The Fifth Circuit dismissed the claims of a same sex adoptive couple that Louisiana violated the Full Faith and Credit Clause (“FF and C”) by refusing to put both their names on the child’s birth certificate.
Under New York law, the couple adopted an infant born in Louisiana and petitioned Louisiana to reissue the infant’s birth certificate with both their names as the child’s parents. The Louisiana Registrar refused on the basis that the couple was unmarried. Smith and Adar brought a claim under 42 U.S.C. § 1983 that Louisiana had violated the FF and C Clause by refusing to give effect to the New York judgment that they were the legal adoptive parents of the infant. On rehearing en banc, the Fifth Circuit stated that there was no federal court jurisdiction under § 1983 for a violation of the FF and C clause, but rather the clause applies only to prevent conflicting state court judgments. Adar v. Smith, 2011 WL 1367493 (5th Cir. Apr. 12, 2011). Judge Edith Jones, nominated by Reagan, wrote the opinion for the en banc majority. Judge Weiner, nominated by Clinton, wrote the dissent, joined by 4 other judges.
In 2006, Mickey Smith and Oren Adar adopted Louisiana-born Infant J through proceedings in New York. After the adoption, they requested that Louisiana’s Registrar of Vital Records and Statistics reissue Infant J’s birth certificate with both their names on the birth certificate. The Registrar refused to reissue the birth certificate with more than one name, arguing that although “adoptive parents” can have a birth certificate reissued, the term “adoptive parents” is limited to married parents under Louisiana adoption law.
Smith and Adar brought a lawsuit for declaratory and injunctive relief. They claimed that they were entitled to relief under 42 U.S.C § 1983 because the Registrar had violated the Full Faith and Credit Clause of the Constitution as well as the Equal Protection clause by refusing to accept New York’s determination that Smith and Adar were the “adoptive parents” and reissue the birth certificate. The District court found for Smith and Adar on the FF and C claim. The Registrar appealed, and a panel of Fifth Circuit judges found that the Registrar had misinterpreted Louisiana law and should have reissued the birth certificate. The Circuit then decided to rehear the case en banc, and to re-evaluate the plaintiffs’ claims.
The en banc court found that the plaintiffs had standing for their claim. The Registrar’s denial was a redressable injury.
The court next considered whether the FF and C Clause can be enforced via § 1983. The plaintiffs argued that New York had declared them to be Infant J’s adoptive parents, and that Louisiana was not giving full faith and credit to that determination when the Registrar found they were not “adoptive parents” within Louisiana’s adoption law. The court disagreed, holding that the Clause applies only to a subsequent law suit in state court and does not confer jurisdiction in federal court. The court stated: “Section 1983 has no place in the Clause’s orchestration of inter-court comity—state courts may err, but their rulings are not subject to declaratory or injunctive relief in federal courts.”
The court indicated that the FF and C Clause did not confer a cause of action to sue the Registrar, but rather only to compel a state court apply res judicata to a previous court decision on the same issue in another state. The court stated: “The cases thus couple the individual right with the duty of courts and tether the right to res judicata principles.” If a state court refuses to apply res judicata, then appeal may be had to the United State Supreme Court.
The court acknowledged that Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) permitted an action to be brought via § 1983 to enforce the FF and C Clause when an Oklahoma statute prohibited recognition of same-sex adoptions. The court distinguished the case on the grounds that there was no similar statute in Louisiana and that Louisiana recognized the adoption but just wouldn’t provide a birth certificate with both parents’ names. The court further stated that the Tenth Circuit failed to consider whether there was federal court jurisdiction.
The court suggested that the plaintiffs could have brought a writ of mandamus in Louisiana state court to compel the issuance of a new birth certificate. Then if the state court did not give preclusive effect to the New York state court decision, the plaintiffs could seek review for a violation of the FF and C clause, with appeal to the United States Supreme Court.
But as an alternative holding, the court stated that the Clause does not extend to enforcing the New York adoption decree. The court explained that even if § 1983 provides a remedy for a violation of the FF and C Clause, the plaintiffs would lose because there had been no violation of a right enforceable under the FF and C Clause. The court drew a distinction between the recognition of other states’ judicial judgments and the enforcement of them. The former is required by the FF and C Clause, but the latter is not.
The court reasoned that the Louisiana Registrar was recognizing the validity of the New York judgment as it was required to do by the FF and C Clause. “The Registrar concedes that the parental relationship of Adar and Smith with Infant J cannot be revisited in its courts.” The validity of New York’s judgment that Smith and Adar were the adoptive parents was not in question.
In contrast, the court wrote, whether Louisiana chose to allow unmarried adoptive parents the right to have a birth certificate reissued with their names on it was a question of how Louisiana would enforce the New York adoption judgment. According to the court, “the New York adoption decree cannot compel within Louisiana ‘an official act within the exclusive province’ of that state.” Accordingly, “the full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law.” The court concluded, “In sum, no right created by the New York adoption order (i.e., right to custody, parental control, etc.) has been frustrated, as nothing in the order entitles Appellees to a particular type of birth certificate.”
The court also rejected the plaintiffs’ equal protection claim. The court found that the Louisiana law discriminated between married and unmarried couples, and that unmarried couples were not a suspect class. The distinction was therefore subject only to rational basis scrutiny. The court accepted that Louisiana has a legitimate and rational interest in promoting stable adoptive families and that the state could reasonably conclude that married couples or single unmarried individuals are more likely to provide stability than two individuals part of an unmarried couple.
Judge Revley concurred and criticized the dissent’s position that § 1983 should be available to enforce the FF and C Clause. Judge Southwick concurred as well, stating that he would rather the court had not considered the equal protection argument because it had not been fully addressed in the district court. Judge Haynes concurred and dissented. She concurred with the evaluation of federal question jurisdiction. She disagreed with the majority’s decision that the full faith and credit clause was not violated, and like Judge Southwick, she disagreed with the decision to review the equal protection claim because it was not fully evaluated by the district court.
Judge Wiener’s dissenting opinion would have held that the FF and C Clause is enforceable under § 1983 and that the Registrar violated the FF and C Clause by refusing to reissue the birth certificate. He also contended that the court should not have considered the equal protection claims because the district court did not have an opportunity to decide on the issue. Finally, he argued that the majority erred in its evaluation of the equal protection arguments. According to Judge Wiener, the policy of denying a new birth certificate to the plaintiffs was not rationally related to Louisiana’s interest in furthering in-state adoption by married parents; furthermore, the majority should have evaluated the rationality of the discrimination between unmarried biological parents and the plaintiffs, not between married adoptive parents and the plaintiffs.