I thought there would be numerous press accounts of the oral arguments last week in
Adar v. Smith. After all, it's a case that exemplifies a significant "culture war" between states that fully respect the ability of same-sex couples to raise children, including adopted children, and states that wish to signal their disapproval of childrearing by same-sex couples in every way they can. In addition, it was an
en banc 5th Circuit argument, meaning that all 16 judges on a court that sits just below the US Supreme Court heard the case. This is not an everyday occurence. (The court's website says that requests for
en banc hearings are granted less than 3% of the time).
But I've listened to the oral argument online now (click
here and look for Oren Adar v. Darlene Smith), and I realize that probably 95% of the time was taken up by legal issues so technical that I had to listen to it twice before even writing this account. So it's no wonder the argument was not covered in a single newspaper or other mainstream media source.
The Louisiana Attorney General's office hopes the 5th Circuit never discusses adoption by a same-sex couple when it rules in the case
. It wants the case dismissed on the basis that the federal court lacks subject matter jurisdiction (meaning the legal authorization) to hear the case. It thinks the Full Faith and Credit Clause is a command to
courts and cannot be the basis of a lawsuit against a state registrar to issue a new birth certificate. Don't even try to understand that if you have taken a law school course in both Civil Procedure and Federal Courts. Some of the judges appeared to think the couple needed to take the case to state court.
Then the state argued that the couple lacks
standing to challenge the refusal of the state to issue a birth certificate because nothing bad has happened to them. Since there is supposedly no evidence that anyone has failed to recognize both men as parents, there is nothing for the court to decide. If that happens, the state argues, then the couple could go to state court and make an argument there.
Well there have been some problems faced by the couple, but, in any event, argued Ken Upton from Lambda Legal on behalf of the couple, not having a birth certificate is an injury. This caused a judge to ask whether a state could refuse to issue new birth certificates at all for any children after they were adopted. That would be an injury without a remedy, Upton answered (because there is no constitutional right to have a birth certificate changed). And therein lies the heart of the case: the state
does issue new birth certificates, but only for children adopted by a single individual or a married couple. That is the
equal protection claim in the case, and it's the dispute about that claim that was so absent in the oral argument.
Anyway, from the Louisiana Attorney General's office, Kyle Duncan argued that the Full Faith and Credit Clause binds the parties only, so neither Dad could challenge the adoption in Louisiana (and the birth parents could not relitigate their consent to the adoption). He said that Louisiana
might, and I want to emphasize
might, have to recognize both men as parents should it come up in such context as the right to recover for the wrongful death of a parent. But he argued that Louisiana does not have to issue a new birth certificate. One state's adoption decree cannot require another state to change its public records, he said. That "
might" drove me nearly insane as I listened to it. The state is not even conceding that the child actually has two legal parents of the same sex. This is very scary stuff.
The state argued that its DOMA requires Louisiana to interpret all its statutes to negate recognition of marriage by same-sex couples. This couple isn't asking for recognition as a married couple at all, so that argument is out of line. But because there is a plausible question under
state law about whether, in fact, the registrar is applying the law properly by considering the state DOMA in refusing to issue a birth certificate, some judges seemed to want the case heard in
state court so that a state court could decide what the state law requires.
There is a bottom line here. Whatever the Full Faith and Credit Clause means, the Equal Protection Clause prohibits a state from distinguishing between children of married parents and children of unmarried parents unless doing so is substantially related to an important governmental objective. Even if the court judged the case on a "rational basis" standard, the state would have to say that the distinction between those to whom it gives new birth certificates and those to whom it does not is rationally related to a legitimate state interest. Here the state says that its birth certificate policy is in keeping with its adoption law that only married couples can adopt in Louisiana. The state argues as though the plaintiffs cannot win unless the court rules it is unconstitutional to deny unmarried couples the ability to adopt children. Here's the quote from the state's brief (although, again, this did not come up in the oral argument):
Louisiana’s birth certificate policy, like the adoption laws undergirding it, enacts a simple intuition: a marriage recognized by law and a common culture provides a better basis for raising children than other relationships. We have not yet reached the point where federal courts will declare, by their own power, that such judgments are nothing more than bigotry.
Maybe so. But this is not what the plaintiffs seek.
So here is where I am left after digesting the oral argument and the briefs in this case. The District Court and the panel of the 5th Circuit that ruled for the plaintiffs ducked the Equal Protection claim by ruling on the Full Faith and Credit claim. If the
en banc court disagrees about the merits of the Full Faith and Credit claim, then I don't see how it can duck the Equal Protection claim. A win on that ground would be sweet, and a loss devastating.