5th Circuit Denies Birth Certificate to Son of Gay Dads

bob · **Posted:** Mon Apr 18, 2011 12:05 pm

Quote:

In a disappointing ruling issued yesterday, the U.S. Court of Appeals for the Fifth Circuit ruled that the [highlight]Full Faith and Credit Clause of the U.S. Constitution[/highlight], which generally requires one state to give effect to the legal proceedings of another states, does not protect the right of an unmarried same-sex couple to have their adopted child’s birth certificate reissued with both of their names on it. The court also ruled that the couple’s right to equal protection of the laws had not been violated and ordered the case dismissed.

[...]

In December 2008, a federal district court ruled in favor of Smith and Adar on their full faith and credit claim and ordered Louisiana to provide a new, accurate birth certificate for their child. Louisiana officials appealed and a three-judge panel of the Fifth Circuit upheld the lower court’s decision, concluding that Louisiana law required the registrar to issue the new birth certificate including both Smith and Adar. At Louisiana’s request, an en banc panel of sixteen judges of the Fifth Circuit then reheard the case, leading to today’s decision.

In an opinion authored by Judge Edith Jones, the [highlight]majority of the en banc panel[/highlight] ruled that the plaintiffs were not entitled to sue for their full faith and credit rights, and that even if those rights existed, they could be ruled on only by the United States Supreme Court. Additionally, the court ruled that even if Smith and Adar were entitled to bring that claim, those rights were not denied in this case because Louisiana was not refusing to recognize the New York adoption, only to issue a birth certificate with both parent’s names on it.

Adar v. Smith, No. 09-30036 (5th Cir. Apr. 14, 2011) (en banc) [Full decision].

I mention this case only because it has been cited by birthers to "explain" how the full faith and credit doesn't apply to birth certificates. (Also, I believe this sets up circuit conflict (with the 10th, IIRC) on this issue.)

Butterfly Bilderberg · **Posted:** Mon Apr 25, 2011 7:09 pm

The Adar case is inapposite. The full panel did not hold that the State of Louisiana is free to disregard the decree of the New York court that finalized the adoption, nor is there any hint that Louisiana is not required to accord full faith and credit to the child's birth certificate issued by a sister state. What the court actually held is that Louisiana's refusal to issue a REVISED. birth certificate with a LOUISIANA certification naming the two fathers, upon registration of the adoption, does not give rise to a section 1983 right of action for discrimination. There id no discrimination because Louisiana AGREES to issue a COLB for the child under its laws recognizing single parent adoptions BASED UPON THE SISTER STATE'S ADOPTION DECREE AND BIRTH CERTIFICATE. The child has not been discriminated against, under the reasoning of the majority.

TollandRCR · **Posted:** Mon Apr 25, 2011 10:27 pm

I was once told by my attorney son (who clerked for one of the 5th Circuit Appeals Justices) that the Fifth Circuit was the least-often overruled of the Appeals courts. The 9th was the most. Is that still true?

bob · **Posted:** Mon Apr 25, 2011 11:40 pm

TollandRCR wrote:

I was once told by my attorney son (who clerked for one of the 5th Circuit Appeals Justices) that the Fifth Circuit was the least-often overruled of the Appeals courts. The 9th was the most. Is that still true?

"Most" and "least" require context -- in absolute numbers, or as a percentage of their dockets?

The 9th, for example, has the most cases reversed, but it is also the largest circuit. As a percentage of its docket, the 9th Circuit is not the "most" overturned.

Also, time frames are an issue. For example, the 9th does get overturned a lot (as do all courts by SCOTUS), but 6th is presently 0-15.

Butterfly Bilderberg · **Posted:** Tue Apr 26, 2011 7:25 am

What bob said.

The size of the Ninth Circuit's docket has fostered proposals to divide the circuit and create a Twelfth Circuit. How to split is the problem. More than fifty percent of the appeals come from the California districts alone, so there is reluctance to create a single-state federal appellate court. Even then it would still be the circuit with the heaviest load, and in pure numbers one of the "most reversed" on that basis.

bob · **Posted:** Tue Apr 26, 2011 4:34 pm

Butterfly Bilderberg wrote:

There id no discrimination because Louisiana AGREES to issue a COLB for the child under its laws recognizing single parent adoptions BASED UPON THE SISTER STATE'S ADOPTION DECREE AND BIRTH CERTIFICATE.

So is the child entitled to two birth certificates (one for each dad)?

Offtopic :

Regarding "overturnedness": Judge Posner wrote a law review article (29 J. Legal Studies 711 (2000)) in which he examined the reversal rates for the 12 circuits (11 + DC) from 1985-1997.

For that time period, the 9th had the highest percantage (of its total docket) of summary reversals (which don't occur that often) (the 1st, 7th, and DC had none); the 9th also had highest percentage of unanimous nonsummary reversal (the 11th* was the lowest); the highest percentage of nonsummary, nonunanimous reversals was the DC Circuit (11th was again the lowest). (Posner, a huge critic of the 9th, handwaives that away.)

Mind you: We're talking about the difference between a 99.88% affirmance rate (11th) and a 99.57% affirmance rate (DC).

Regarding circuit splits: For political reasons, a circuit will have at least three states in it. California is approximately half of the 9th's docket. So if the goal really was to split the docket up, you would choose California and two states with smallest dockets. I don't recall presently which states they are, but I remember those three states aren't contiguous. So the "smallest docket" proposal usually is California, Hawaii, and Alaska; however, Alaska doesn't want to be in 9th, so that's probably not viable from a politics standpoint. (In 1995, a bill in Congress suggested the 9th consist of California, Hawaii, and the pacific territories; this violated the "three state" "rule.")

A related issue is the division of judges. Most proposals to split would allocate more judges to the new 12th than would stay behind in the old 9th. Which would effectively increase the case/judge ratio in the old 9th -- and the "reason" given for splitting the 9th is that the case/judge ratio is already too high.

* The 11th was part of the 5th, but they split in 1981.

much ado · **Posted:** Tue Apr 26, 2011 6:59 pm

bob wrote:

Butterfly Bilderberg wrote:

There id no discrimination because Louisiana AGREES to issue a COLB for the child under its laws recognizing single parent adoptions BASED UPON THE SISTER STATE'S ADOPTION DECREE AND BIRTH CERTIFICATE.

So is the child entitled to two birth certificates (one for each dad)?

Perhaps this has already been discussed and, if so, I apologize in advance, but would it be possible to ask New York to issue an amended birth certificate showing both men as parents and then ask Louisiana to issue a COLB based on the amended New York certificate? What could Louisiana do then?

Falsehoods unchallenged only fester and grow.

5th Circuit Denies Birth Certificate to Son of Gay Dads

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