This week, the U.S. Supreme Court declined to hear the case of a same-sex couple denied an accurate birth certificate listing both men as parents of the Louisiana-born child they adopted in New York. The Court left in place a dangerous decision that carves out an exception to the Full Faith and Credit Clause of the U.S. Constitution and leaves adopted children vulnerable when they move or travel from state to state.
This is a terrible outcome, both for the law and for Oren Adar, Mickey Smith and their 5-year-old son. Oren and Mickey are two loving fathers who want only to enjoy the rights and privileges that other adoptive parents enjoy and to provide the stable, nurturing and loving environment their son deserves.
Here's what happened: Oren and Mickey adopted their son in New York. Because he was born in Louisiana, they requested an accurate birth certificate from the State of Louisiana listing them both as parents, which every state routinely provides for children who have been adopted. The Louisiana Registrar refused to issue it in this instance, however, because she believed that as an unmarried couple, Oren and Mickey would not have been eligible to adopt had they lived in Louisiana. Lambda Legal went to federal court on behalf of the fathers and their child, and we won, but Louisiana still refused, and it appealed the decision. We won again at the Fifth Circuit Court of Appeals, but Louisiana continued to refuse to issue the accurate birth certificate. The State Attorney General appealed again, this time requesting a rehearing "en banc" (before all the judges of the Fifth Circuit), and this time, in a sharply divided decision, we lost.
We asked the U.S. Supreme Court to review this case because, by carving out an exception to the Full Faith and Credit Clause of the U.S. Constitution, the Fifth Circuit decision ignores almost 100 years of well-established Supreme Court law and conflicts with other federal circuits across the country. It creates 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.
Officials in the State of Louisiana were willing to weaken the Full Faith and Credit Clause of the Constitution and harm children just to make clear that they do not approve of gay or other unmarried parents. The Supreme Court is willing to let stand a ruling that says you can be a legal parent in one state, but another state can say that you are not. The result of this is that the hundreds of children in foster care in Louisiana who are awaiting adoption are more likely to be kept in foster care than adopted into loving homes, because the state is telling unmarried couples that if they adopt those children in another state, they will not be able to get a corrected birth certificate, and the Supreme Court is allowing them to do so. So, Louisiana officials and the members of the Supreme Court have not only harmed Oren and Mickey's son, but they are harming countless other children.
The inability to obtain an accurate birth certificate creates serious problems. A birth certificate is the only common identity document that establishes identity, parentage and citizenship. An accurate birth certificate is uniformly recognized and often required in legal contexts, including determining the parents' and child's right to make medical decisions for other family members; determining custody, care and support of the child in the event of a separation or divorce between the parents; obtaining a social security card for the child; obtaining social security survivor benefits for the child in the event of a parent's death; establishing a legal parent-child relationship for inheritance purposes in the event of a parent's death; claiming the adopted child as a dependent on the parents' respective insurance plans; registering the child for school; claiming the child as a dependent for purposes of federal income taxes; and obtaining a passport for the child and traveling internationally.
Oren Adar and Mickey Smith are loving parents; no Louisiana state official, circuit court judge or Supreme Court justice can change that. They will continue to provide for their son the stable and nurturing environment that all children deserve. And Lambda Legal will continue to work with them and with other same-sex parents to secure the rights, responsibilities and protections that all parents and children deserve. After the Supreme Court refusal to hear this case, we are disappointed, but we remain determined as ever to keep fighting.
Follow Kevin Cathcart on Twitter: www.twitter.com/lambdalegal