5th Circuit Finds Louisiana Could Refuse to Issue Birth Certificate Showing Both Unmarried Parents of Adopted Child

Reversing a three-judge panel and dismissing a suit brought by a gay couple seeking a proper birth certificate for the Louisiana-born child who they had jointly adopted in New York, an en banc majority of the U.S. Court of Appeals for the 5th Circuit ruled on April 12 that Louisiana officials had not violated the Full Faith and Credit Clause of the Constitution by refusing to give full effect to a New York adoption decree by listing both adoptive parents on a new birth certificate for the child.  Adar v. Smith, 2011 Westlaw 1367493.

The en banc majority, joining an opinion for the court by Chief Judge Edith H. Jones, held that the lower federal courts do not have jurisdiction to determine claims asserted against state officials based on the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, asserting that 42 U.S.C. section 1983, the statute that gives federal district courts jurisdiction over civil rights claims against states, does not apply to this case. According to Judge Jones, an individual who is denied proper recognition of their out-of-state judgment by a state official must sue in state court and, if their claim is rejected, appeal to the U.S. Supreme Court from the state courts to get a final, binding determination of their rights under the FFCC.

Sixteen judges of the 5th Circuit sat in en banc review of the panel decision, with eleven concluding that the plaintiff's claim could not be adjudicated by the federal district court and ten that, on the merits, refusal to issue the birth certificate did not violate the constitutional requirement of full faith and credit in any event.   This latter holding is arguably dicta, and clearly wrong, as the dissent demonstrates.  Nine members of the court joined in Judge Jones' further holding that Louisiana's refusal to issue the birth certificate did not violate the Equal Protection Clause, an issue that the District Court had not addressed on the merits.  Two members of the majority, concurring separately, agreed with the dissent (see below) that the court should not have addressed the equal protection claim.

Five judges dissented in full from the majority opinion.  The lengthy dissenting opinion by Judge Jacques L. Wiener, Jr., forcefully argued that the majority egregiously misconstrued the FFCC, which clearly creates a federal constitutional right that is enforceable in federal court under Section 1983.  That is the right to have the forum state give full faith and credit to a judicial decision from another state.  Furthermore, the dissent argued that the majority mischaracterized the plaintiffs' equal protection claim in the course of improperly deciding it without the benefit of a trial court ruling on the merits.  In other words, as far as the dissenters were concerned, the majority gets an "F" for this opinion, and this writer concurs in assigning that grade.  Two members of the majority, writing separately, agreed with Judge Wiener that the majority erred by addressing the Equal Protection issue.

The case involves a gay couple, Mickey Smith and Oren Adar, who adopted a 5-year-old boy in New York.  Because the boy was born in Louisiana, they had to apply to the Louisiana Registrar of birth certificates in order to get a new birth certificate issued for the boy showing the two men as his legal father.  They presented a certified copy of the New York court's adoption decree to the Louisiana Registrar, Darlene Smith, who refused to issue the certificate. She premised her refusal (which followed instructions from the state's attorney general) on the fact that Louisiana does not allow adoptions by unmarried couples.  The position of Louisiana is that it may not be required to do anything that could be construed as allowing a same-sex couple to adopt, or even recognizing a same-sex couple as having any kind of legal status as adoptive parents.

Adar and Smith, represented by Lambda Legal, filed suit in federal district court in Louisiana, claiming that the refusal to issue them an appropriate birth certificate for their son violates their rights under the FFCC to have their New York adoption decree recognized in Louisiana.  They also argued that the refusal violates their rights and their son's rights under the Equal Protection Clause of the 14th Amendment, by discriminating without any legitimate justification on the basis of their sexual orientation and marital status and improperly burdening the rights of their son.  Registrar Smith offered to issue a certificate listing only one of the men as a parent, but they declined this offer.

The trial judge granted summary judgment to plaintiffs on their FFCC claim, finding it unnecessary to address the Equal Protection claim, and ordered the state to issue the birth certificate.  The state appealed to the 5th Circuit.  A three-judge panel of the 5th Circuit concluded that it was not necessary for the trial court to decide the FFCC claim because the Louisiana statute, as correctly construed, clearly requires the Registrar to issue the new birth certificate as a ministerial function.  The state sought en banc review, which was granted.  A grant of en banc review vacates the panel decision.

The majority takes the curious position that the Full Faith and Credit Clause, which is Article IV, Section 1, of the Constitution, only applies to state courts, and not to state executive branch officials.  This, as the dissent points out, flies in the face of the clear constitutional language: "Full Faith and Credit shall be given in each State to the public Act, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."  On its face, this says that the obligation of Full Faith and Credit applies to the "State," not just to its courts.  The majority purported to find the more limited ruling as an artifact, first, of a federal statute that expressly requires state courts to give full faith and credit to the acts, records and judicial proceedings of other states, 28 USC section 1738, and second to history and Supreme Court precedent.  Most FFCC claims arise in the context of litigation, where the issue is whether the trial court must give effect to a judgment from another state.  The Supreme Court has ruled that federal courts don't have jurisdiction to entertain FFCC arguments in lawsuits between private parties.  The dissent persuasively argues that the majority misconstrued and "cherry-picked" the precedents, all distinguishable from this case, and that in fact the Supreme Court has never directly ruled on the question whether an individual can sue state officials under Section 1983 for their refusal to recognize an out-of-state judgment.

