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Lambda Legal files with the Supreme Court regarding same-sex couple adoption

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By Adam Bink

In my inbox, from Kevin Cathcart at Lambda Legal:

Dear Adam,

Today Lambda Legal asked the United States Supreme Court to hear our case on behalf of Oren Adar and Mickey Smith, two dads who have been denied an accurate birth certificate for their son by the state of Louisiana. Louisiana insists they do not have to respect a court-ordered adoption from another state and they won’t do so for the son of Oren and Mickey because they are an unmarried couple.

We think the state of Louisiana is wrong, and their actions are discriminatory and unconstitutional.

Asking the U.S. Supreme Court to review a case is a big step and we do not take it lightly. In our petition, Lambda Legal argues that the State of Louisiana is violating both the equal protection and full faith and credit provisions of the Constitution, and they are punishing a child because they disapprove of his parents. We have to do everything we can to fight back.

The absence of an accurate birth certificate has been a hardship for the family as they struggled to enroll their child in their health insurance and in pre-school. While boarding a flight, the couple was asked to provide the child’s birth certificate to prove he was their child.

Lambda Legal first filed suit on behalf of Oren and Mickey in October 2007, when the Louisiana attorney general advised the registrar that she did not have to honor an adoption from another state that would not have been granted under Louisiana law. We won at the federal trial court in 2009, but the Louisiana attorney general appealed the decision. In 2010, we won again: A three-judge panel of the Fifth Circuit Court of Appeals unanimously affirmed the judgment. The attorney general requested a rehearing by the full Court of Appeals and we suffered a disappointing setback this spring when a sharply divided court overturned the prior decisions.

Today’s petition to the U.S Supreme court argues that the Fifth Circuit’s ruling ignores nearly one hundred years of well-established Supreme Court law and conflicts with other federal circuits across the country. Left untouched, it carves out an exception to the uniformly recognized respect for judgments that states have come to rely upon and leaves adopted children and their parents vulnerable in their interactions with officials from other states.

We’ve won this fight before. Lambda Legal represented a same-sex couple who adopted a child in California and later moved to Oklahoma. The Oklahoma legislature actually passed a law refusing to recognize any out-of-state adoption by a same-sex couple. Because of our legal challenge, that law was found unconstitutional by the 10th Circuit Court of Appeals and struck down.

40 Comments Leave a Comment

  • 1. Dana_Jeanne  |  July 11, 2011 at 11:33 am

    I just don't understand how the govt can do stuff like this :-(

  • 2. Alan_Eckert  |  July 11, 2011 at 11:36 am

    So which way does the "full faith and credit" clause work in this one? Louisiana is trying to say that all other states must recognize their adoption laws, and the plaintiffs (from New York?) are claiming that Louisiana must recognize every other state's in specific cases.

  • 3. Alan_Eckert  |  July 11, 2011 at 11:36 am

    Shoot. I wanted to subscribe to all comments, not just replies.

  • 4. Ed Cortes  |  July 11, 2011 at 11:37 am

    subbin'

  • 5. Kathleen  |  July 11, 2011 at 11:49 am

    Here's the link to the Petition for writ of cert: http://www.lambdalegal.org/in-court/legal-docs/ad

  • 6. Carpool_Cookie  |  July 11, 2011 at 11:49 am

    HORRIFIC STORY: was this linked to by anyone?

    "Religious Leader Shoots 4-year-old Boy to Death Because He Might Be Gay"
    http://networkedblogs.com/kaopz

  • 7. Drpatrick1  |  July 11, 2011 at 11:56 am

    Louisiana is not being asked to grant the adoption, to approve of it in any way. As the child was born in LA, his birth certificate MUST come from LA. His adoption, by another state, is legal, and LA can do nothing about it. What they refuse to do is reissue his birth certificate with his legal parents information included, standard practice for all adoptions. Contrary to popular belief, birth certificates are not a medical record documenting the birth of a child. Rather, it is a legal paper which documents Legitimacy, or the legality of the child's parents. It does not document genetics (many of us around have one father listed on our birth certificates, but a different person whose sperm was responsible). LA does not have to approve, they simply need to abide by the already done adoption. LA argues that they don't have to because the adoption would not be approved there. This is clear, unambiguous, and I cannot understand how even with the most conservative court in our nations history we could lose this one. At least if legal arguements are used!

  • 8. Mackenzie  |  July 11, 2011 at 12:16 pm

    this is just sad….what are the chances that the Supremes will be more friendly the 9th circuit en banc?

  • 9. Mackenzie  |  July 11, 2011 at 12:18 pm

    sorry 5th, not 9th

  • 10. grod  |  July 11, 2011 at 12:47 pm

    @Dana_Jeanne
    Or the courts. What was the full court decision? Likely the right case to put before the Supremes.to give a reading how other cases will play out. G

  • 11. Important Case for Adopti&hellip  |  July 11, 2011 at 12:49 pm

    [...] an email sent out today, Lambda Legal makes note of previous victories that relate to this [...]

