A federal appellate court decision in Louisiana this week on a birth-certificate dispute may catapult the issue of gay adoption before the U.S. Supreme Court.
“We would definitely welcome this case going to the U.S. Supreme Court,” said Mathew D. Staver, founder and chairman of the traditional-values legal defense firm Liberty Counsel.
The ruling by the 5th U.S. Circuit Court of Appeals on Wednesday says Louisiana does not have to reissue a birth certificate for a Louisiana-born boy to list both of the gay men who adopted him as his fathers.
In Louisiana, only married couples can jointly adopt a child, and state registrar Darlene Smith refused to issue a new birth certificate with two men’s names on it because that would violate state law.
While the Full Faith and Credit Clause of the U.S. Constitution says states should recognize other states’ acts, it does not compel state courts to enforce those acts when contrary to the state’s own law, says the ruling, which was supported entirely by 10 of the circuit’s 16 judges and in part by an 11th judge. Five justices fully dissented.
The 5th Circuit’s ruling, an unusual “en banc” case involving all 16 of the court’s judges rather than a several-member panel, differs dramatically from that of the 10th U.S. Circuit Court of Appeals in another same-sex adoption case.
This “circuit split” should raise the odds that the U.S. Supreme Court will hear the case if the plaintiffs’ lawyers at Lambda Legal ask for review, wrote American University law professor Nancy Polikoff on her blog, Beyond (Straight and Gay) Marriage.
The 5th Circuit decision “is so egregiously wrong that a Supreme Court cert petition may be the way to go,” concurred New York Law School professor Arthur S. Leonard, who follows gay issues in his Leonard Link blog.
A spokeswoman for Lambda Legal said Thursday that the attorneys were still reviewing the Adar v. Smith decision and had not decided on their next step.
Supporters of traditional marriage applauded the ruling.
“Everyone knows two men cannot create a child. Thankfully, the court affirmed that the U.S. Constitution does not force states to pretend they can,” said Austin R. Nimocks, an attorney with the Alliance Defense Fund, which filed a friend-of-the-court brief in the case.
Mr. Staver, who is dean of the Liberty University School of Law, praised the court’s language that a state may “rationally conclude that having parenthood focused on a married couple or single individual — not on the freely severable relationship of unmarried parents — furthers the interests of adopted children.”
This is “an incredible victory” for the mother-father paradigm for family, said Mr. Staver, who also filed an amicus brief in the case.
The Human Rights Campaign, however, lamented that the en banc court overturned earlier rulings in which a federal judge and three-judge appellate panel told Louisiana to issue a new birth certificate naming both Oren Adar and Mickey Smith as fathers.
“We are astonished that Oren and Mickey and their son have been told by this court today that it is OK for the government to discriminate against their family,” Lambda Legal attorney Kenneth D. Upton said this week.
The 5th Circuit ruling comes amid a swirl of news about gay adoption.
On April 7, the Arkansas Supreme Court unanimously struck down a 2008 voter-passed law that disallowed unmarried couples, both homosexual and heterosexual, to adopt or foster.
A similar adoption policy in Virginia also has drawn headlines. Current Virginia policy permits only married couples and single individuals to adopt or be foster parents.
However, this policy was headed for repeal in a proposal written for the state Department of Social Services. The new policy says agencies may not consider sexual orientation, marital status or religion as well as other characteristics when assessing prospective foster and adoptive parents.
When Virginia State Delegate Robert G. Marshall and religious adoption agencies realized this “sleeper measure” was in the policy, more than 1,000 people complained in a public comment website.
Virginia Gov. Robert F. McDonnell has since said he will uphold “the status quo.” In addition, media reports this week said Virginia Attorney General Ken Cuccinelli has advised a Virginia state board that because the proposed adoption policy “does not comport” with state law, the board cannot adopt it.