Full Fifth Circuit Says Louisiana Can Ignore Gay Fathers

News for the Week Ended April 13, 2011
BY ANN ROSTOW


Full Fifth Circuit Says Louisiana Can Ignore Gay Fathers

My jaw is on the floor after reading one of the most egregiously antigay federal appellate opinions of the last decade.

That’s significant because these last ten years have seen a steady, and rapid, improvement in judicial consideration of gay rights cases, mainly due to a realization that gay litigants are regular human beings like everyone else---and also due to the layers of pro-gay precedent laid down by the U.S. Supreme Court and other federal tribunals.

Now comes the full bench of the U.S. Court of Appeals for the Fifth Circuit, a conservative court according to conventional wisdom, but still! In an 11-5 decision released Tuesday, the court basically ignored the text and spirit of the Full Faith and Credit Clause, ruling that the Louisiana state registrar had every right to withhold a corrected birth certificate from the adopted son of two gay men from out of state.

Oh, there was no direct antigay language in the opinion. Instead, the majority tied itself in knots trying to insist that the refusal to issue a birth certificate did not in any way indicate that the state of Louisiana was refusing to give full faith and credit to the out of state adoption.

Of course Louisiana “recognized” the adoption! It’s just that the registrar didn’t want to put both fathers’ names on this little certificate thingy because Louisiana prefers adoptions by married families or singles. But, hey! It’s not as if the registrar undid the adoption. In fact, the registrar even offered to put one of the father’s names on the birth certificate! Heads or tails?

Tell that to the father who’s name would not appear on his son’s birth certificate. Tell that to the bureaucrats and passport officers and school authorities and everyone else who will be relying on this paperwork over the next 80 years or so, assuming the five-year-old has a long life.

As for the Full Faith and Credit Clause, Article IV of the Constitution which requires that states respect the public acts, records and judgments of sister states, the court ruled that individuals can’t sue state actors in federal court under the Clause. Their only option is to sue in state court for the withheld recognition, and then appeal to the U.S. Supreme Court if they lose.

That’s simply not the case! And no amount of citations to pre-war (and even 19th century) precedent will make it true. To be clear, Louisiana law requires the state to issue a revised birth certificate, listing the names of the legal parents of a child born in the state and later adopted. There’s no gay exception. There’s no public policy exception. It is mandatory.

Now what? Lambda Legal Defense is presumably considering an appeal to the U.S. Supreme Court. If they appeal, I bet the High Court would accept the case.

First, because the Fifth Circuit decision is in direct opposition to an Oklahoma case, where the U.S. Court of Appeals for the Tenth Circuit struck the Sooner law against issuing revised certificates to the adopted progeny of gay parents. As you know, the High Court exists in part to resolve disputes among the federal appellate courts.

Second, because at least four members of the Supreme Court will probably want to clarify the jurisdictional scope of the Full Faith and Credit Clause.

But meanwhile, this case is amazing. And it serves as a depressing reminder --- to me at least – that for all our progress, we still have a long way to go.

You’ll be pleased to know that I skipped an entire discussion about the Equal Protection claim that was also rejected by the court, even though the issue was set aside by both the trial court and the three-judge panel. Normally, a reviewing court does not meddle in claims that have not been addressed by the lower courts, but hey. This is Louisiana, and this is the Fifth Circuit (which also governs my home state of Texas).

Anyway, keep on eye on this case, because it may be the next major gay rights claim to hit the High Court.
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Pause For the President

I’m about to turn on the TV and watch Obama wrestle with the deficit, which has somehow emerged as the Number One Priority of the United States, even as the economy struggles to recover, joblessness remains above 9 percent and three wars continue in various stages.

Fine! Cut the deficit. But stop with the crazy talk about how America is broke. We’re not.

And stop with the inane analogy to the average family cutting costs around the kitchen table. The average family lives with long-term debt, mortgages and loans of all sorts. They don’t plan to pay off the house in ten years. And the average family doesn’t take a voluntary pay cut, which America has done thanks to the Bush tax cuts. And no, America’s millionaires are not “creating jobs” with their tax savings. They’re setting up trust funds for their kids. And finally, when the average family does sit down at the kitchen table, they cut restaurant dinners, not the kids’ textbooks or annual medical checkups.

I’m back.

That was a remarkable speech. I almost cried. That’s all I’ll say, since I hear the siren song of GLBT news calling me back.
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Congress For Dummies

You may recall that the House Armed Services Committee recently held two hearings on the repeal of Don’t Ask Don’t Tell, a subject that frankly, has started to exhaust me.

So I saw an audio link to some Q and A from a Republican House member Austin Scott of Georgia to Vice Admiral William Gortney and I reluctantly clicked.

Apparently, Congressman Scott was under the impression that gay men and women were usually discharged for violating the military code, in other words for having illicit sexcapades. Admiral Gortney patiently explained that no, gay servicemembers rarely violate the code. They are simply discharged for being gay. Scott seemed perplexed and confused by this new information.

