Child Welfare, Legal Advocates Support Lambda Legal's Petition for Supreme Court Review of Louisiana's Refusal to Issue Birth Certificate to Son Adopted by Two Fathers

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Signatories Include: National Association of Social Workers, Child Welfare League of America, Center for Adoption Policy, Tulane Law School, Juvenile Justice Project of Louisiana and over 60 legal scholars.
August 11, 2011

(New Orleans, August 11, 2011)—The nation's leading child welfare organizations have joined family law and constitutional scholars in support of Lambda Legal's petition for a writ of certiorari asking the U.S. Supreme Court to hear the case of a same-sex couple seeking an accurate birth certificate for their Louisiana-born son whom they adopted in New York. The state of Louisiana has refused to issue a birth certificate listing both fathers as the boy's parents.

"All these organizations agree that denying this child a valid birth certificate simply because you don't like who his parents are is not only wrong, but also harmful to the child," said Kenneth D. Upton, Supervising Senior Staff Attorney in Lambda Legal's South Central Regional Office based in Dallas.

Six friend-of-the-court briefs were filed yesterday:

Child Welfare Organizations Amicus Brief Supporting Cert. (ORRICK, HERRINGTON & SUTCLIFFE LLP)
"A wealth of social research demonstrates the importance of adoption to the stable family relationship every child needs and deserves, regardless of whether or not the parental bond is formed with a married couple, an unmarried couple, or a single parent."

Juvenile Justice Organizations & Legal Groups Amicus Brief Supporting Cert. (BAKER & MCKENZIE LLP)
"Accurate birth certificates are the currency through which adopted children experience the security of family. ...A birth certificate is not a 'benefit,' but rather the recognition of Infant J.'s adoption in order to give it meaning under certain circumstances. Without this recognition, the adoption order lacks a critical component to its meaningful implementation and it threatens the stability and certainty it was instituted to provide Infant J."

Family Law Scholars Amicus Brief Supporting Cert. (Dewey & LeBoeuf LLP and National Center for Lesbian Rights)
"In sum, unless the Fifth Circuit's decision is reversed, every determination that rests on a recognition of parentage—including a parent's power to make educational and health care decisions for their child, custody assessments, and standing in probate actions—could be denied by a State if it regards a certain kind of parent-child relationship as contrary to its 'public policy.' This is precisely the result that the Equal Protection Clause and the Full Faith and Credit Clause are designed to prevent."

Constitutional Law Scholars Amicus Brief Supporting Cert. (SIDLEY AUSTIN LLP)
"And, as this case illustrates, actions by state executive officers can cause the evils the Full Faith and Credit Clause was designed to prevent, by fostering uncertainty, confusion, and delay with respect to issues that should have been resolved by an earlier out-of-state judgment."

Gary Gates & Nan Hunter Amicus Brief Supporting Cert. (THE WILLIAMS INSTITUTE UCLA SCHOOL OF LAW)
"Couples raising adopted children can be affected by an adoption law and administrative practice like Louisiana's not only if the families currently live in or move to states with such restrictive laws, but also if they travel to or through such states. Nearly 25 million visitors are projected to visit Louisiana in 2012 for tourism. Combined, there are more than 300 million tourist visits to these restrictive states each year. While it is not possible to track and quantify how many same-sex and unmarried, different-sex couples with adopted children travel to or through these states each year, given these families' geographic dispersion, range of economic resources, and other types of demographic diversity, it is reasonable to believe that some of them number among the at least 300 million individuals who visit these states annually."

Constitutional Accountability Center Amicus Brief Supporting Cert. (CONSTITUTIONAL ACCOUNTABILITY CENTER)
"Applying its stunted construction of the Full Faith and Credit Clause, the Fifth Circuit held that Louisiana was free to discriminate against out-of-state judgments of adoption, exactly the kind of parochial local bias that the Full Faith and Credit Clause was meant to prohibit."

Lambda Legal represents Oren Adar, Mickey Smith and their son in a case against the Louisiana State Registrar. Adar and Smith are a gay couple who adopted their Louisiana-born son in 2006 in New York, where a judge issued an adoption decree. When the couple attempted to get a new birth certificate for their child, in part so Smith could add his son to his health insurance, the registrar's office told him that Louisiana does not recognize adoption by unmarried parents and would not issue it.

Lambda Legal filed suit on behalf of Adar and Smith in October 2007, saying that the registrar was violating the Full Faith and Credit Clause and Equal Protection Clause of the U.S. Constitution by refusing to recognize the New York adoption judgment because the child's parents are unmarried. The Constitution requires that judgments issued by a court in one state be legally binding in other states. Further, a state may not disadvantage some children over others simply because the child's parents are unmarried. The Louisiana attorney general wrongly advised the registrar that she did not have to honor an adoption from another state that would not have been granted under Louisiana law had the couple lived and adopted there. In 2008, U.S. District Judge Jay Zainey ruled against the registrar and entered judgment ordering her to issue a new birth certificate identifying both Oren Adar and Mickey Smith as the boy's parents, saying her continued failure to do so violated the U.S. Constitution. In 2010, a three-judge panel of the Fifth Circuit Court of Appeals agreed and unanimously affirmed the judgment. The attorney general requested a rehearing by the full Court of Appeals, and a sharply divided court issued a decision this spring overturning the prior decisions.

In July, Lambda Legal asked the U.S Supreme court to review the case arguing 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.

The case is Adar v. Smith.

Kenneth D. Upton, Jr., Supervising Senior Staff Attorney, is handling the case for Lambda Legal. He is joined by Paul Smith of Jenner & Block in Washington, D.C., and Regina O. Matthews and Spencer R. Doody of Martzell & Bickford in New Orleans.

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Contact Info

Contact: Tom Warnke; 213-382-7600 ex 247;twarnke@lambdalegal.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

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