Today, without comment, the U.S. Supreme Court declined to hear a case challenging Louisiana's policy that prevents unmarried adoptive parents from both being listed on a child's birth certificate. In this case, Adar v. Smith, a gay couple, Oren Adar and Mickey Smith, had adopted a child and were told by the registrar -- Darlene Smith -- that both men could not be listed on the birth certificate.
Although they had won at the trial court and on their initial appeal, a full panel of the U.S. Court of Appeals for the Fifth Circuit had reversed the decision. The couple were represented by Lambda Legal, which had sought review of the case by the Supreme Court earlier this year.
Kenneth D. Upton, the supervising senior staff attorney in Lambda Legal's South Central Regional Office in Dallas, said in a statement, "By denying this writ, the Supreme Court is leaving untouched a dangerous Fifth Circuit Court of Appeals ruling that carves out an exception to the Full Faith and Credit Clause of the U.S. Constitution and to the uniformly recognized respect for judgments that states have come to rely upon.
"This decision leaves adopted children and their parents vulnerable in their interactions with officials from other states. More particularly, this decision leaves a child without an accurate birth certificate listing both his parents," Upton said. "This issue now moves into the legislative arena. We need to push for a change in Louisiana state policy in order to stabilize and standardize respect for parent-child relationships for all adoptive children."
Lambda Legal received assistance in the case from Paul Smith of Jenner & Block in Washington, D.C., and Regina O. Matthews and Spencer R. Doody of Martzell & Bickford in New Orleans.
For law dorks, read below the jump for a selection from Lambda Legal's certiorari petition addressing the circuit conflict that it saw created by the Fifth Circuit en banc opinion.
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From the Lambda Legal cert petition:
The Fifth Circuit’s holding that the Full Faith and Credit Clause applies only to state courts creates a direct conflict among the circuits. It conflicts with the Tenth Circuit’s decision in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), which held that Oklahoma state executive officials violated full faith and credit by refusing to recognize a California judgment of adoption.
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In Finstuen, a same-sex couple residing in California had adopted a child born in Oklahoma. The adoptive parents had requested an amended birth certificate listing them as parents from the Oklahoma State Department of Health (OSDH). OSDH refused their request based on an Oklahoma statute prohibiting state officials from recognizing an adoption judgment designating a same-sex couple as parents. 496 F.3d at 1142.
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The Fifth Circuit’s decision here conflicts directly with the Tenth Circuit’s holding in Finstuen. The plaintiffs in both cases sued state executive officials under the Full Faith and Credit Clause for refusing to recognize out-of-state judgments of adoption. While the Tenth Circuit held that state officials had violated the Constitution, the Fifth Circuit reached the opposite result because it interpreted the Full Faith and Credit Clause as applying only to state courts. Although the Fifth Circuit en banc majority attempted to diminish the clash with Finstuen by describing that case as concerned with a “state non- recognition statute, a problem different than the one here,” the dissenters forcefully demonstrated that the majority’s holding in this case is “in undeniable conflict with the Tenth Circuit’s opinion,” Pet. App. 77a-78a (Weiner, J., dissenting; internal quotation marks omitted). As the dissenters explained, the Louisiana Registrar’s “uncodified policy of categorically rejecting ... one subset of out-of-state adoptions violates the FF&C Clause in precisely the same way as did the now-stricken Oklahoma non-
recognition statute.” Pet. App. 78a.