Some time ago I discussed a case in Louisiana. (There’s two posts about the topic. I linked to the first.) Here’s an update on the case. It actually ties into several threads.
A gay couple (Oren Adar and Mickey Ray Smith) adopted a child. Original news reports led me to believe that the adoption was in California, which is where they now live, but this story says it was New York. No matter, really. The key points are that they adopted a child together under the laws of whatever state it was and that the child had been born in Louisiana. The place the child was born matters because only the state where the child was born can issue (or amend) the birth certificate.
Now birth certificates are curious things, as that earlier post notes. Many people reasonably think that they record a historical truth–and at the very least they should initially record the name of the woman who gave birth to the child. But in fact, people’s names may end up on a birth certificate in a variety of ways and so sometimes they may only reflect some wish on the part of the people present at the time the child was born.
Many people may not know that birth certificates are amended after adoptions to reflect the names of the adoptive parents. (The original records are typically, if not always, sealed.) So the current birth certificate for a child who has been adopted does not show who gave birth to the child but it does show who the child’s legal parents are. Birth certificates are routinely used by many entities, from school districts to the state department to the local soccer league, to document who the parents of a child are.
All this being the case, Adar and Smith quite reasonably wanted a new birth certificate for the child that listed them both as parents. And only Louisiana could provide the certificate.
This is where the trouble lies. Adar and Smith would never have been allowed to adopt in Louisiana. Louisiana is one of those states that has a law that provides that only individuals or married couples can adopt. This type of restriction seems to be all the rage, these days, largely as a cover for restricting the adoption rights of lesbian and gay couples. (Lesbian and gay couples cannot legally marry in the vast majority of the states, Louisiana included.)
This is tied into the issue I have called portability of parenthood. Having properly completed their adoption Adar and Smith are legal parents. They’d like to be (and they’re entitled to be) recognized as such when they travel. They are entitled to be recognized as legal parents when they register their kid for school or seek a passport. For all this, they need that birth certificate.
The court here ruled that they are entitled to the birth certificate and ordered Louisiana to issue one within 15 days. That’s consistent with other decisions from other courts. (This does not mean that Louisiana cannot have a restrictive law on adoption. That’s not at issue in this case. It simply means that where some other state has approved legal parentage for people, Louisiana must issue a birth certificate that reflects that ruling. The general view is that this is required by the Full Faith and Credit Clause of the United States Constitution.
(There are really two slightly separate issues, I suppose. One is does Louisiana have to recognize them as parents. The second is does Louisiana have to issue the birth certificate. This case quite clearly decides the second question, but perhaps it also decides the first–that certainly seems to be the view of the assistant attorney general defending the state.)
The state plans an appeal and has sought a stay in the meantime. Additionally, a new bill will be in introduced in the legislature making it illegal to issue a birth certificate to anyone who did not satisfy Louisiana’s adoption laws. It’s hard to believe that the Louisiana legislature doesn’t have better things to do with its time. (But then, didn’t Governor Jindal turn down the stimulus funds, too? Maybe there is no economic crises in Louisiana.) Were the bill to become law it would create a nice little Full Faith and Credit Clause problem.
1 response so far ↓
JohnC // May 16, 2009 at 7:34 pm |
This seems like an unfortunate political stunt, because legislation like that up for consideration wouldn’t stand a chance in under the Full Faith and Credit Clause.
I’m sure Louisiana would argue that this has nothing to do with recognizing a judgment in another state, but rather state regulation of its own functions, such as issuing birth certificates. But I can’t imagine a federal court permitting a blatant end run like this around the FFCC. If it does, the FFCC would effectively become meaningless in most settings, as states would find ways to defund acts that would emanate from “recognition” of judgments from other states.