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.