Today the American Civil Liberties Union filed a friend-of-the-court brief urging a federal appeals court to uphold its earlier decision ordering Louisiana to issue a birth certificate with the names of both parents to a boy who was adopted by a gay couple in New York.
On February 10, 2010, a three-judge panel of the U.S. Fifth Circuit ruled that the State of Louisiana must treat the boy, born in Louisiana but legally adopted by his two fathers in New York, exactly as it treats other adopted children born in Louisiana, and issue a birth certificate with the names of both of the child's legal parents. The court affirmed the lower court's order requiring the Louisiana Registrar of Vital Records, Darlene Smith, to issue a new birth certificate reflecting the information required by state statute.
Upon request of the Registrar, the case was accepted by the entire U.S. Fifth Circuit acting "en banc" and is set for hearing on January 19, 2011. "It is morally wrong, as well as a violation of longstanding constitutional law, to deny a child an accurate birth certificate just because a state official objects to the child's parents," said Marjorie Esman, Executive Director of the ACLU of Louisiana. "Punishing a child for who his parents are defies all logic as well as all legal principles, long upheld by the U.S. Supreme Court. Louisiana officials should stop trying to dictate morality at the expense of children who need their protection."
The child's parents, Oren Adar and Mickey Smith, adopted their Louisiana-born son in 2006 in a New York court. Although Louisiana law requires issuing a new birth certificate to adoptive parents listing both of their names, the Louisiana Attorney General objected and advised the Registrar that she didn't have to issue the birth certificate because the couple is unmarried and the adoption would not have been granted if they lived in Louisiana. Two courts have already ruled that the Register must issue the birth certificate as requested by the parents, who have hoped to use the it to demonstrate Mickey Smith's status as the child's father for health insurance purposes.
It its friend-of-the-court brief, the ACLU charges that denying a child of unmarried parents a birth certificate that accurately reflects his or her relationship to his or her legal parents singles these children out for discrimination. According to the brief, the only possible reason for the state to deny children of unmarried couples a birth certificate is to express moral disapproval of unmarried couples, which is unconstitutional. Only adopted children of unmarried couples are denied accurate birth certificates under the Registrar's policy, which consigns those children to a less-than-equal status in violation of their rights.
"The Fifth Circuit has already recognized that discrimination against children based on their parents' status is against the law," added Esman. "We hope that the entire court will rule as its panel did previously, when it upheld the district court's ruling in favor of fairness and equality for all Louisiana-born children."
Oral argument in the case will be held on January 19, 2011. Lawyers on the ACLU's brief include Katie Schwartzmann, legal director of the ACLU of Louisiana, and Noah Levine, P. Patty Li, and Matthew D. Benedetto of the New York law firm Wilmer Cutler Pickering Hale and Dorr LLP.
A copy of the ACLU's brief can be found here.