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Pulling the rug out from underneath gay adoption

By MICHAEL KIRKLAND   |   July 17, 2011 at 3:30 AM   |   Comments

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WASHINGTON, July 17 (UPI) -- A decision by a federal appeals court in New Orleans threatens to undermine hard-won gains by gays and lesbians, and the U.S. Supreme Court is being asked to review it.

The case decided for now by the appeals court deals with adoption by a gay couple, but the decision's implications go far beyond that.

The ruling dilutes the Constitution's "full faith and credit clause," which says, "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

The clause is key to protecting gay rights won in some states, but not in others. Advocates of traditional families, for their part, fear it may be used to shove liberal values down their throats.

The courts have used the clause in some cases, such as collecting child support from out of state, but gay rights advocates hope the clause eventually will weigh heavily on gay marriage and adoption.

In other words, if a same-sex couple is married in a state that allows gay marriages, the clause eventually may be interpreted to require all states to recognize that marriage, despite some state laws forbidding gay marriage.

That goal for gays and lesbians is important in the context of the United States, where only six states allow same-sex marriages (once the newly enacted New York law is implemented) and 39 others define marriage only as the union of a man and woman. The issue is more clouded on gay parent adoption -- a number of states permit one gay parent to adopt, but not both while individual state courts sometimes block all such adoptions by gay couples, saying a child is better off in a home with a mother and a father.

What about on the national level, and that part of the clause that says Congress may enact "general laws" to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof?"

Congress enacted the Defense of Marriage Act in 1996 -- defining marriage only as a union between a man and a woman -- but DOMA has been taking a constitutional beating in the federal courts, and the Obama administration has refused to defend it.

Meanwhile, an array of constitutional cases involving gay rights has been percolating up in federal courts across the country.

Lyle Denniston, the dean emeritus of the Supreme Court press corps writing for SCOTUSBLOG.com, identifies one which already has reached the high court -- it was filed last week. Denniston calls it "a significant test case on whether the Constitution protects same-sex couples' rights as parents."

In the case, a boy identified only as "J.C." was born in Shreveport, La., in 2005 and put up for adoption.

A gay California couple, Oren Adar and Mickey Ray Smith, adopted him under New York law, then went to Louisiana officials to amend his birth certificate to reflect their parentage.

Louisiana's "Record of Foreign Adoptions" statute says the state registrar is the sole custodian of birth certificates of children born in the state. State law also directs the registrar to issue an amended birth certificate to out-of-state adoptive parents who have the proper documentation -- for example, the New York adoption decree.

But the registrar cited Louisiana public policy, which says unmarried couples are not allowed to adopt children jointly, and refused the amended certificate. After Adar and Smith filed suit in federal court, the state registrar offered to issue an amended certificate with only one of the couple's names on it, but the couple refused.

"The inability to obtain a birth certificate, in and of itself a tangible harm, has surfaced repeatedly as an obstacle to ... Adar and Smith exercising their rights and responsibilities as parents," their petition to the U.S. Supreme Court said. "For example, they had great difficulty enrolling J.C. as a dependent on the health insurance coverage Smith has through his employer -- a problem that recurs from time to time when the company conducts internal audits."

Also, Adar and Smith "were stopped at an airport when attempting to board a flight abroad and asked for the child's birth certificate when airport personnel wanted to confirm their relationship to their child. ... Moreover, Adar, himself an adopted child, understands the stigma and dignitary harm that adopted children can experience when they are treated differently and worse than other children."

At first, the couple found success in the federal courts.

A federal judge ruled for them, and a three-judge panel of the 5th U.S. Circuit Court of Appeals (which includes Louisiana) agreed.

The panel unanimously said there are no "'roving public policy" exceptions to the full faith and credit owed to sister-state judgments, and "the forum state may not refuse to recognize an out-of-state judgment on the grounds that the judgment would not obtain in the forum state."

The panel rejected the registrar's attempts to distinguish adoption decrees from other types of final judgments and said, "Louisiana owes full faith and credit to the New York adoption decree that declares [J.C.] to be the adopted child of Adar and Smith," and under the plain meaning of Louisiana statutes Adar and Smith were the adoptive parents of J.C.

However, the full 5th Circuit, sitting en banc in New Orleans, reversed.

The full court ruled 11-5 the requirements in the full faith and credit clause apply only to state courts, not state officials. The majority said even if executive or legislative actions could violate the clause, such violations could not be remedied in federal court using the federal civil rights statute.

The majority said the full faith and credit clause only "govern(s) the preclusive effect of final, binding adjudications from one state court … when litigation is pursued in another state or federal court." Because "the duty of affording full faith and credit to a judgment falls on courts, it is incoherent to speak of vindicating full faith and credit rights against non-judicial state actors" such as the registrar under the federal civil rights statute.

The Lambda Legal Defense and Education Fund, which is representing the California couple, argues that the full appeals court misinterpreted a key Supreme Court precedent to reach its conclusions. The appeals court said the Supreme Court's decision in 1988's Thompson vs. Thompson expressly indicates "the only remedy available for violations of full faith and credit" is to litigate such claims in the state courts and ultimately seek review in the Supreme Court.

A smaller appeals court majority, 9-7, held even if federal civil rights law provided a remedy for state official violations of the full faith and credit clause, there was no violation in the J.C. case because Louisiana is entitled to "issue birth certificates in the manner it deems fit."

"This case raises important questions about whether non-judicial state officials may, in carrying out their official duties, disregard some out-of-state court judgments selectively based on policy assessments about the merits of those judgments," Lambda said in the petition filed for Adar and Smith. "Creating direct conflicts with rulings from several other (appeals court) circuits, the en banc 5th Circuit, with five judges dissenting, has insulated all such actions from scrutiny under the full faith and credit clause of the Constitution. ...

"These rulings, by cutting back sharply on the scope of full faith and credit obligations, have undercut key guarantees that underlie our federal system of government, authorizing state executive officials and legislators in the 5th Circuit to disregard any out-of-state judgment selectively, based on whatever criterion they choose to apply."

The 5th Circuit, one of 12 geographical circuits in the United States (the Federal Circuit is concerned with intellectual property), includes Louisiana, Mississippi and Texas. An eventual decision by the Supreme Court, of course, would apply across the United States.

The Supreme Court should decide on whether to review by next fall after it gets a brief from Louisiana, which would present the case in starkly different terms.

So assuming the justices agree to hear the case, given the split in the circuits, how would gay rights advocates fare in a high court that's been trending sharply to the right?

Four liberals face off against four conservatives, and assuming they divide along that ideological fault line, the deciding vote as usual would belong to Justice Anthony Kennedy, who usually sides with the conservatives.

But not always.

In 2003's Lawrence vs. Texas, which by a vote of 6-3 struck down the Lone Star State's ban on sodomy, Kennedy wrote the majority opinion in the context of a living and evolving Constitution, essentially telling government to get the hell out of the bedroom.

Whatever his feelings on the full faith and credit clause, Kennedy holds no animosity for gays and lesbians.

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," Kennedy wrote in 2003. "In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

He added later: "Had those who drew and ratified the due process clauses of the 5th Amendment or the 14th Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

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