Gay Couple Loses Louisiana Fight to Be Named on Birth Certificate

As reported by Leslie Fenton (whose story about adopting her own son I blogged about here):

It was muggy late summer New Orleans, hurricane season 2010. Families all over the Gulf Coast packed their evacuation bags for a quick getaway on a moment's notice. My wife's all-consuming morning sickness had started to subside. She was three months pregnant, and we had a decision to make: Could we safely let our child be born in Louisiana? We knew about the case of Oren Smith and Mickey Adar, two dads who adopted a little boy from Louisiana in 2006 and have been fighting ever since to get the state to issue them an amended birth certificate. Louisiana, like most states, will issue an amended birth certificate to reflect the names of adoptive parents so the child has a definitive record of parentage for everything from insurance to inheritance rights. But the Louisiana Registrar refused to issue one to this child, on the theory that Louisiana does not recognize "unmarried couple" adoptions. At the time we were deciding whether to move, Oren and Mickey had just won their latest round in the 5th Circuit Court of Appeals, but the state was appealing to the full bench. If they lost, the legal landscape for families headed by same-sex couples in Louisiana would be grimmer than ever.

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Late Monday night, the court handed down a 70+ page opinion siding with the Louisiana Registrar. The crux of Smith and Adar's claim is the Full Faith and Credit Clause (FFC) of the U.S. Constitution, which compels states to give recognition to the court judgments of other states. This provision in the Constitution is one of the lynchpins of federalism itself: Residents of the separate states can freely move between them without fear that their valid legal documents will become useless the moment they cross a border line. In recent years, anti-gay legislators have succeeded in carving out what is essentially a Gay Exception to the FFC in the form of the Defense of Marriage Act, which allows states to deny valid marriage documents from other states if the happy couple consists of two men or two women. Even the President of the United States has announced that DOMA is unconstitutional, and yet states persist in holding fast to the Gay Exception. For the record, no state has ever insisted on a Murderer Exception, or a Domestic Violence Perpetrator Exception, or even a Pedophile Exception to the FFC when it comes to marriage.

But on Monday, the 5th Circuit majority upheld the Gay Exception in Louisiana, where the repugnant Registrar refused to add both dads to their baby's birth certificate. The circular reasoning in the legalese-heavy ruling goes something like this: The Registrar has "acknowledged" the out-of-state ruling by admitting it exists, and has therefore fulfilled the state's responsibilities under the FFC even though she refuses to issue an official document reflecting this acknowledgment. As the dissent point out, the majority's decision goes much further. It ignores the federal courts' responsibility to enforce FFC and, most alarmingly, asserts that individuals have no private right of action to enforce FFC. In other words: Don't even think about trying this with your East Coast marriages, gays. Too bad, so sad, kid. Next time, try getting adopted by a straight couple. Louisiana will put both their names on your birth certificate even if they beat you half to death.

You can read the 5th Circuit opinion here.

And this is what I said in an earlier post about the law suit:

I've posted before about why I hate the so-called "amended birth certificate" that states issue for adopted children. I consider them government-sponsored lies.

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But once we allow amended birth certificates for adopted children, listing the names of their adoptive parents, then who cares the sexual orientation of the parents? If an amended birth certificate doesn't mean that the folks listed actually gave birth to the child, who cares whether the parents were in fact biologically capable of giving birth to the child?

Amanda of the Declassified Adoptee posted an insightful comment in response:

I think that these issues are more arguing about the rights of those who are adopting, rather than promoting the rights of the children who are being adopted.

Yes, all people deserve to be treated equally. We can either argue that gay and lesbian adoptive parents have the equal right to be on the birth certificates of adopted children as heterosexual parents are.

or

We can instead argue that adopted children have the equal right to have one birth certificate with factual birth documentation upon it, as the non-adopted do.

Well said.