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Justice for Infant J and adoptive gay couples


In April 2006, Connecticut residents Oren Adar and Mickey Smith adopted a 1-year-old boy who was born in Shreveport. The two men adopted the child in a New York family court, which allows same-sex couples to adopt. But when they applied to the Louisiana State Registrar for an amended birth certificate listing both men as parents, the state Office of Public Health and Vital Records Registry denied the request, citing a Louisiana law that prohibited in-state adoption by same-sex couples. Adar and Smith sued the state and won. In December 2008, U.S. District Court Judge Jay Zainey ordered the state to provide the family with an amended birth certificate. The state appealed the decision, and the case was argued again last October in the U.S. 5th Circuit Court of Appeals.

  On Feb. 18, a three-judge appeals court panel unanimously ruled the state must issue the requested birth certificate. Citing the Full Faith and Credit Clause of the U.S. Constitution, the appellate court wrote, "The parental rights and status of the Adoptive Parents, as adjudicated by the New York court, are not confined within that state's borders and do not cease to exist at Louisiana's borders; the Registrar points to no precedent or persuasive authority to the contrary."

  That should have resolved the issue. Instead, state Attorney General Buddy Caldwell's office wants the entire 5th Circuit Court to review the case.

  While the state AG's office is ethically obligated to defend even harebrained state laws against constitutional attack, this is a case of Caldwell's office trying to make new law. Two federal courts have ruled that the language in the U.S. Constitution requires the state to amend the birth certificate of the child known as "Infant J" — as it routinely amends other birth certificates, upon request, in cases of adoption.

  As Adar and Smith's lawyers noted, this matter has real-world consequences. While Adar is listed on the birth certificate as Infant J's father, Smith's company provides health insurance for the child — and the health-plan administrator initially refused to insure Infant J, who was born two months prematurely. An accurate birth certificate also is necessary for travel. And if Adar were to die, Smith's legal relationship to the child would be unclear.

  The Louisiana Constitution already prohibits same-sex couples from marrying, establishing civil unions or entering into joint adoption, but apparently that is not enough for some people. In direct response to Infant J's case, state Rep. Jonathan Perry, R-Abbeville, introduced a bill last year to bar the state from issuing birth certificates to couples who were not allowed to adopt under Louisiana law. The measure (backed by Gov. Bobby Jindal and the Louisiana Family Forum) passed the House and was carried to the Senate. There, Sens. J.P. Morrell, Dan Claitor and Butch Gautreaux (two Democrats and one Republican) effectively filibustered it. But there's no guarantee a similar bill won't come back this year or in future sessions.

  There seems little point in continued appeals by the state, other than for Caldwell and others to posture and strut their "family values" bona fides. Nothing in the courts' decisions had anything to do with approval or disapproval of same-sex relationships; it was a matter of Constitutional law, the same Full Faith and Credit Clause that guarantees Louisiana adoptive parents to be recognized as their children's parents if they move anywhere else in the United States.

  Denying adopted children an accurate birth certificate isn't just pointless — it's cruelty disguised as piety. Moreover, continued appeals are an incredible waste of Louisiana taxpayers' money. (If the state loses a third time, taxpayers could be on the hook for Adar and Smith's legal bills.) No one is arguing Infant J has been mistreated or that Adar and Smith are unfit parents; none of the family in this case even lives in Louisiana. Louisiana's only jurisdiction rests in the fact that Infant J's birth papers happen to be in a drawer in Baton Rouge.

  Liberals, conservatives and libertarians ought to agree: taking this case to court a third time is Big Government at its most intrusive. Caldwell's office has lost twice. The state should heed the 5th Circuit Court of Appeals, drop any further appeals, and issue Infant J his rightful birth certificate.

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