  • 12. grod  |  July 11, 2011 at 12:51 pm

    @Kathleen Could you please post the full 5th Circuit Cour of Appeal's decision

  • 13. Alan_Eckert  |  July 11, 2011 at 12:54 pm

    I just had another thought. What would happen to this case if the parents get married in New York? Louisiana still won't recognize the marriage, per se, but they would be legally married in their home state. Could the Supremes send it back for further review, even as far as the District Court?

  • 14. Ann S.  |  July 11, 2011 at 12:54 pm

    §

  • 15. Drpatrick1  |  July 11, 2011 at 1:01 pm

    Ditto, anyone have a copy of that ruling/opinion. What LAW did they write down there. Hopefully, noone advances from this court to the Supreme court.

  • 16. W. Kevin Vicklund  |  July 11, 2011 at 1:07 pm

    First, the likelihood that the Court will even take the case: since there is a similar case in another Circuit (in Oklahoma) where the results conflict with this case, the likelihood increases. Also, because this has ramifications that reach across Circuits, it is more likely to be addressed by SCOTUS. As to likely breakdown of the decision: the 4-judge liberal bloc almost certainly would rule in favor of the adoptive parents. Better than even odds that Kennedy would rule in favor of the adoptive parents. I see a good chance of at least one, if not more, of the remaining four judges coming over to the adoptive parents side. The biggest catch is that this goes beyond requiring LA to give full faith and credit to another state's records, but requires LA to alter its own records.

  • 17. JonT  |  July 11, 2011 at 1:08 pm

    Yes, it's all over the place. :(

  • 18. Drpatrick1  |  July 11, 2011 at 1:13 pm

    http://www.ca5.uscourts.gov/opinions/pub/09/09-30

  • 19. fiona64  |  July 11, 2011 at 1:16 pm

    OT for this thread and apropos of nothing: all of my eBook titles are available for free during July: http://www.smashwords.com/profile/view/fiona64 . "Les Pensees Dangereuses," which is "set your own price" (set to $0), has some essays about my work in marriage equality. I just realized that I hadn't shared the info with my friends here.

    As you were. :-)

  • 20. Carpool_Cookie  |  July 11, 2011 at 1:24 pm

    BLAAAAGH!

    I wonder why this isn't all over the news and Nancy Grace, like the Caylee Anthony story. There, they just had a suspected murder for months and months. Here's a REAL child murder…but because the child was black, not a big enough story? Sad.

  • 21. Alan_Eckert  |  July 11, 2011 at 1:30 pm

    Thanks. Skimming it now.

  • 22. JonT  |  July 11, 2011 at 1:34 pm

    Well I do not have any TV so I don't know what TV coverage, if any, the story has received…

    I have seen it mentioned on almost all of the LGBT blogs I frequent.

    It's just so very sad.

  • 23. Ronnie  |  July 11, 2011 at 1:36 pm

    Subscribing & sharing…..

    CIA Signs on to Gay Military Convention http://www.advocate.com/News/Daily_News/2011/07/1

    <3…Ronnie

  • 24. W. Kevin Vicklund  |  July 11, 2011 at 1:39 pm

    Ok, I just read the beginning of the pettition for WoC. If at all accurate, the state doesn't have a leg to stand on. It's relying on a public policy exception to it's own law requiring the state to issue a corrected birth certificate for out-of-state adoptions. SCOTUS has never allowed public policy to trump enforcement of a judgment where that judgment can be enforced.

  • 25. Alan_Eckert  |  July 11, 2011 at 1:44 pm

    I just thought of something else, too. Has Louisiana ever changed the birth certificate for adoptive parents who were not married and were opposite sex? If so, then this could easily fall under equal protection. I don't have all of the info from the District Court to be able to know. Anyone know where I should look first? (Google tells me squat)

  • 26. Carpool_Cookie  |  July 11, 2011 at 1:55 pm

    I did a search on the killer's name, and news stories don't come up for major, mainstream newspapers.

    Oh wait…I did a search under the child's name, and there is stuff on the American Online site, etc.

  • 27. Drpatrick1  |  July 11, 2011 at 2:12 pm

    OK, so read through the first few pages. I think we need a lawyer here to review. The opinion of the slim majority of the court seems to state that the FF&C clause tells LA it must recognize the adoption, but don't have to "do" anything. SO, if someone contested the adoption, they'd have to relent, but if the adoption also granted some other benefit (like a new birth certificate) they don't have to take that action. It does seem twisted. If they would redo any bc involving an adoption from an out of state adoption of a child born in LA, then they would seem to be violating Equal protection. HOWEVER, they argued that LA does not contest the adoption, thus is giving FF&C, and thus abiding by that clause of the constitution. I DO NOT AGREE AT ALL!

