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

This guest post, by our Director of Policy Emily Hecht-McGowan,
was posted at the American Constitution Society for Law and

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
, and ordered the registrar to issue a new birth
certificate identifying both men as the child’s parents.
of the 5th Circuit affirmed
. Louisiana then sought en
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
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 bancmajority 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 theAmerican 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