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U.S. Court of Appeals Hears Arguments in Lambda Legal's Case Seeking Birth Certificate for Child Adopted by Two Fathers

(NEW ORLEANS) – A three-member panel of federal judges in the Fifth Circuit Court of Appeals heard today from attorneys on both sides regarding Lambda Legal’s lawsuit against the Louisiana Registrar of Vital Statistics for refusing to respect the New York adoption by a same-sex couple of a Louisiana-born baby boy.

"Decades ago, our U.S. Supreme Court rejected as unconstitutional the premise that a state may inflict harm on children solely as a way to express disapproval of their parents,” Ken Upton, Supervising Senior Staff Attorney for Lambda Legal, told the court. "Ironically, one of the earliest of those cases was against the State of Louisiana. The Registrar's policy appears to be a throwback to that long discredited conduct."

Lambda Legal represents San Diego residents Oren Adar and Mickey Smith in their case against Louisiana State Registrar Darlene Smith. Adar and Smith are a gay couple who adopted their Louisiana-born son in 2006 in New York, where a judge issued an adoption decree. When the couple attempted to get a new birth certificate for their child, in part so Smith could add his son to his health insurance, the registrar’s office told him that Louisiana does not recognize adoption by unmarried parents and so could not issue it.

"You really have to wonder why the attorney general is fighting this so doggedly," said Upton. "The U.S. Constitution spells out that state officials must respect final judgments entered in other states. This includes adoption decrees."

Lambda Legal filed suit on behalf of Adar and Smith in October 2007, saying that the registrar was violating the Full Faith and Credit Clause of the U.S. Constitution by refusing to recognize the New York adoption. The Constitution requires that judgments and orders issued by a court in one state be legally binding in other states as well. The Louisiana attorney general disagreed, and advised the registrar that she did not have to honor an adoption from another state that would not have been granted under Louisiana law had the couple lived and adopted there. Last December, U.S. District Judge Jay Zainey ruled against the registrar and issued a summary judgment ordering her to issue a new birth certificate identifying both Oren Adar and Mickey Smith as the boy’s parents, saying her continued failure to do so violated the U.S. Constitution. The attorney general appealed the case.

Upton also represented Lambda Legal before the 10th Circuit in Finstuen v. Crutcher, another case involving same-sex couples with adopted children. The court rejected the Oklahoma Department of Health’s challenge to a lower court decision striking down an Oklahoma law so extreme that it threatened to make children adopted by same-sex couples in other states legal orphans when the families are in Oklahoma. The ruling is important not only in Oklahoma, but also to families across the United States, including in Seattle and Houston, home to two of the families who joined in the suit.

Kenneth D. Upton, Jr., Supervising Senior Staff Attorney is handling the case for Lambda Legal. He is joined by Regina O. Matthews and Spencer R. Doody of Martzell & Bickford in New Orleans.