RICHMOND — The Virginia Supreme Court yesterday ruled that the state must provide new birth certificates for children born in Virginia and adopted by homosexual couples in other states.
The 5-2 ruling overturned a lower court’s decision that the state is not required to issue new birth certificates for such children. It means the state will be required to issue new birth certificates and substitute the names of two men or two women for those of the child’s biological parents.
Three same-sex couples filed a lawsuit in 2002 after they were unable to get the state Department of Vital Records to give new birth certificates to their adopted children.
The two male couples adopted the children in Washington, D.C., and now live in Bethesda, Md., and Lancaster, Pa. The other couple adopted in New York, where they still live.
Richmond Circuit Judge Randall G. Johnson ruled in February 2004 that requiring the state to issue new birth certificates with the names of the children’s adoptive parents instead of their birth parents conflicts with Virginia’s policy of prohibiting joint adoption by unmarried couples.
Virginia law also prohibits same-sex couples from adopting.
“This case is about issuing birth certificates under the provisions of Virginia law,” Justice Donald Lemons wrote for the majority. “It is not about homosexual marriage, nor is it about ‘same-sex’ relationships, nor is it about adoption policy in Virginia.”
Joining Justice Lemons in the majority opinion were Justices Barbara Milano Keenan, Lawrence L. Koontz Jr., Cynthia Kinser and G. Steven Agee.
Kent Willis, executive director of the American Civil Liberties Union of Virginia, which represented the couples, said the case is “evidence of the deep bias against gays and lesbians that still permeates our society.”
Under Virginia law, the vital records department issues new birth certificates for adopted children in which the adoptive parents’ names are substituted for those of the birth parents.
But when the three couples tried to have their names placed on their adopted children’s birth certificates, the department refused, the ACLU said.
“There is nothing in the statutory scheme that precludes recognition of same-sex couples as ‘adoptive parents,’” the high court wrote in its ruling. “Pursuant to statute, the issuance of the new certificate of birth is to include ‘the names of the intended parents.’”
In their dissenting opinion, Chief Justice Leroy Hassell and Senior Justice A. Christian Compton wrote that Virginia law does not require the vital records department to issue birth certificates identifying same-sex couples as the parents of a child.
Virginia Deputy Attorney General David Johnson argued that changing the documents for some people would not only be cumbersome for the record-keeping agencies but would intrude inappropriately into the public policy debate.
The Family Foundation expressed dismay over the court ruling, calling the case “another effort by homosexual groups to circumvent the will of Virginians.”
The Virginia case is not without precedent, said Patricia Logue, senior counsel for the homosexual civil rights group Lambda Legal, which filed a friend-of-the-court brief on the couples’ behalf.
“The vast majority of states provide accurate birth certificates, but there are a few reluctant stragglers,” Miss Logue said.
In March 2003, a Mississippi judge ordered the state to give a new birth certificate to a Mississippi-born child adopted by a lesbian couple in Vermont. The judge ruled that Mississippi laws did not indicate what sex adopting parents must be.
The state did not appeal the ruling, but the legislature has since outlawed adoptions by same-sex couples.