In an astonishing reversal, the 5th Circuit has issued an en banc decision that upholds Louisiana’s refusal to issue a revised birth certificate to a New York same-sex couple who adopted a child born in Louisiana to reflect both members of the couple as the child’s parents. The federal district court and a panel of the 5th Circuit had earlier ruled against Louisiana and in favor the same-sex couple.
The court’s majority placed heavy emphasis on the fact that Louisiana recognized the validity of the couple’s New York adoption of the child. It held that it was perfectly permissible for Louisiana, while recognizing the validity of the New York adoption decree, to then simply refuse to issue a revised birth certificate reflecting that decree. According to the court:
Louisiana can be described as the “sole mistress” of revised birth certificates that are part of its vital statistics records. Louisiana has every right to channel and direct the rights created by foreign judgments. Obtaining a birth certificate falls in the heartland of enforcement, and therefore outside the full faith and credit obligation of recognition.
Adar v. Smith, slip op. at 21 (citation omitted). And, in considering the couples’ equal protection claim, the court found that Louisiana’s treatment of the children of unmarried couples was unproblematic because the state could rationally prefer the stable environment of a married couple or a single individual to that of a cohabiting couple who could separate at any time. Amazingly, no mention is made by the majority of the fact that Louisiana bars same-sex couples from marrying and does not recognize a same-sex couple’s marriage entered into out of state, meaning that a same-sex couple could never be considered stable under any circumstances. The majority also ignored, as the dissent points out, that this distinction between married and unmarried couples is made in Louisiana’s adoption laws–which did not apply to this case–but not in its laws governing the issuance of birth certificates–which were the central issue of the case.
The dissent, which decries the majority’s “judicial legerdemain” (slip op. at 35), is scathing, palpably exasperated, and definitely worth the read. As the dissent puts it:
[I]t is certainly Louisiana’s prerogative to determine the benefits to which out-of-state “adoptive parents” are entitled in Louisiana, but the FF&C [Full Faith and Credit] Clause nevertheless mandates that (1) Louisiana “recognize” all valid out-of-state status judgments and (2) Louisiana evenhandedly confer to all such judgment-holders those benefits that Louisiana law does establish. Here, Louisiana law declares that every “adoptive parent” is entitled to have his or her name reflected on a corrected birth certificate. Yet, the Registrar un-evenhandedly refuses to issue such a certificate to Appellees for the sole reason that she will not “accept,” viz., give full faith and credit to, their unquestionably valid out-of-state judgment. What else could this mean but that she refuses to recognize the out-of-state judgment that defines Appellees as “adoptive parents”?
Slip op. at 35. The dissent goes on to state:
I lament that, in its determination to sweep this high-profile and admittedly controversial case out the federal door (and, presumably, into state court), the en banc majority:
• Strips federal district and appellate courts of subject matter jurisdiction over violations of the FF&C Clause.
• Unduly cabins, if not emasculates, Ex parte Young and § 1983 by holding that the federal courts may not enjoin a state’s refusal to act in accordance with the mandate of the FF&C Clause.
• Creates a circuit split on the full faith and credit that must be afforded to valid, out-of-state adoption decrees by the adopted child’s birth state, as well as the availability of a federal forum for deciding such claims.
• Dismisses sua sponte the Appellees’ very likely winning claims under the Equal Protection Clause without affording the district court, as the court of “first impression,” the initial opportunity to hear the evidence, analyze the case, and adjudicate those claims, as historically required by the prudence and practice of this and other appellate courts.
Slip op. at 36. (Note that the circuit split mentioned by the dissent refers to the 10th Circuit’s decision in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), which considered a similar issue and came it in favor of the same-sex couple.)