Quick Notes in a Time Bind–LA Birth Certificate Case Yields Bad Decision

It’s that point of the semester when time is in unbelievably short supply.  Anyone want to write a civ pro exam?   So I’m late getting this up here, but procrastination may have served me well. 

You may recall the Louisiana birth certificate case I have blogged about from time to time?  It’s a measure of how long I’ve been at this that I’ve now written about three levels of court decisions.   You can find the previous posts here and catch up, should you wish to.  (You’d really need to read them from the bottom up to go in chronological order.)  

Here’s the capsule of the case:  Oren Adar and Mickey Smith are a gay male couple.   They adopted a child who had been born in Louisiana.   The adoption could not be completed in Louisiana because Louisiana doesn’t allow unmarried couples to adopt, nor does it allow two men to marry.  The adoption was properly completed in New York.  Once that was done, Adar and Smith sought a new birth certificate from Louisiana, reflecting their status as legal parents of the child.   Louisiana refused to issue the birth certificate on the grounds that it would not have permitted the adoption. 

Now I know that many people have strong feelings about what birth certificates should and should not say/do.   But I’d ask you to put aside what you think they ought to do for a moment, please.   It is undisputed that Louisiana (like every other state) routinely issues new birth certificates when an adoption is completed.   That general question–whether a new certificate should be issued–isn’t what’s at stake here.   

There’s another controversial topic not at issue here:  whether Louisiana is allowed to prohibit unmarried couples from adopting.  Louisiana’s prohibition is taken as a given–it is not challenged by Adar and Smith and they did not adopt in Louisiana. 

What’s at issue is whether Louisiana has to give full faith and credit to the New York state court judgment that finalized the adoption and what it means to give full faith and credit.   (Article VI of the US Constitution is where you’ll find the Full Faith and Credit Clause.)   Adar and Smith asserted that the FFC (as it is called) required Louisiana to treat the NY order just as it would treat one of its own court orders.  Since Louisiana routinely issues new birth certificates after a Louisiana court finalizes and adoption, plaintiffs argued it had to do the same after a NY court finalized the adoption. 

Plaintiffs won in the trial court.  Plaintiffs won before a three judge panel of the Fifth Circuit.   There wasn’t much reason to be optimistic, though, when entire court, sitting en banc, agreed to review the matter.   That court issued its opinion(s) earlier this week and indeed, plaintiffs lost.  

The opinion is long and complicated and turns less on family law principles (like who can adopt) and more or technical legal questions (like how does one enforce the FFC).   The best I can do for the moment is to point you towards this analysis by Professor Arthur Leonard.   I agree with Professor Leonard that the majority is wrong for any of a number of reasons.  As time permits I will organize my own thoughts and post again.   For the moment, second-hand is the best I can do.


10 responses to “Quick Notes in a Time Bind–LA Birth Certificate Case Yields Bad Decision

  1. Why not just get New York to issue a new birth certificate?

    • The child was not born in New York and so NY cannot issue a birth certificate. This is something the law could perhaps be changed to allow, but it does not currently do so. You complete an adoption and then go back to the state where the child was born for a new certificate. Were the parents a married different sex couple, Louisiana would clearly have issued the birth certificate.

    • I was wondering the same thing. It seemed wierd to me that you could change the name of the parent on the birth certificate but not the place of birth.
      However, thinking about it I realize that New York can’t provide a new birth certificate for the child unless Louisiana withdraws theirs, because then the kid would have two different birth certificates. (And Louisiana would only withdrae theirs if they were issueing a new one.)

      • It might be worth reading a little bit of the earlier discussions on birth certificates: https://julieshapiro.wordpress.com/2010/02/25/an-observation-about-birth-certificates/

        They are peculiar documents. Some things on them (like place of birth as well as date and time) are records of historical facts. These cannot be changed later. But the listing of “parent” (or whatever term is used) is not a listing of historical fact. The designation of parent is a statement about what person is legally recognized as a parent. Thus, it’s totally routine to get a new birth certificate upon adoption listing the adoptive parents. By contrast, you cannot change the place of birth.

        I realize this is odd and there are historical explanations. The key thing for me, for the moment at least, is that this is all pretty well settled and understood.

        New York will not issue a new birth certificate for a child unless the child was born in NY. WA will only issue a birth certificate for a child born in WA. When an adoption is completed in a different state from that in which the child was born, standard practice is to send a certified copy of the final court order to the state of birth and get a new birth certificate issued. (The old ones are typcially sealed.) This case is treated differently from the ordinary case.

  2. And, what documents does an adoption produce? An adoption certificate? Shouldn’t FFC mean that NY is not allowed to overrule the Louisiana parenting order?

    • An adoption ends in something like an adoption decree–an order signed by a judge that says that the adoption is completed or something like that. I’m sure local forms vary.

      There is no Louisiana order of any sort, or at least generally would not be. There’s a complicated system in place that allows a child to be taken from one state to another for adoption–the ICPC, I think it is called. It’s a pretty common occurance–child born in one state, adoption completed in a different state.

  3. I’m going to comment on my own post to add one detail. I don’t actually know what sort of birth certificate the child in this case currently has–I will try to find out. It may well be a birth certificate listing one of the two men. (Louisiana has no objection to a single person adopting.)

    • Talking to myself for a moment–apparently the men refused a birth certificate showing only one of their names so the likely have a birth certificate showing the original mother on it (unclear if there is a second name), although she no longer has any legal status as a parent.

  4. Do you think the convoluted reasoning to avoid the FCC order is but a cover for gay prejudice?

  5. The child has the right to have their biological parents listed. Both of them. If thats what they want. Or their adoptive parents, if thats what they want. It should be the child’s decision. And it cannot be irreversible

    I think the best solution is to have the form have as many lines as are needed, multiple lines, for a child’s two biological parents, their adoptive parents, etc.

    Any time any information is deleted, there will be problems. The legal system does not have jurisdiction over the life sciences, you know what I mean? Or over people’s tendency to be curious about and often, also identify with, their BIOLOGICAL parents.

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