Can you believe that? A member of the House Armed Services Committee, conducting a hearing on Don’t Ask Don’t Tell, with not the slightest clue about how the law operates or how it’s been enforced?

By the way, those hearings did nothing to stall the schedule for repealing the military ban, since all the military mucky mucks said the training for repeal was going fine and there were no anticipated problems.

And while we’re on the subject of Congress, there’s a hearing on the legal defense of the Defense of Marriage Act set for Friday in the House Judiciary’s subcommittee on the Constitution. Presumably, this conclave will examine exactly how and when Congress will attempt to intervene in some or all of the DOMA challenges now advancing in the federal courts.

So far, they seem to have done next to nothing, which is fine by me. With the Justice Department backing away from the marriage cases, Congress is theoretically supposed to fill the breach in two cases now pending before the U.S. Court of Appeals for the First Circuit, as well as a case in federal court in New York and another in Connecticut. There’s also a federal DOMA challenge in Oakland, and there’s about to be one in San Francisco.

I would love to be a fly on the wall in that subcommittee room.

Think about it. The bill for defending one case, or even two, could be explained away as a necessity to protect Congressional integrity—or something. I don’t know. But the cost and continued publicity of fighting six or seven or a dozen cases? John Boehner and the House republicans are trying to present themselves as hard charging deficit hawks. The last thing they need is to be seen leading an ongoing, and expensive, attack on gay couples in courts around the country.

And you know, this isn’t an abstract political posture. In the New York case, for example, Mr. Boehner and company will be arguing that a little old lady should pay estate taxes of over $300,000 on the house she owned for decades due to the death of her longtime partner and legal wife. That will look really good.

True, the “cost” of litigation will be miniscule compared to the budget deficit. But the media and the pundits enjoy blathering about “millions” being spent on this or that, as if “millions” had the slightest impact on the national deficit. So I hope down the road we’ll be hearing about the “hundreds of thousands” wasted on this exercise.
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Former Foe Now Fights For Marriage

I was happy to read that the guy who dreamed up that traditional marriage bus tour has had a change of heart and now recognizes that same-sex couples should have the right to marry.

It’s not often you witness such a 180 degree turnaround, but Louis J Marinelli has not only turned around, he has written a fund raising email for the Courage Campaign in an effort to undo some of the damage he caused by his antigay activism.

Marinelli conceived of the cross-country bus tour, and presented the idea to the National Organization for Marriage (NOM), which jumped on the plan. For months, the little band of antigay activists drove around from town to town, invariably greeted by a handful of conservatives (if any) and a large crowd of gay marriage supporters, waving banners and chanting.

Marinelli also set up a traditional marriage web page, and became disturbed by the level of antigay hatred it attracted. After talking to the gay activists he met on the bus tour, and seeing first hand the venom spewing from the other side, Marinelli became convinced that civil marriage was not a Christian issue, and that the fight against gay couples was a dehumanizing mistake.

After coming out publicly last week, NOM announced that Marinelli was little more than an independent “bus driver” who had no real connection to the organization. Hmmmm.

I can’t count the number of essays and statements I’ve read from people who once opposed marriage equality to a greater or lesser degree, but who now support our right to wed. Politicians, activists, pundits, ex-presidents, and soon perhaps, a current president.

But I have never encountered a gay marriage supporter who thought about the issue and decided that when all is said and done, it’s probably best that gay couples be denied the right to marry. The fight for marriage equality may be slow, but it only moves in one direction.
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Unanimous Victory For Arkansas Parents

Five pm eastern standard time. Cocktail hour! I only have 200 words left so what harm can it do?

Indeed, cocktail in hand (actually a glass of rose), I am now prepared to tackle the Arkansas Supreme Court’s unanimous decision to strike the state ban on adoption or foster parenting by unmarried cohabiting couples. The Hog state has a long history of trying to outlaw gay adoptions, and after agency regulations to that effect were struck by successive courts (on technicalities) the voters got together to pass their own adoption ban in November of 2008.

Now, after skirting the core issues in a previous case, the state high court has finally and definitively weighed in on the subject, ruling that fundamental due process rights do not allow the state to put marital restrictions on parenting.

Adoptions and foster parents are selected on a case-by-case basis after a home study and so forth. In this case, the idea of preemptively barring a huge category of prospective households did not pass the smell test, otherwise known as strict scrutiny. Note that Arkansas’s law banned any unmarried couple, straight or gay, from applying to become adoptive or foster parents. And it did so for no reason save vague references to an ideal home. This, said the court, was a violation of privacy rights under the Due Process Clause, forcing people to pick and choose between their intimate relationships and their desire to adopt or foster.

Yay Arkansas Supreme Court! Boo Fifth Circuit.