courthouse doors and the needs of parents and children are ignored and, in most instances, ultimately denied.”