A series of major constitutional disputes over the rights of gays and lesbians are developing in federal courts, and now the first of that new wave of cases has reached the Supreme Court: a significant test case on whether the Constitution protects same-sex couples’ rights as parents.  The case, Adar v. Smith, State Registrar (docket 11-46), was filed at the Court Monday by lawyers for a California couple seeking to be listed as parents on a birth certificate for a five-year-old Louisiana boy they have adopted.  State officials refused, because of a policy against adoption by unmarried couples — in this case, a gay couple.  (The new petition is here; the Fifth Circuit Court ruling being challenged is here.)

At issue is a sweeping decision by the Fifth Circuit Court, ruling en banc in April, declaring that the Constitution’s Full Faith and Credit Act applies only to state courts, not to other state officers; that it cannot be enforced through federal civil rights law, and that federal District and Circuit Courts have no jurisdiction to hear a challenge based on the Clause.  And those declarations arise in the context of a constitutional claim to legal equality by a gay couple.

The case does not test directly the rights of gays to adopt, an issue that has arisen in several states, but it does involve whether a policy preference that adoptive parents are more qualified if married is constitutional — a policy that can have a direct effect on gay couples especially, since their right to marry exists in so few states.   But, more broadly, the case has implications for the duty of states to honor legal orders that gays and lesbians gain in other states – perhaps, even marriage, especially if Congress ultimately is found not to have the authority to spare states from respecting marriages performed elsewhere.

The ruling by the Fifth Circuit, the new petition argued, treats children differently on the basis of the marital status of their adoptive parents.  “This Court,” it said, “has made clear that government discrimination against children based on disapproval of their parents requires careful scrutiny and strong justification.”  Moreover, the petition asserted, the Fifth Circuit has cleared the way for state legislatures and executive officers to disregard out-of-state legal judgments “based on policy assessments about the merits of those judgments.”   The case is being pursued by a gay rights advocacy group, Lambda Legal.

The boy involved, identified in legal papers only as “J.C.,” was born in Shreveport, La., and put up for adoption.  Oren Adar and Mickey Ray Smith, a California gay couple, became his adoptive parents, and that legal role was declared in a court order issued in New York State.  The boy had a Louisiana birth certificate that was issued to his biological parents at birth, but Adar and Smith wanted it changed to reflect that they are now his legal parents.

A valid birth certificate, reflecting parentage and citizenship, the couple has argued, is vitally important to both the child and his parents, as they seek to travel, to place him in school, to arrange for his medical care, to determine his inheritance and insurance rights, to claim him as a dependent for tax purposes, and a variety of other legal and practical opportunities as the boy grows up.  Some of the difficulties that arise without a valid birth certificate have already happened to J.C.’s parents, they noted.

Adar and Smith assumed that J.C. could have his birth certificate changed in Louisiana, because there is a state law that creates a right to an accurate, amended official document of birth and identity, when a child has been born in Louisiana but then is adopted in a different state.  Every state has a similar law.

But the parents’ request was denied, because state officials have a policy of refusing to issue an amended certificate if the child’s parents are not legally married.  Another Louisiana law prohibits adoption by two adults if they are not married.   That law was invoked against J.C.’s parents.   Later, after the state document registrar, Darlene W. Smith, had been sued, she offered to amend the certificate to name one of the couple as parent, but not both.  They declined.

Going to federal court, Adar and Smith made two constitutional claims: first, they argued that the Constitution’s Full Faith and Credit Clause requires states to accept as valid the legal judgments issued in other states, and, second, they argued that singling out unmarried couples for denial of an amended birth certificate is a violation of the Fourteenth Amendment’s guarantee of legal equality.

A federal judge and a three-judge panel of the Fifth Circuit agreed with the first challenge, but that ruling was set aside when the full 16-member Circuit Court agreed to hear the case en banc.   Dividing 11-5, that Court ruled that the Full Faith and Credit Clause only operates as a mandate to state courts, not to state legislatures or state executive officials, and that the federal District and Circuit Courts have no jurisdiction to hear a civil rights claim seeking to enforce the Clause against state officers.

The only way to enforce the Clause, it concluded, is to challenge a state court’s refusal to honor another state’s legal judgment, and then appeal directly to the U.S. Supreme Court.

By a vote of 9-7, the Circuit Court ruled that, even if a civil rights lawsuit could be filed (under so-called Section 1983), that section was not violated in J.C.’s case because state officials have authority to make their own judgments about how and when to issue birth certificates.

And, even though the District Court and the Circuit Court panel did not decide the legal equality claim, the en banc Court rejected it on the merits — again, by a 9-7 vote.  It did so by applying the lowest standard of legal proof for a claim.  In doing so, the majority said that “adoption is not a fundamental right,” and cited a research study that claimed marriage provides a better environment in which to raise children.   Children’s interests, it said, are not well served by “the freely severable relationship of unmarried partners.”

The main dissent, speaking for five judges, argued that the Circuit Court had “trivialized” the Full Faith and Credit Clause, and had wrongly reached out to decide the legal equality issue when two prior courts had not even addressed it.

Much of the dispute between the majority and dissent on the Full Faith and Credit issue turns upon widely differing interpretations of a 1988 Supreme Court decision, Thompson v. Thompson, interpreting the scope of the Full Faith and Credit Clause.

The couple’s appeal to the Supreme Court raises three questions: first, whether the Full Faith and Credit Clause applies to a state executive official who disregards an out-of-state judgment for policy reasons; second, whether Section 1983 provides a legal route to challenge a violation of the Clause, and, third, whether it violated the Equal Protection Clause to refuse to respect an out-of-state judgment based upon differing treatment of unmarried couples.

The Court will not act on the new petition during its summer recess and, in any event, not until after state officials have a chance to respond to the new petition.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Gay adoption case reaches Court, SCOTUSblog (Jul. 11, 2011, 11:36 PM), http://www.scotusblog.com/2011/07/gay-adoption-case-reaches-court/