FINAL UPDATE 10:45 a.m.

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The Supreme Court granted review of two new cases on Tuesday, but turned down a significant test case on the rights of gay couples who adopt a child.  One of the newly granted cases seeks clarification of a federal law that protects home buyers from added fees on their mortgage loans when they go to closing.  The other involves the scope of the Constitution’s ban on double jeopardy, when a jury has voted against a guilty verdict on a serious offense, but deadlocks on a lesser crime and prosecutors seek a retrial on the greater crime.  Both cases are likely to be heard in February.

The case involving the gay couple (Adar, et al., v. Smith, docket 11-46) did not raise the basic question of whether same-sex couples have a legal right to adopt.  Rather, the issue was whether they have a right to equal treatment with married non-gay couples in having both parents’ names listed on the child’s birth certificate.  The case also was considered an important case on the meaning of the Constitution’s Full Faith and Credit Clause, because of the sharply narrow scope given to that Clause by the Fifth Circuit Court.  Louisiana’s records registrar refused to put both parents’ names on the birth record for their adopted son, relying on a state policy that forbids unmarried couples to jointly adopt a child.

The adopting couple, now living in California, had become parents of a Louisiana-born boy who had been put up for adoption.  The adoption was formalized in a court decree in New York State, and the parents sought a new birth certificate for the child in Louisiana.  When the request to have both parents named on the certificate was denied, the couple sued in federal court.  Their claim under the Full Faith and Credit Clause was flatly rejected in an 11-5 ruling by the Fifth Circuit, sitting en banc.  It ruled that the Clause only imposes duties on state courts to respect other states’ official decrees, and thus did not apply to a Louisiana records official.  The Circuit, by a 9-7 vote, rejected the couples’ equal protection claim, saying that adoption was not a fundamental right and, moreover, Louisiana had a legitimate reason for refusing to allow unmarried couples to jointly adopt.

In the Supreme Court order denying review, there was no notation of any dissent among the Justices.

Among the cases that the Court had considered at last week’s Conference, but took no action on Tuesday, were test cases on life prison terms without a chance for parole for minors convicted of murder, on corporations’ liability for human rights violations in other countries, on the constitutionality of displaying crosses at roadside sites of the deaths of highway patrolmen, and on whether prosecutors in Texas unconstitutionally used the race of a convicted murderer in seeking to persuade a jury to impose a death sentence.

The Court granted the mortgage fees case after being urged to do so by the U.S. Solicitor General.  The federal appeals courts are divided on whether the 1974 Real Estate Settlement Procedures Act applies to a settlement firm that keeps for itself all of the fees charged at closing.   In the case of Freeman v. Quicken Loans Inc. (10-1042), the Fifth Circuit had ruled that, if a third party did not take a share of the closing fees, there can be no violation of the Act.  That conflicts with the view of federal housing officials, who argue that the Act bars the imposition of any fees for which no service was provided, whether or not a third party was involved.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys  either work for or contribute to this blog, represents the petitioners in the case, but the author of this post operates independently of the law firm.]

The other newly granted case was Blueford v. Arkansas (docket 10-1320).  At the murder trial of Alex Blueford, the trial judge told the jury to consider capital murder and three lesser crimes — first-degree murder, manslaughter, and negligent homicide.  It should not consider any of those, the judge said, unless it first agreed unanimously that Blueford was not guilty of a greater offense, in order of the seriousness of the offense.  The forewoman announced in court that the jury had voted unanimously against capital murder and first-degree murder, and had deadlocked on manslaughter so it did not consider the negligent homicide charge, a more serious charge.  The judge granted a mistrial, rejecting defense lawyers’ plea to declare a partial verdict of acquittal on capital murder and first-degree murder.   When Blueford was retried, prosecutors pursued guilty verdicts on all of the prior charges.   The trial judge refused to dismiss the more serious charges, and Blueford then lost a pre-trial appeal to the Arkansas Supreme Court.   Lower courts are split on the double jeopardy question.

Posted in Featured, Merits Cases

Recommended Citation: Lyle Denniston, Gay couple case rejected; two grants (FINAL UPDATE), SCOTUSblog (Oct. 11, 2011, 10:08 AM), http://www.scotusblog.com/2011/10/gay-couple-case-rejected-2-grants/