HRC Blog

Fifth Circuit Denies Constitutional Protections to Unmarried Adoptive Parents

This post comes from HRC staff attorney Aaron Welo.

In a disappointing ruling issued yesterday, the U.S. Court of Appeals for the Fifth Circuit ruled that the Full Faith and Credit Clause of the U.S. Constitution, which generally requires one state to give effect to the legal proceedings of another states, does not protect the right of an unmarried same-sex couple to have their adopted child’s birth certificate reissued with both of their names on it.  The court also ruled that the couple’s right to equal protection of the laws had not been violated and ordered the case dismissed.

Mickey Smith and Oren Adar legally adopted Louisiana-born “Infant J” in New York in 2006 and then sought to have his birth certificate reissued in Louisiana replacing the names of his biological parents with their own.  The Registrar of Vital Records and Statistics refused their request and took the position that “adoptive parents” in Louisiana law means only married parents.  Instead, she offered to place one of their names on the birth certificate since Louisiana allows single-parent adoption. Represented by Lambda Legal, Smith and Adar filed suit in federal court, arguing that her action denied full faith and credit to the New York adoption decree and equal protection to them and Infant J.

In December 2008, a federal district court ruled in favor of Smith and Adar on their full faith and credit claim and ordered Louisiana to provide a new, accurate birth certificate for their child. Louisiana officials appealed and a three-judge panel of the Fifth Circuit upheld the lower court’s decision, concluding that Louisiana law required the registrar to issue the new birth certificate including both Smith and Adar.  At Louisiana’s request, an en banc panel of sixteen judges of the Fifth Circuit then reheard the case, leading to today’s decision.

In an opinion authored by Judge Edith Jones, the majority of the en banc panel ruled that the plaintiffs were not entitled to sue for their full faith and credit rights, and that even if those rights existed, they could be ruled on only by the United States Supreme Court.  Additionally, the court ruled that even if Smith and Adar were entitled to bring that claim, those rights were not denied in this case because Louisiana was not refusing to recognize the New York adoption, only to issue a birth certificate with both parent’s names on it.

Smith and Adar’s claim for a violation of their right to equal protection under the Constitution was also rejected by the majority.  The court disagreed that Louisiana’s policy treated the children of unmarried parents differently than those of married parents without this serving any governmental interest, concluding that the state had adopted a “rational preference for stable adoptive families” that justified the discriminatory law.

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