Several times over the last few years I have written about a case that started in Louisiana. You can read back from that post to get the details, but I’ll repeat them in brief.
A gay male couple, Oren Adar and Mickey Smith, adopted a boy who was born in Louisiana. (The joint adoption was completed in New York.) Adar and Smith wanted (and needed) a birth certificate with their names on it. Louisiana would not issue the birth certificate.
It’s not that Louisiana doesn’t issue new birth certificates on completion of adoptions–it does. But Louisiana would not have permitted this adoption–it’s one of the states that only allows married couples and single individuals to adopt. (This restriction conveniently bars all lesbian and gay couples from adopting, since they cannot be married in Louisiana.) And so Louisiana does not want to give this particular couple a new birth certificate.
Adar and Smith won their case in the district court and they won their case before a panel of the United States Court of Appeals for the Fifth Circuit. Now the Fifth Circuit has agreed to hear the case en banc. It’s hard for me to see much good in this.
I know that a number of people who visit the blog find it troubling that states issue new birth certificates after adoption. There’s been a lot of discussion about that. I’d ask that you just set those concerns aside for the moment.
Instead, think about this case as one focusing on differential treatment. If a state issues new birth certificates upon completion of adoption can they do so for some adoptions but not all adoptions? In particular, can they do so for adoptions from within Louisiana and not for adoptions in other states?
I think it is fairly clear that the Full Faith and Credit Clause of the United States Constitution answers this question. Louisiana is obliged to treat a New York adoption just as it would a Louisiana adoption. If it issues a new birth certificate after a Louisiana adoption, it must do the same after a New York adoption. It cannot pick and choose among New York adoptions and it cannot reject all New York adoptions.
That said, I do wonder why the en banc hearing was granted. If you read the panel opinion (which was 3-0) you’ll see a couple of other issues that were raised by the state. These are more technical and are beyond the scope of the blog, but I’m frankly surprised that the state garnered the votes for the en banc rehearing. It’s a case worth watching. Argument is the week of January 17.