Indeed, argues the dissent, the majority's opinion opens up a circuit split with the only other federal appeals court to have ruled on an analogous case, the 10th Circuit in Finstuen v. Crutcher, 496 F.3d 1139 (2007).  That case challenged the refusal of Oklahoma officials to issue birth certificates for Oklahoma-born children adopted by gay couples in other states, based on an Oklahoma statute that specifically commanded state officials to refuse to recognize such adoptions.  The 10th Circuit found that Oklahoma's statute violated the Full Faith and Credit Clause.  The Adar majority describes Finstuen as an "outlier."  The dissent contends that Finstuen is correct and that the majority has needlessly opened a circuit split on an issue where the clear constitutional language of the FFCC does not support the majority's approach.

Furthermore, the dissent persuasively argues that the majority has created an artifical distinction between "recognition" and "enforcement," once again cherry-picking phrases from Supreme Court decisions.  The majority claims that Louisiana officials have not refused to "recognize" the Adar-Smith adoption, but have merely refused to "enforce" it by issuing a new birth certificate. They point to Registrar Smith's offer to issue a certificate listing one of the men, which dissenter Wiener memorably characterizes as "Half Faith and Credit." They claim that the Supreme Court's FFCC jurisprudence has never required state courts to adopt the enforcement mechanism of other states, but merely to recognize judgments from other states and then apply their own law in determining how the judgments are to be enforced.

The dissent points out that an aspect of recognition is "even-handed treatment" under the state's own laws.  In this case, since Louisiana's statute on birth certificates directs the Registrar to issue a new certificate when presented with an authenticated adoption judgment from out of state, and since Louisiana law authorizes issuing birth certificates naming both biological parents when a child is born to an unmarried couple — even though the state does not allow unmarried couples to adopt — the refusal to issue a certificate naming both Adar and Smith as parents of their son is a blatant refusal to recognize the NY adoption, a clear example of lack of evenhanded treatment of an out-of-state judgment.

The same point supports Adar and Smith's Equal Protection claim, argues the dissent.  First, however, the dissent points out that although the en banc court theoretically has jurisdiction to decide the equal protection claim on its merits, it is a serious departure from normal practice to do so.  Ordinarily, an en banc court would not address a substantive legal issue that was not first decided by the panel.  Even more to the point, an appellate court will not normally decide a legal issue that was not first decided by the trial court, unless there is no arguable basis for the plaintiffs' substantive legal claim whatsoever and thus no need for any factfinding.  In this case, the trial judge never addressed the Equal Protection claim, having decided the case on a motion for summary judgment by the plaintiffs and predicated its ruling entirely on the FFCC claim.  Furthermore, the initial 5th Circuit panel never addressed the Equal Protection claim, which was not raised by the state's appeal, having found that the matter could be decided without reaching any federal issues at all, by application of the clear Louisiana statutory provision on birth certificates.

In his dissent, Judge Wiener makes clear that it was totally improper for the majority to have decided the Equal Protection claim, especially as they had totally botched it as well by a clear conceptual error.  The only policy justification raised by the Registrar to justify denying the license – that Louisiana does not allow adoptions by unmarried couples because of a preference for a stable home for adoptive children, in light of studies showing that marital homes are more stable than homes headed by unmarried couples – is irrelevant to this case, because it's not an adoption case!  That is, Adar and Smith are not challenging Louisiana's adoption law.  Rather, they are asking for enforcement of its birth certificate statute, which says that the Registrar "shall" issue a certificate showing the names of all adoptive parents when presented with an authenticated court adoption order from another jurisdiction.

Judge Wiener points out that the Equal Protection issue is whether the state has a rational justification for issuing birth certificates for unmarried couples who are the biological parents of a child but refusing to issue such certificates for unmarried couples who are the adoptive parents of a child.  The state's adoption policies are irrelevant to this.  "Because the Registrar's policy does not affect Louisiana adoptions," wrote Judge Wiener, "the governmental interest served by her refusal to issue a birth certificate reflecting both unmarried out-of-state adoptive parents must extend beyond a defense of Louisiana's adoption laws."  Since the state issues birth certificates to unmarried biological parents, who could not adopt, some different policy justification must be advanced to support refusing to do the same for unmarried adoptive parents.  But none has been articulated by the state.  "What's the legal difference?," asked Judge Wiener.  "Where's the Equal Protection?  Can there be any question that the en banc majority erred in addressing and dismissing Appellees' Equal Protection Clause claim on the merits before that claim was heard and fully vetted by the district court?"

Now Lambda Legal and the plaintiffs have a new strategy decision to make.  They could try to petition the 5th Circuit en banc for reconsideration — probably a futile move, given the vote count — or they could file a new case in state court, or they could petition the U.S. Supreme Court for certiorari to review this en banc decision.  The decision is so egregiously wrong that a Supreme Court cert petition may be the way to go.