While there has been plenty of speculation that the U.S. Supreme Court will have to address the constitutionality of Section 3 of the Defense of Marriage Act, or the constitutional right of same-sex couples to marry, sometime in the next few years, it seems likely that another important gay rights case may get to the court sooner.
Today Lambda Legal filed a petition seeking Supreme Court review of an April ruling by the 5th Circuit Court of Appeals, in which that court rejected a claim that Louisiana violated the Full Faith and Credit Clause (FFCC) and the Equal Protection Clause of the Constitution by refusing to issue a birth certificate on behalf of a Louisiana-born boy who was adopted in New York by a gay male couple. The case is Adar v. Smith, 639 F.3d 146.
Oren Adar and Mickey Smith applied to Louisiana officials for the birth certificate, listing both of them as parents of their adopted son, attaching a copy of the New York court adoption order. Under the FFCC, "each state" is required to give "full faith and credit" to the court judgments of other states. Under a Louisiana statute, officials are supposed to issue a birth certificate listing the legal parents of a child born in Louisiana when presented with a valid judicial adoption order from another state. Yet the State Registrar, whose duty it is to carry out this law, hesitated and sought advice from the state's Attorney General, who then misadvised her that because Lousiana does not allow umarried couples to adopt a child, she should not issue the birth certificate.
Lambda Legal filed a federal suit on behalf of Adar and Smith, arguing that under the FFCC, Louisiana had to respect their adoption and issue the certificate. The federal district court agreed with Lambda, as did a 3-judge panel of the 5th Circuit. But the state sought and obtained en banc review, and a divided en banc panel reversed on peculiar grounds. The majority of the en banc panel said that the FFCC does not bind state officials such as Registrar Smith, but applies only to state courts. That is, the majority says, contrary to the plain language of the constitutional provision, that the only purpose of the FFCC is to require state courts to honor judgments issued by courts of other states. Thus, said the 5th Circuit en banc majority, the federal trial courts do not have jurisdiction over a suit to enforce the FFCC against a state official. The court went on, improperly, to decide an issue that the trial court and the three-judge panel had avoided deciding – whether refusing to issue the birth certificate also violated the Equal Protection Clause. The en banc majority said it did not, finding that the state could rationally prefer married couples as adoptive parents, a totally irrelevant issue, since the question in this case involves the right to have a birth certificate issued after an adoption has taken place.
The dissent found the majority rulings risible, as do we. The en banc decision creates circuit splits on every issue it addresses, so the grounds for Supreme Court review are quite clear. Most pointedly, this decision directly contradicts a recent 10th Circuit ruling, Finstuen v. Crutcher, 496 F.3d 1139 (2007), which involved essentially the same controversy – a refusal by Oklahoma to issue a birth certificate for an Oklahoma-born child adopted by a same-sex couple in California.
Which leads us to speculate that this case may well be the next "gay rights" case to be considered by the Supreme Court. We probably won't know until the fall, when the Court rules on the accumulated cert petitions from its summer recess.