THE BLOG
08/10/2011 03:58 pm ET | Updated Oct 10, 2011

Our Other Credit Problem: States, Equality, and the Full Faith and Credit Clause

The United States has had a lot of credit issues lately. But there's another "credit" debacle, one that is currently sitting on the steps of the U.S. Supreme Court: a state's refusal to give constitutionally-required "full faith and credit" to valid adoptions by gay parents.

In 2006, Oren Adar and Mickey Smith legally adopted a little boy who was born in Louisiana. The valid, legal adoption took place in New York. In order to ensure that their son could be covered by Smith's employer's health insurance and get travel and identity documents, among other rights and benefits, the couple asked Louisiana to issue an amended birth certificate listing them as the boy's parents. Louisiana refused, even though state law requires that when a child born in Louisiana has been adopted in another state, Louisiana must issue an amended birth certificate to the adoptive parents upon presentation of the adoption decree. Louisiana claimed that the New York adoption decree violated its own policy of not allowing joint adoptions by "unmarried persons."

While there are many problems with Louisiana's position in this case, a fundamental legal problem is that the state's refusal to recognize Adar and Smith's valid, out-of-state adoption of their child violates the Full Faith and Credit Clause of the U.S. Constitution (Art. IV, Sec. 1). This Clause requires that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." (Emphasis added.) Unfortunately, the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative circuits in the country, ruled that Louisiana was free to discriminate against out-of-state judgments of adoption, despite the fact that this is exactly the kind of parochial local bias that the Full Faith and Credit Clause was meant to prohibit. Adar and Smith, on behalf of themselves and their son, have filed for review of their case in the Supreme Court.

Our nation's Founders included the Full Faith and Credit Clause in the Constitution to help secure "a more perfect Union," giving judgments issued in one state nationwide force and transforming a confederation of independent states into united states. As the Supreme Court has recognized on many occasions, no state may discriminate against another state's judgments and laws, refusing to enforce them. Anything less would undermine the federal system designed by the framers.

The Full Faith and Credit Clause not only ensures a functioning, cohesive union, it also protects individual liberty. The Clause makes possible a vibrant federal Union in which individuals are free to move from state to state in search of greater opportunities and freedom without fear that rights secured by a judgment in one state will be denied recognition in another. The Full Faith and Credit Clause ensures freedom for all persons by providing that "rights judicially established in any part are given nation-wide application." (Magnolia Petroleum Co. v. Hunt (1943)).

The New York judgment of adoption settled that Oren Adar and his partner Mickey Smith are the parents of their adopted child; as parents, they have the right to be accurately listed on their son's birth certificate, and their child has the right to have them so listed. The text and history of the Full Faith and Credit Clause prohibit a state from refusing to enforce another state's judgment based on disagreement with that state's "public policy." So if Louisiana doesn't want "unmarried" or gay couples adopting a child, that bias doesn't allow the state to refuse to recognize a valid judgment of adoption from a state that doesn't have such discriminatory policies. At least not without violating the Constitution.

Let's hope the Supreme Court does the right thing and takes the case, and then reverses the court of appeals' deeply flawed ruling allowing discrimination against gay parents and their legally adopted sons and daughters. The last thing our country needs is a downgrade of our constitutional Full Faith and Credit.

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