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Gay Parents Press High Court on Adoption Rights

Friday, August 12, 2011

A same-sex couple in New York wants their adopted son's birth certificate changed. Louisiana, where the boy was born, refuses. The couple's lawyer says the Constitution's full faith and credit should back them up and is asking for a High Court hearing.

Subhead: 
A same-sex couple in New York wants their adopted son's birth certificate changed. Louisiana, where the boy was born, refuses. The couple's lawyer says the Constitution's full faith and credit should back them up and is asking for a High Court hearing.


(WOMENSENEWS) -- Amended birth certificates that specify the names of a child's adoptive parents verify family relationships to doctors, insurance agencies and educators.

So like many adoptive parents across the nation, Oren Adar and Mickey Smith wanted to change their son's birth certificate to have their names on the document instead of those of the birth parents.

But Louisiana officials have blocked them on repeated legal appeals and now the couple's lawyer is asking the U.S. Supreme Court to consider hearing the case after it reconvenes in October.

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Because the case involves interstate relationships, it could have a potentially wide ripple effect on other families. Same-sex couples parent about 65,500 adopted children and youth, according to a 2007 study by the Williams Institute and Urban Institute.

Adar and Smith adopted their child in the state of New York in April 2006, but his birth certificate is controlled by Louisiana, the state where he was born. Louisiana allows adopted children to receive revised birth certificates with the names of their adoptive parents. The state, however, does not recognize adoption by unmarried parents.

In a further complication to the case, Louisiana also passed a constitutional ban on same-sex marriage in 2004. What that means about adoption by same-sex parents in the state is unclear. While same-sex couples are still not allowed to adopt children in Mississippi and Utah, no such explicit statute exists in Louisiana.

Darlene Smith, Louisiana's state's registrar and director of vital records, denied the family's request to issue a new birth certificate in a April 2007 letter, according to court documents provided by Lambda Legal, a New York-based legal advocacy group for gay and lesbian civil rights that is representing the couple.

In response, Lambda Legal filed a suit in October 2007, charging Darlene Smith with violating the U.S. Constitution.

Punishing the Kids

"We have long since abandoned the notion that the government can punish children to express disapproval of their parents or their families," said Ken Upton, the couple's lawyer from Lambda Legal, in a July press release. "The state of Louisiana cannot withhold a birth certificate for this child simply because it doesn't like who his parents are."

The group's legal centerpiece is the "full faith and credit" clause of Article Four, Section One in the U.S. Constitution, which says certain types of judicial decisions in one state must be honored in every state. The clause, for instance, has helped to standardize child-support laws and orders of protection stipulated by the federal Violence Against Women Act throughout the nation.

In August 2007 a federal appeals court decided the clause required Oklahoma to issue a revised birth certificate that would show both the adoptive parents of an Oklahoma-born child adopted by a same-sex couple in another state.

But that was Oklahoma, and the Lambda's case in Louisiana has followed a different course.

A U.S. district judge ruled against the Louisiana registrar in December 2008, finding that her conduct did not comply with her full-faith-and-credit obligation. Lambda Legal reported the court ordered her to issue a new birth certificate, clearly identifying Adar and Mickey Smith as the child's parents.

But the Louisiana attorney general appealed in January 2009. The case was presented to a three-member panel of federal judges in the Fifth Circuit Court of Appeals who in February 2010 unanimously decided in favor of the couple, once again.

The attorney general filed for a rehearing in March 2010. In April 2011 the Fifth Circuit Court of Appeals was divided on the issue and reversed course, denying Adar and Mickey Smith's son a new birth certificate.

On July 11 Lambda Legal filed a petition asking the U.S. Supreme Court to hear the case and is now waiting for further word on that.

Potential Roadblock

A potential roadblock is the 1996 Defense of Marriage Act, or DOMA, the federal law that defines marriage as a legal union between one man and one woman. It can be used to block one state from recognizing a same-sex marriage from another state.

President Barack Obama supports repealing DOMA. On July 20, the Senate held the first hearing on the Respect of Marriage Act, which would extend the same benefits and protections provided to heterosexual married couples to legally married same-sex couples. But that's on a parallel track for now.

While the Lambda case concerns a same-sex couple's rights, its legal centerpiece--the full faith and credit constitutional argument--hasn't been used to press marriage equality on states that ban same-sex marriage.

Lyle Denniston, advisor on constitutional literacy for the National Constitution Center based in Philadelphia, says that's partly because no one has yet tried.

"The 40 states that have bans on gay marriage … are not likely to recognize another state's marriage law until someone brings a lawsuit claiming that the state is obligated under the full faith and credit law to honor that marriage," Denniston said in a phone interview.

Denniston said gay rights advocates have not used the argument because it's high risk. A couple could easily lose if a state is being asked to accept a law that directly contradicts one of its own recently passed laws.

"It's a question of whether a state should really be forced to," said Denniston.

For now, same-sex advocates are focusing on September, when an appeal to Proposition 8, reaches the courts. That amendment, passed in the November 2008 state elections, overturned the California Supreme Court's ruling from June 2008 that same-sex couples had the constitutional right to marry.

If sponsors succeed in their appeal, the case will go to the Ninth Circuit federal appeals court and potentially settle the issue of same-sex marriage on the national front.

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Krystie Lee Yandoli is a Women's eNews editorial intern.

For more information:

Lambda Legal:
http://www.lambdalegal.org/

Background and Up-to-date Information on Prop 8:
http://www.prop8trialtracker.com/

Marriage Equality USA Advocacy Group:
http://www.marriageequality.org/the-organization