Fifth Circuit Decision on Gay Adoption Undercuts Constitution, Stigmatizes Innocent Child

April 28, 2011
Guest Post

By Emily Hecht-McGowan, Director of Public Policy, Family Equality Council


In a stunning reversal of both the district and appellate court rulings in Adar v Smith, the U.S. Court of Appeals for the 5th Circuit sitting en banc found that the refusal of the Louisiana state registrar to issue an amended birth certificate to a child adopted by a gay couple did not violate the Full Faith and Credit clause of the U.S. Constitution.

Parents Oren Adar and Mickey Smith’s (no relation to the state registrar also named Smith) child was born in Louisiana and adopted jointly by the two men in New York. Although Louisiana state law requires the registrar to issue a new birth certificate upon receipt of a valid adoption decree, the registrar refused to do so in this case on the ground that Louisiana state law prohibits adoption by unmarried couples. Adar and Smith sued under both the Full Faith and Credit Clause and the Equal Protection Clause.  The federal district court agreed with plaintiffs’ Full Faith and Credit argument, and ordered the registrar to issue a new birth certificate identifying both men as the child’s parents. A panel of the 5th Circuit affirmed. Louisiana then sought en banc review by the full 5th Circuit, and in a divided decision with a vigorous dissent written by Judge Weiner, the en banc Court reversed and ordered that Adar and Smith’s complaint be dismissed. 

With respect to plaintiffs’ Full Faith and Credit claim, the Court noted that the state “is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be re-litigated in Louisiana.”  The Court nevertheless concluded that Louisiana’s failure to issue a new birth certificate reflecting that adoption did not deny recognition of the New York adoption.  Although the Court emphasized that the adoption’s validity could not be contested in a Louisiana court, same-sex couples who jointly adopt children born in Louisiana will find these statements of very little comfort in light of the practical effects of this decision.  Specifically, by permitting the state registrar to refuse to issue a new birth certificate on the ground that the adoption decree entered by N.Y. would not have been permissible under Louisiana law, the Court has essentially given permission for any entity other than a court to refuse recognition of any out-of-state adoption decree for any purpose.  There is no legitimate state interest in refusing to issue a birth certificate that accurately reflects the established legal relationship between a child and the child’s parents. The clear objective here is to attempt to delegitimize an adoption by a gay couple and to stigmatize an innocent child.  

With respect to plaintiffs’ equal protection claim, even though neither the lower court nor the original 5th Circuit panel felt the need to address this issue, the en banc majority decided to consider, and reject, this claim on the merits.  Specifically, the Court ruled that there was no fundamental right to adoption, rejected any argument for heightened scrutiny and then determined that the state’s “rational preference for stable adoptive families” was enough to satisfy its birth certificate laws. In support of its conclusion, the Court cited Lofton v. Secretary of the Department of Children and Family Services, the U.S. Court of Appeals for the 11th Circuit’s controversial 2004 decision rejecting a challenge to Florida’s statutory ban on adoption by lesbians and gay men. The en banc majority conspicuously failed even to mention, however, the recent invalidation of the ban by Florida’s intermediate appellate court in In re Gill.

Perhaps even more notable was the Court’s reliance on a 2002 article by University of Michigan sociologist Kristin Anderson Moore as support for the proposition that Louisiana’s refusal to issue birth certificates to children adopted by unmarried couples could be justified by the “evidence” that marriage is a more stable structure than cohabitation and therefore produces better outcomes for children.  As countless social scientists have explained, however, studies comparing married and unmarried couples have historically failed to take into account the fact that same-sex couples have been legally prohibited from marrying, and therefore are not similarly situated to typical unmarried heterosexual couples.  In fact, all of the mainstream child welfare organizations, including the American Academy of Pediatrics and the National Association of Social Workers, have issued official policy statements in support of the ability of qualified gay and lesbian individuals and couples to adopt and raise children. 

Although the plaintiff’s lawyers have not indicated whether they intend to seek further review, the Supreme Court will likely take note that the 5th Circuit’s decision has created a circuit split.  In its 2007 decision in Finstuen v. Crutcher, the U.S. Court of Appeals for the 10th Circuit struck down an Oklahoma law denying recognition to out-of-state adoptions by same-sex couples as a violation of the Full Faith and Credit Clause.  Of course, the Supreme Court may decide not to intervene on the theory that the actions of the Louisiana registrar are simply an aberration.  Although we hope that this remains the case, the 5th Circuit’s decision will undoubtedly embolden state officials who are already predisposed to deny or interfere with the ability of same-sex couples to secure legal protections for themselves and their children.