5th US Circuit Court hears arguments for 2 dads
By: JANET McCONNAUGHEY
Associated Press
10/07/09 6:00 PM PDT
NEW ORLEANS — Louisiana is hurting a boy adopted by a gay couple by refusing to put both fathers' names on his birth certificate, the family's attorney said Wednesday.
Louisiana law calls for adopted children to get new birth certificates with their new parents' names, and the state cannot judge an adoption's validity by naming only one parent, Kenneth Upton told a three-judge panel of the 5th U.S. Circuit Court of Appeal.
"It's a legal parent-child relationship that has to be respected," said Upton of Lambda Legal, a nonprofit that represents gays and lesbians in equality and civil rights cases.
He represents Oren Adar and Mickey Ray Smith of San Diego and their son, who was born in Shreveport in late 2005 and adopted in New York State on April 27, 2006.
Although New York allows adoption by unmarried couples, Louisiana law does not. In Louisiana, only married couples and single individuals may adopt.
It doesn't matter whether an unmarried couple is gay or heterosexual — they cannot adopt a child together, Kyle Duncan of the Louisiana Attorney General's Office told Judges Thomas Morrow Reavley, E. Grady Jolly and Jacques L. Weiner Jr.
Duncan said that means the adoptive birth certificate can take only one man's name, and Louisiana cannot be forced to change its records to conform with New York law.
Jolly told Duncan he thought the state's strongest argument was about whether lack of both men's names on the birth certificate was an injury that gave them the legal right to sue in federal court. Jolly told both sides to file briefs on that question within 10 days.
Duncan said Adar and Smith have not shown any threat to their son, and problems getting the boy onto an airplane and included on Smith's insurance from work had both been dealt with.
They want both names on the certificate for "understandable symbolic purposes. But it does not create an injury ... unless it is linked to a real and immediate threat," Duncan said.
An adoption certificate can be used to prove their relationship any place a birth certificate might be used, he said.
He said the question before the court is how state records "should deal with a relationship ... which the state cannot recognize — for same-sex parents."
Upton said most people and legal forms are set up to use birth certificates, and Adar and Smith shouldn't have to go through the additional steps needed to use an adoption certificate instead.
U.S. District Judge Jay Zainey ruled in December that Louisiana's Office of Vital Records must give full faith and credit to the New York State court in which Adar and Smith adopted the boy, and must therefore put both names on the birth certificate.
The judges had hard questions for both sides. But Upton said the questions didn't indicate leanings either way.
"It's clear they had thought about it," he said. "I think we got the best thing we could hope for — a panel that was engaged."
He said adoptive parents have won similar cases in Oklahoma, Virginia and Mississippi. In the Oklahoma case, the 10th U.S. Circuit Court of Appeals ruled in 2007 that the Oklahoma Adoption Code must recognize same-sex adoptions from other states and countries.
"We feel that Oklahoma got it wrong" and the U.S. Supreme Court should decide, Duncan said.
