That the U.S. Fifth Circuit Court of Appeals has accepted a case asking Louisiana to recognize a same-sex marriage for records purposes indicates the constitutionally correct solution may be on its way – to which state policy-makers should give an assist.
The case of Adar v. Smith was decided in late 2008 and then affirmed by a three-judge panel of the Fifth Circuit, to which the state appealed. It concerns two males who were married under New York law adopting a child born in Louisiana and their desire to have both names placed on the child’s birth certificate as “parents.” But Louisiana law only allows adoptions to occur by a married couple, defined in the state Constitution as between one man and one woman, or a single individual, while the law regarding certificate issuance states that the adoptive parent or parents can have their name placed upon it (in this instance the actual birth parents, if known, are kept under seal). Because Louisiana states that by request the parents’ names be placed upon the document but that law does not prohibit two or more same-sex parents from being listed, despite the other statute and Constitution, the lower court ruled deference must be given to the “full faith and credit” clause of the U.S. Constitution to have both names put on it.
Wisely, Louisiana appealed because to allow this interpretation to stand attacks the state’s Constitution and erodes the concept of state general police powers (i.e., to regulate the health, safety and morals of the public) in the U.S. Constitution. That the Fifth Circuit is willing to examine it demonstrates a number of its judges question the lower court ruling. That ruling relied heavily on a prior precedent from the Tenth Circuit, but which the previous court admitted did not exactly fit the facts of this case. In essence, the ruling as it exists makes one state’s law take precedence over another state’s constitution, even if each state is supposed to be able to exercise its own police powers.
The prior court ruled Louisiana merely had to execute procedurally in this matter over which the full faith and credit clause had authority and does not alter policy as stipulated in law. Yet in forcing Louisiana to accept two names of the same sex as adoptive parents not only violates its law but politically forces the state to accept same-sex marriages in at least one legal setting. With a precedent established, advocates of homosexual marriages could try to extend it to other areas of Louisiana jurisprudence, such as forcing the state to provide benefits to somebody “married” to somebody else of the same sex in another state, vetoing the expressed will of what a large majority of Louisianans desired.
While the Fifth Circuit looks ready to question the primacy the full faith and credit clause has been given over the general police power, Louisiana could help clarify matters by passing a law that within the part of the statute addressing the execution of issuance of a birth certificate which states only the name of a single individual or married couple if they are defined as married in Louisiana. This should make consistent the issuance part of the statutes with the adoption part, which was enacted in 1991 when there was no such thing in any state (or foreign country) as a same-sex marriage recognized legally.
In 2009 and 2010 bills to do so were introduced in the Legislature – but failed both times as Senate members said they did not want to change a law while under litigation, which is as stupid a reason as ever for inaction. There’s absolutely nothing wrong with the Legislature acting to clarify its intent, and we must recognize that many opponents mouthing such illogic do so because they disagree with Louisiana’s Constitution on this matter and want to change it by undemocratic means.
Possibly the Fifth Circuit will overrule with what’s out there, but Louisiana should make its decision much clearer and easier by passing a clarifying law this year. Just as state Rep. Jonathan Perry did in 2009 and state Sen. Buddy Shaw did in 2010, one or more legislators need to step up and sponsor and get through the Legislature just such legislation. The court may rule before a bill likes this becomes law, but making the law clear never hurts, for the present and the future.
Posted by Jeff Sadow at 07:30