In 2006, Oren Adar and Mickey Smith, a same sex couple, adopted an infant in New York State. Under an adoption decree, a judicial proceeding, both men are the legal fathers of the infant; however, the infant was born not in the State of New York, but the State of Louisiana. Louisiana has refused to reissue the birth certificate for the child in a manner that reflects the legally valid, court issued adoption decree, by refusing to list both men as parents on the birth certificate. After losing at both the Federal district court and the Court of Appeals, the state asked for the case to be reheard en banc by the 5th Circuit and yesterday, a majority of the 16 judge panel that heard the case en banc sweepingly overturned the rulings that would have required the state to list both fathers on the birth certificate and set new precedent breathtaking in its potential implications beyond the applicability to this particular case.
The case is rather complex so I'm trying to simplify the explanation of it as best I can while conveying the impact and implications of the ruling by the nine judge majority and the response by the five dissenting judges. There were also 3 concurring opinions, one of which dissents in part.
The ruling by the 5th Circuit does not touch the New York adoption decree. It has no affect on the legal paternity of the child. Both men still are the legal parents of the child; however, the court ruling denies to them the legal document known as a birth certificate confirming that status. Why? Well, the United Talibangical Parishes of Louisiana has a law that only married couples may jointly adopt a child. The registrar of vital statistics is relying upon that law in interpreting another state law on the amendment of birth records to deny listing both fathers. That law states that the registrar "shall make a new record...showing...the names of the adoptive parents" (emphasis added). Under her interpretation, the term "adoptive parents" must mean the parents are married to each other and that marriage must be recognized under Louisiana law. Translation: Gays, geaux fuck yourselves.
Under the U.S. Constitution, based on a clause in Article IV, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." (emphasis added) For our purposes, in brief, every state is required to give affect to the judicial ruling of every other state and this is a binding requirement which states may not violate with respect to court judgments (i.e. judicial Proceedings) except under vey rare circumstances. As I noted earlier, the adoption occurred in New York and a New York court in good standing issued an adoption decree, a judicial proceeding within the scope of the FF&C Clause.
The Louisiana registrar claims, and the 5th Circuit agrees, that she is giving full faith and credit to the adoption decree. She says she is recognizing that both men are the legal fathers, but that she is still barred from issuing a birth certificate that reflects that by her interpretation of state law. The court amazingly contends that "[t]here is no legal basis on which to conclude that failure to issue a revised birth certificate denies 'recognition' to the New York adoption decree" in spite of the registrar's statement that she is "not able to accept the New York adoption judgment to create a new birth record for [the child]."
The registrar is basing her denial, however, on Louisiana adoption laws and not the state's vital statistics laws as those laws apply to the issuing and reissuing of birth certificates. While Louisiana adoption laws do distinguish between married and unmarried couples, the vital statistics laws do not. It would in fact be extraordinary if they did, refusing to list both parents on a child's birth certificate if those parents were unmarried at the time of the child's birth. If the father is known, Louisiana lists both parents on the birth certificate regardless of the parents' marital status.
In proceeding to dismiss the suit by the two fathers to have the registrar recognize the adoption decree and reissue a proper birth certificate, the majority also takes three extraordinary measures.
First, they claim that the Full Faith and Credit Clause only binds state courts to abide by the judicial proceedings of other states, and does not require other non-judicial state officials to give full faith and credit to out-of-state judgments. The right always accuses "liberal" judges reading words into the law that aren't really there and failing to adhere to what the law actually says. Well, if that ain't the pot calling the kettle black. By its terms, the Full Faith and Credit Clause applies to "each State." The clause does not limit applicability to "the Courts of each State," "the judicial proceedings of each State" or "the judicial officers of each State." The dissent notes "[w]hen the drafters of the Constitution intended for a particular provision to bind only the courts of the states, they knew how to say so, as the text of the Supremacy Clause makes clear." There is a rule of construction that the language of the Constitution was carefully chosen and that the breadth or narrowness of language in parts of the Constitution can be examined in light of the the breadth or narrowness in other areas. The existence in the Supremacy Clause of the fragment binding "the Judges in every state" to the Constitution shows that that language chosen for the Full Faith and Credit Clause using the term "each State" was meant to cover more than just the judges in each State.
Second, the majority said that 42 U.S.C. §1983, a provision of federal law permitting people to sue government officials for violations of their federal rights, does not apply because, they claim, they Full Faith and Credit Clause does not create a cause of action. At issue is a Supreme Court ruling interpreting a federal kidnapping statute, a decision that did not address the applicability of §1983 to claims arising from the FF&C Clause, but rather whether the FF&C Clause gives rise to a private remedy against a private party. Hence §1983, a law addressing state actors, doesn't even play into the equation. The case didn't address whether a state official, such as the state registrar of vital statistics in this case, can be subject to suit for violating a right existing under the clause in the constitution. The majority even disputes whether the FF&C Clause creates a right despite the Supreme Courts' repeated use of the word right in relation to the FF&C Clause. Write the dissenting judge:
Properly understood then, Thompson does not control the instant case. The reason there was no remedy to enforce the FF&C Clause in Thompson is that there is no implied cause of action for violations of the FF&C Clause by private parties. Here, however, when Appellees are suing a state actor, they have no need for an implied cause of action: Section 1983 expressly provides them with the only remedy they seek and the only one they need. At bottom, the Thompson holding has no bearing on either of the questions that are dispositive of this appeal, to wit: (1) May a state delegate to a non-judicial actor the obligation of giving full faith and credit to out-of-state judgments? and (2) if it may and does so, what remedies are available to a judgment holder if that non-judicial state actor fails or refuses to carry out that constitutional obligation?
