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By Andrew Cohen
Berkeley Law’s Joan Hollinger has filed an amicus brief with the U.S. Supreme Court concerning a controversial interstate adoption case. The brief asks the Court to grant certiorari to review a ruling that allows Louisiana to refuse to update birth certificates for children born there, but later adopted by unmarried parents who live out-of-state.
The brief argues that denying those children an updated birth certificate violates their equal protection rights and the constitutional requirement that a state must fully recognize interstate adoptions. Hollinger, a leading adoption law scholar, filed the brief on behalf of herself and 26 other legal experts, including colleague Herma Hill Kay, who specialize in family law, constitutional law, and conflict of laws.
“Children should never be treated differently because their parents are unmarried,” Hollinger said, “nor should they be denied access to proof of their legal identity and parentage. This decision violates well-established federal constitutional protections. Since the 1960s, the Supreme Court has ruled that disadvantaging children based on their parents’ marital status violates equal protection.”
The case, Adar v. Smith, involves a child born in Louisiana who was adopted by an unmarried couple in New York. When asked for an amended birth certificate that would include the adoptive parents’ names, the Louisiana State Registrar of Vital Statistics refused to issue one. Although state law requires providing an amended certificate to all Louisiana-born adopted children, the Registrar said she was following the state’s policy preference for children to be adopted by married couples.
In 2008, a U.S. District Court judge ordered the Registrar to recognize the child’s adoption and issue an amended birth certificate. In 2010, a three-judge panel of the Fifth Circuit Court of Appeals agreed.
Louisiana’s Attorney General then requested a rehearing by the full Fifth Circuit, which reversed the two prior rulings. The court ruled that the family could not sue a state official in federal court under the constitution’s Full Faith and Credit Clause—and that no equal protection violations occurred.
“The Fifth Circuit opinion will be a very bad precedent if it’s not overruled,” said Hollinger, who expects the Supreme Court to decide in October whether to hear the case. “It would create a subclass of children who are disadvantaged because of circumstances beyond their control and would invite other states to disregard the legal status of certain adoptive families.”
The case presents three main issues: (1) does a state violate the constitution’s Full Faith and Credit Clause when a public official disregards out-of-state adoption judgments; (2) does the federal civil rights statute provide a remedy for violating that clause; and (3) does a state violate the 14th Amendment’s Equal Protection Clause by refusing to issue an accurate, amended birth certificate based on disapproval of the adoptive parents marital status.
“Our argument is that recognizing the Full Faith and Credit Clause at a minimum means providing proof of this child’s identity,” Hollinger said. “This is not just an abstract loss for these children who will have to deal with multiple and ongoing challenges to their legal identity.” She added that denying accurate birth certificates to children adopted by unmarried parents harms them “without advancing any legitimate, much less any important, state purpose.”
Hollinger and her students have been involved in several similar interstate cases regarding adoptions. Each time, they’ve helped secure recognition and enforcement of those adoptions by lesbian, gay, or unmarried couples.
The amicus brief in support of the adoptive family’s Petition to the Supreme Court was filed for Hollinger and the other law professors by their pro bono attorneys at Dewey & LeBoeuf LLP and the National Center for Lesbian Rights.
“If allowed to stand, this ruling would undermine a core purpose of adoption, which is to promote permanency and stability for children,” Hollinger said. “This selective denial stigmatizes and marks these children as less worthy of recognition and protection than children in other families.”