  • 28. Drpatrick1  |  July 11, 2011 at 2:16 pm

    We can look at it this way, if NY offered $1,000 cash for all adoptions, no one would argue that just because the child was born in LA that LA would have to fork over the money. That would be LA being forced into an action. THAT, HOWEVER, IS NOT WHAT THEY ARE ASKING FOR. In this case, FF&C requires LA to act as if a LA court approved the adoption. IN SUCH A CASE, they would be forced to resubmit a corrected birth certificate. THAT IS WHAT THEY ARE ASKING FOR! I think the SC will have to find this way. My prediction: 7/2with Scalia and Thomas dissenting.

  • 29. DrPatrick1  |  July 11, 2011 at 2:41 pm

    OMG, love this paragraph from the writ:
    The facts of this case also serve to demonstrate the problematic nature of the Fifth Circuit majority’s
    final holding – that there is nothing constitutionally suspect, for purposes of the Equal Protection Clause, about state action that discriminates among children based on the marital status of their adoptive parents. Such disparate treatment strikes at the core principle established in this Court’s cases forbidding discrimination based on illegitimacy or on the immigration status of a child’s parents. This Court has made clear that government discrimination against children based on disapproval of their parents requires careful scrutiny, and strong justification, under the Equal Protection Clause. The Fifth Circuit’s disregard of these constitutional concerns creates a further issue warranting this Court’s consideration.

  • 30. AnonyGrl  |  July 11, 2011 at 3:38 pm

    Now that the couple CAN get married, if they do, will LA change their stance?

  • 31. Alan_Eckert  |  July 11, 2011 at 4:27 pm

    Which state's laws on marriage trumps the other's? It can be argued that LA shouldn't have to recognize NY's marriage laws, but the same argument could be made that NY shouldn't have to recognize LA's lack of marriage rights for same-sex couples. Unfortunately, stuck in the middle is the kid. The best thing for the kid is to have the certificate changed.

  • 32. Mtn Bill  |  July 11, 2011 at 5:27 pm

    I wonder how germane is the case involved with the lesbian couple over child custody and visiting rights between VT and VA. One of the parents had moved to VA to avoid the decision of the VT court. I think the US Supreme Court upheld VT citing federal child adoption statutes.

  • 33. Leo  |  July 11, 2011 at 5:35 pm

    First off, is LA's stance known for a straight unmarried couple that adopts, but then marries? If they still treat the adoption as invalid, then the same can be expected for a same-sex couple. Otherwise, would be interesting to find out. I'll guess no, they won't change their stance.

  • 34. pgbach  |  July 11, 2011 at 9:08 pm

    Agreed. There are definitely at least 4 votes to grant cert. As I read the petition, I think the odds are 60-40 of a 9-0 SCOTUS decision against LA. This will not be a 5-4 decision. The legal questions are foundational. FFC issues cross all areas of law, most importantly business law. Expect numerous amicus curiae briefs in opposition to LA in this case. In fact, I suspect many state attorneys general will file amicus curiae briefs. The current child support enforcement process depends upon the FFC.

    Kevin, your last sentence is only point of disagreement. It is LA statutory law that requires the ministerial change in the records. As a matter of law, this case has nothing do with LA adoption law. Herein lies a equal protection claim under both the US and LA constitutions. The LA registrar is a governmental minister with no discretion vis-a-vis performing his/her duties per LA law.

  • 35. Bryce  |  July 12, 2011 at 3:43 am

    SCOTUSblog has a great piece on this: http://www.scotusblog.com/2011/07/gay-adoption-ca

  • 36. Bryce  |  July 12, 2011 at 4:19 am

    Here is an LGBT activist/attorney's take on the oral argument: http://beyondstraightandgaymarriage.blogspot.com/
    It is a pretty great analysis too.

  • 37. Neil  |  July 12, 2011 at 6:29 am

    [youtube SbBtNVFjeDA&feature=player_embedded http://www.youtube.com/watch?v=SbBtNVFjeDA&feature=player_embedded youtube]

  • 38. David Henderson  |  July 12, 2011 at 9:58 am

    Actually, the brief appears to include arguments that appeal to a conservative judicial perspective, so if it's not unanimous, I would expect the conservative justices and the liberal justices to reach the same judgment, but perhaps for different reasons ("concurring in part, dissenting in part, and concurring in the judgment").

  • 39. Str8Grandmother  |  July 12, 2011 at 11:18 am

    Enjoyed the video, thanks.

  • 40. Drpatrick1  |  July 12, 2011 at 8:30 pm

    I'd agree if we believed there were ideological purists on the court. I think Scalia and Thomas (perhaps Thomas even more than Scalia) are simply biased, and skew the law to the benefit of their preconceived notions. I think Scalia is guided by his religious philosophy, perhaps more than his judicial training. I think he finds homosexuality repulsive, and a mental illness. I think he thinks it is criminal behavior. I don't think he is at all capable of finding in our favor, no matter what the law shows.

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