This story begins when a gay male couple adopted a child who happened to have been born in Louisiana. Oren Adar and Mickey Ray Smith completed their adoption in New York, which permits two men to adopt a child. Having finished the procedure they were, in the eyes of the law, the legal parents of their son. Because of the Full Faith and Credit Clause, that status–gained via a court order–must be recognized by other states. (A recent opinion from Florida confirms this.)
Adar and Smith want a new birth certificate for their child, one that reflects their status as legal parents. This is an ordinary post-adoption request. Since the child was born in Louisiana, the new birth certificate would have to be issued in Louisiana. Louisiana undoubtedly does this routinely in most cases.
But while Louisiana is obliged to recognize the adoption, it would not itself permit two men to adopt. Louisiana is a state that prohibits unmarried couples from adopting. And Louisiana would really rather not issue a birth certificate to a couple who it would not have allowed to adopt
So here begins the legal action. The United States District Court ordered Louisiana to issue the birth certificate. The Fifth Circuit stayed the ruling. The appeal is pending. While all this is happening, the legislature decided to leap in, considering a law that bars issuance of a birth certificate listing members of an unmarried couple as adoptive parents.
This past week the bill passed its penultimate legislative hurdle, moving out of a state senate committee by a single vote. According to some of its proponents the bill reaffirms Louisiana’s ability to govern its own records procedures and hence, has more to do with state’s rights than with gay rights. But it is quite clear that Louisiana’s interest in asserting its rights arose only when confronted with a gay male adoptive couple. And the state senator introducing the bill views it as a “family values” issue.
I imagine the bill will pass the state legislature and it will surely be signed by the Governor. That will return the focus of attention to federal court. It’s not at all clear to me that the bill adds any weight to the state’s previous argument that it should not have to issue the birth certificate.
Given the increasing disparity in treatment of lesbian/gay/unmarried couple adoptions by the states, the uniformity in the court opinions typified by that recent Florida case is notable. An adoption is a judicial proceeding resulting in a court order. All states must accord that court order the same effect it would be accorded in the issuing state. If it make Adar and Smith legal parents in New York, than it makes them legal parents in Louisiana. It’s not at all clear to me how Louisiana can defendat its willingness to issue some, but not all, legal adoptive parents new birth certificates.
Perhaps the strongest perspective from which to make the plaintiffs’ case is that of the child. Imagine two children, both lawfully adopted in New York, one adopted by a married couple and one adopted by an unmarried couple. One will get a new birth certificate, the other will not. Why are they treated differently? Because of the marital status of their parents. I suspect most courts will see that as a problematic basis for differential treatment. Stay tuned.