This is not a tax case. It is a case involving a same-sex couple and their adoption, in New York, of a child who had been born in Louisiana. The couple requested that the child’s Louisiana birth certificate be changed in accord with recognition of their out of state adoption. The state registrar refused.
The parents, Oren Adar and Mickey Smith, sued in federal district court and the judge agreed with the parents, holding that failure to issue the new birth certificate violated the official’s obligations under full faith and credit. The state appealed to the Fifth Circuit Court of Appeals which upheld the decision below. But then a motion for rehearing en banc was granted and, in April 2011, the en banc panel reversed the decision. Plaintiffs petitioned for review by the Supreme Court and today that certiorari petition was denied.
So what’s at stake here? Many people assumed that “full faith and credit” should always result in the recognition of adoptions by same-sex couples even in states that would not allow such adoptions under the law of that state. And, we have an opinion from another federal appellate court that applies full faith and credit analysis to strike down an Oklahoma state law that denied recognition to same-sex couple adoptions, a statute that had been relied upon to deny issuance of a new Oklahoma birth certificate to a child adopted out of state. See Finstuen v. Crutcher (10th Cir. 2009).
But the Fifth Circuit held that “full faith and credit” is not an individual right that can be enforced in federal court, suggesting that the Tenth Circuit should not have reached that issue. Basically the Fifth Circuit told the parents that they should have sued in Louisiana courts rather than in federal court and, if they didn’t get what they wanted there, they could petition for review by the U.S. Supreme Court. The court also said that under full faith and credit, Louisiana could not deny the validity of the New York adoption, but they could decide how to treat such adoptions under Louisiana law. In other words, while claiming that the full faith and credit issue should not have been litigated in federal court, the court nonetheless opined that there had been no violation because the state registrar claimed that she did in fact recognize the adoption, and merely decided that, under Louisiana law, this sort of adoption was not entitled to a new birth certificate. Why? Because Louisiana law would not allow a joint adoption by a same-sex couple and so it would be against that state’s public policy to treat such an adoption the same as adoptions that the state did approve.
While this case only raised the question of the child’s right to have a birth certificate that reflected the legal parentage of both parents, one can only wonder what other sorts of “different treatment” might be accorded by the state of Louisiana to children who have been legally adopted by same-sex partners. Can the child sue for wrongful death if one of the parents is killed in Louisiana? Will the state tax law recognize the child as a dependent of one of the adoptive parents?
Regardless of the “full faith and credit” analysis, this difference in treatment, depending on parental status, raises a serious equal protection claim under the federal constitution. The Fifth Circuit, however, did not spend much time on the equal protection claim, readily finding that Louisiana’s preference for stable heterosexual married couple adoptions was sufficient justification for treating this child differently and denying the birth certificate.
I am stunned that the U.S. Supreme Court refused to consider the equality issue. The patchwork of state laws regarding adoption by same-sex couples makes it uncertain how children will be treated from state to state. There are at least 8 states that currently refuse to recognize second parent adoptions of the sort at issue in this case. With no guidance from the Supreme Court and with the Fifth Circuit opinion as the only direct authority on the equality issue, this leaves many children inadequately protected by state family law. Our children deserve better.
