Adar v. Smith and birth certificates for a child adopted in another state by a same-sex couples

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Adar v. Smith and birth certificates for a child adopted in another state by a same-sex couples

Post by wardleld on Mon Sep 12, 2011 7:03 pm

In Adar v. Smith, 639 F.3d 146 (5th Cir., 2011), the Fifth Circuit en banc overturned decisions by a circuit panel and a district court that had held that Louisiana’s refusal to issue a new original birth certificate for the Louisiana-born child legally adopted by two unmarried same-sex men in New York violated the Full Faith and Credit Clause. The court held that alleged violation of the Full Faith and Credit Clause do not give rise to §1983 civil rights claims, noting that Article IV imposes duties on courts, the alleged violation of which are reviewed only on direct appeal not in collateral civil rights actions. Failure of a state agency to issue a birth certificate should be heard first in state, not federal court. The Louisiana registrar did not fail to recognize the validity of the New York adoption, but concedes its validity and is willing to recognize one of the men as the father, but Louisiana law forbids recognition of same-sex marriage-like relationships. Recognition of a new domestic status does not require recognition by other states of every incident granted in the first state. Estin v. Estin, 334 U.S. 541 (1948).
These principles applied in Hood v. McGehee, where children adopted in Louisiana brought a quiet title action concerning land in Alabama against their adoptive father's natural children. 237 U.S. 611, 35 S.Ct. 718, 59 L.Ed. 1144 (1915). But Alabama's inheritance law excluded children adopted in sister states. Id. at 615, 35 S.Ct. at 719. The adopted children argued that the Alabama inheritance statute violated the full faith and credit clause. The Supreme Court disagreed, holding that there was “no failure to give full credit to the adoption of the plaintiffs, in a provision denying them the right to inherit land in another state.” Id. Justice Holmes wrote that Alabama “does not deny the effective operation of the Louisiana [adoption] proceedings” but only says that “whatever may be the status of the plaintiffs, whatever their relation to the deceased ... the law does not devolve his estate upon them.” Id.
Just as the Court in Hood did not find full faith and credit denied by Alabama's refusing certain rights to out-of-state adoptions, so here full faith and credit is not denied by Louisiana's circumscribing the kind of birth certificate available to unmarried adoptive parents. Adar, 639 P.3d at 159. Sister state judgments “can only be executed in [Louisiana] as its laws may permit. Id. at 160, citing Fall v. Eastin, 215 U.S. at 12.
Similarly, the full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. Forum state law governs the incidental benefits of a foreign judgment. In this case, Louisiana does not permit any unmarried couples—whether adopting out-of-state or in-state-to obtain revised birth certificates with both parents' names on them. See LA.REV.STAT. ANN. § 40:76; LA. CHILD. CODE ANN. arts. 1198, 1221. Since no such right is conferred by either the full faith and credit clause or Louisiana law, the Registrar's refusal to place two names on the certificate can in no way constitute a denial of full faith and credit. As in Rosin where Illinois had the right to force the sex offender to register even if the New York judgment provided to the contrary, Louisiana has a right to issue birth certificates in the manner it deems fit. Louisiana is competent to legislate in the area of family relations, and the manner in which it enforces out-of-state adoptions does not deny them full faith and credit.
Id. at 161. The court rejected plaintiff’s equal protection claim noting that adoptive children of unmarried parents do not constitute a suspect classification, the state’s interest in providing a stable, nurturing environment for adopted children, and evidence of the advantages of married parents for children justified the Louisiana rule. Eleven judges joined or concurred in the majority opinion; five judges dissented.
A petition for review by the Supreme Court is pending (as of September 12, 2011).
Posted 12 Sept. 2011 by Lynn Wardle (wardlel@law.byu.edu)

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