by William C. Duncan
This article was published as an exclusive work for the Ruth Institute newsletter published March 30, 2010.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit recently issued an opinion ordering the State of Louisiana to issue an amended birth certificate for a child born in Louisiana but listing as the child’s parents two men. The child had been adopted by a male couple in New York. The court believed this result was mandated by the U.S. Constitution’s Full Faith and Credit Clause. The bad news is that I believe the Fifth Circuit panel was mistaken in this case, called Adar v Smith. Not long after the decision was released, the State of Louisiana announced it would seek a rehearing from all of the judges on the Fifth Circuit. The good news is that this petition provides an opportunity for the entire Circuit to provide a more child-friendly ruling, and remedy major defects in the panel’s decision.
Although the New York adoption judgment makes the men “parents” for all legal purposes, they still wanted the modified birth certificate. There was some dispute about whether not having the changed certificate caused any harm. Ultimately the court did not think this was important since it found the men suffered “dignitary” harm by not being able to get Louisiana to participate in their joint parenting project.
The decision of the Fifth Circuit panel had two significant errors. First, the three judges relied on the theory that the Full Faith and Credit Clause requires a state to recognize a valid court judgment from other states. In doing so, however, the court blurred the longstanding distinction between recognizing and enforcing a judgment. While it is true that the U.S. Supreme Court has interpreted the Constitution to require a state to recognize another state’s court judgments, the Court has not mandated the recognizing state to enforce the judgment in a way that would be contrary to that State’s law.
This recognition/enforcement distinction protects our system of federalism by giving due weight to the necessary uniformity required by the Full Faith and Credit Clause (preventing complete legal anarchy as individuals move from state to state) without eviscerating the diversity of the States (which, in turn, protects the valid expectation of citizens that they, rather than the officials of other states, will set their own policies on matters like family).
In this case, Louisiana was not trying to ignore or somehow reverse the New York adoption judgment. It recognized the judgment as valid. Louisiana law, however, does not have a mechanism for enforcing that judgment in the precise way the New York men demanded. It has no birth certificate option for listing two “mothers” or two “fathers” as parents of a child.
This is where the decision’s second mistake arose. It held that Louisiana statutes could be read to allow for the amended birth certificate despite the contrary understanding of the State’s Registrar (the official charged with enforcing the law) and despite statutes to the contrary. The court could have asked the Louisiana Supreme Court to clarify the meaning of the law but chose not to.
Perhaps this is because the question would not have yielded the answer the court reached. In fact, Louisiana law does allow for amended birth certificates where there is an adoption. Louisiana law says, however, that a birth certificate “shall” include the names of the father and mother of the child. There is no provision in the birth certificate statutes for “second parents” or some similar idea. The request the New York couple is making of Louisiana is that the Louisiana officials modify the birth certificate form even though these same officials, in any other circumstances, are required by State law not to accept a form that has been modified.
The implications of these errors are significant. The decision clearly dilutes the crucial constitutional concept of “interstate pluralism,” in Professor Jeffrey Rensberger’s phrase. It allows judges to substitute their judgments of law for the valid actions of legislators and administrative officials charged with making and enforcing a State’s law. It threatens to create a new national standard of parenting whereby a couple can force an unwilling State to participate in their project of acquiring a legally motherless or fatherless child.
The State of Louisiana prohibits same sex marriage, and same sex adoption, in part because it wants its law to reflect the reality that men and women are not interchangeable. Surely it is inherently valuable to allow the State of Louisiana to promote this child-centered policy that encourages a father and mother for a child whenever possible. Especially as it can do so without interfering with the laws of other States.
The entire Fifth Circuit, or barring that, the Supreme Court, should rectify this misinterpretation of the Constitution and overreach by the federal courts.
Ruth Institute Advisory Board Member, William Duncan is the President of the Marriage Law Foundation, which filed an amicus brief in the case supporting the Louisiana Registrar. He writes the monthly Marriage Law Digest for the Institute for Marriage and Public Policy.