Since the Civil Rights Movement of the 1950's and 60's, the Supreme Court has ruled that §1983 gives aggrieved people broad authority to sue government officials for the violation of their rights. While this has generally been tied in some form or fashion to the 14th Amendment's Equal Protection and Due Process Clauses, those are not the only two constitutional provisions that have been embraced by §1983 claims. Cases have also arisen under the 15th Amendment, the Commerce Clause, the Contracts Clause, etc. The only other case that the court found where §1983 had been used in the FF&C context was a Tenth Circuit case very similar to this case where the State of Oklahoma refused to recognize the out-of-state adoption by a same sex couple of a child born in Oklahoma and, like Louisiana, refused to issue an amended birth certificate reflecting both parents. There is a maxim in science that absence of evidence is not necessarily evidence of absence, but that is precisely the tack the 5th Circuit took here, that because such a cause hasn't existed up until the Tenth Circuit case, that must be evidence that the FF&C Clause doesn't create a §1983 cause of action.
Finally, in the third prong of the 5th Circuit's extraordinary measures, they dismissed out of hand the Equal Protection Clause claim that was made in the suit. When the case was first filed, the fathers made two claims, the FF&C claim and an Equal Protection claim. The District Court, when it ruled, found the FF&C claim sufficient to rule against the state registrar and, following standard procedure of lower courts, therefore did not rule upon the Equal Protection claim. The plaintiffs had already won and there was no need to rule on the second claim. Despite this, the 5th Circuit has ordered the case to be dismissed without the district court being allowed to offer its analysis of the law on this point as the court of first impression in the case. This move by the appellate court is also being taken nostra sponte, i.e. without the registrar moving to have the claim dismissed in the first place. The proper action if the court is really going to dismiss the FF&C claims is to return the case to the district court for rehearing on the equal protection claims.
In conclusion, what we have here is the life of a child being made incredibly more difficult because both of the child's parents will not be listed on the birth certificate. Under the construction being presented by the 5th Circuit, the adoption is still valid and therefore there is no foul involved in their eyes. An interesting footnote in the dissent notes
Adar and Smith are, after all, the only legal parents Infant J has—not even the Registrar now contests that point. Neither does she contest that a birth certificate is a thing of value. It is often required to do things as varied as enroll in school, request a passport, or obtain a marriage license or a driver’s license. (emphasis added)
There are any number of things that require a birth certificate and when the child is a minor, it is often a necessary tool for parents in definitively establishing and proving legal paternity and guardianship. If this decision stands, however, this child will forever have to rely upon the adoption decree for this. And under the 5th Circuit's bizarre reading of the scope of the FF&C clause, this too can cause a problem. For example, suppose the parent not listed on the birth certificate wants to pick the child up from a public school to take the child to a doctor's appointment. Under the 5th Circuit's interpretation, a public school official, as a non judicial officer, is not required to recognize the New York State adoption decree or to enforce it. If the parent not listed on the birth certificate wants to have the school recognize him as a legal guardian of the child, he has to go to the state court of the state where the couple now resides (they don't live in New York anymore) and use FF&C to have the state court accept the New York adoption decree as valid and ask the state court to issue an order that would be binding upon the public school official, but such a process cannot be done until an actual denial of recognition occurs. In other words, not only is not having a birth certificate that accurately reflects both legal parents a burden to his rights as the child's parent, but having a judicially issued adoption decree is just as worthless outside of New York because it requires a forum state's courts to give FF&C to the adoption decree outside of the state.
Months ago we joked about Arizona's "Papers please" law and how people would be required to show their papers upon demand by state officials. Here, we have that taken a step further. Having papers doesn't guarantee the state will recognize their validity unless you go to court to trigger the Full Faith and Credit Clause as it is being interpreted by the 5th Circuit.
This is why we need comprehensive, strong national legislation protecting LGBT couples and their adoptive children. This will become an increasing problem as more states permit same sex couples to adopt children and to marry, which can lead to adoption of children as step children. This isn't just an issue for the same sex couples. This isn't "whining" by LGBT people for their rights. This isn't "I want a pony"! This has a very real, very negative impact on the everyday lives of real people, particularly the children involved who suffer from the lack of full recognition of their relationship to their parents all in the name of the right wing's boundless hate of LGBT people.