Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

OREN ADAR, individually and as parent and next friend of J.C.A.-S., a minor, and MICKEY RAY SMITH, individually and as parent and next friend of J.C.A.-S., a minor,
versus
DARLENE W. SMITH, in her official capacity as State Registrar and Director, Office ofVital Records and Statistics, State of Louisiana Department of Health and Hospitals.

CIVIL ACTION
07-6541

NO.:

SECt A MAG. 4

SECTION: JUDGE:

MAGISTRATE NO.: MAGISTRATE

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PARTIES
1. Plaintiffs Oren Adar ("Oren) and Mickey Ray Smith ("Mickey") are citizens and residents of the State of California. Adar and Smith each appears individually and as parent and next friend of J.C.A.-8. ("J"), a minor.
2. Defendant Darlene W. Smith ("Smith") is sued in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State ofLouisiana Department of

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Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 2 of 6
Health and Hospitals. Smith is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.
JURISDICTION AND VENUE 3. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 4. This Court has jurisdiction pursuant to 28 U .S.C. §§ 1331 and 1343. Jurisdiction to grant the declaratory relief requested is provided under 28 U.S.C. § 2201. 5. Venue is proper in this district pursuant to 28 U.S.C. § 139l(b) because the defendant resides and offices within the district and a substantial portion of the events giving rise to plaintiffs' claims occurred in this district.
FACTS 6. Oren and Mickey currently live in San Diego, California. Oren and Mickey are the parents of J, who was hom in Shreveport, Louisiana, in 2005. Oren and Mickey jointly adopted J in New York and obtained an Order of Adoption issued by the Ulster County Family Court dated April 27, 2006. 7. Whenever a person born in Louisiana is adopted in a court ofproperjurisdiction in any other state, the state registrar of vital records is the State official authorized, pursuant to R.S. 40:34 D and R.S. 40:76, to create a new record of birth and amend an original birth certificate in accordance with a fmal decree of adoption. 8. Oren and Mickey sought from the Louisiana Office of Public Health, Vital Records Registry, an amended birth certificate from the State ofLouisiaffi'!._that properly identifies both of them as J's legal parents.
2

Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 3 of 6
9. In a letter to Oren and Mickey dated April 27, 2007, Smith rejected the request to issue an amended birth certificate listing Oren and Mickey as J' s parents.
10. In her letter, Smith stated, "The Vital Records Registrar is not required to accept an out-of-state adoption judgment which names two unmarried persons as the adoptive parents." Smith's position is based upon her belief that "Louisiana is not required to accept such an out-ofstate judgment under the Full Faith and Credit Clause of the United States Constitution if it violates public policy."
11. To this day, Oren and Mickey have been unable to obtain an accurate birth certificate for their child, J.
FIRST CLAIM FOR RELIEF Full Faith and Credit
12. Plaintiffs repeat and reallege paragraphs I through II as if set forth in full. 13. Plaintiffs are a same-sex couple who jointly parent their child as legal parents. Their child was adopted in a fmal adoption order entered outside the State of Louisiana. 14. The Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution, provides that ''full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." 15. Adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. There is no roving public policy exception to the full faith and credit due judgments. 16. By her own admission, Smith categorically r~ects a class of out-of-state adoptions decrees Qudgments that name two unmarried persons as the adoptive parents) and, thereby, violates the Full Faith and Credit Clause of the United States Constitution.
3

Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 4 of 6
17. Because Smith denies full faith and credit to plaintiffs' valid adoption decree by
refusing to issue an amended birth certificate for J naming both Oren and Mickey and J' s legal
parents, she violates plaintiffs' federal constitutional rights.
SECOND CLAIM FOR RELIEF Equal Protection
18. Plaintiffs repeat and reallege paragraphs 1 through 17 as if set forth in full. 19. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S. C. § 1983, provides that no state shall deny any person the equal protection of the laws. 20. Smith, acting in her capacity as Vital Records Registrar, recognizes and treats as valid adoptions by individuals or by married couples from any other state and issues accurate amended birth certificates for their adopted children born in Louisiana. Yet, Smith denies the legal benefit of an accurate amended birth certificate to a subset of children who are adopted by unmarried
same-sex couples. In so doing, Smith has subjected J to adverse treatment because the child's
parents are an unmarried gay couple. 21. The disparate treatment of children of unmarried parents based on the conduct or
status of their parents violates the Equal Protection Clause. 22. Smith singles out unmarried same-sex couples and their adoptive children for unequal
treatment for the improper purpose of making them unequal to everyone else. Her actions reflect moral disapproval and antipathy toward unmarried gay couples and their parental status, serve no legitimate government interests and are, therefore, invalid under any form of scrutiny.
23. By refusing to recognize and give effect to J's adoption in birth records and otherwise while recog~izing and giving effect to the adoptions of similarly situated married different-sex
4

Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 5 of 6
couples and individuals, Smith impairs deeply personal relationships, deprives plaintiff parents of their fundamental rights of parental autonomy and deprives Oren, Mickey and J of their fundamental right of family autonomy and integrity on a discriminatory basis.
24. Smith's refusal to issue an accurate birth certificate for J does not serve any compelling, substantial or otherwise sufficient government interest, nor does it serve such interests in an adequately tailored manner. Accordingly, her conduct violates the Equal Protection Clause of the United States Constitution.
RELIEF SOUGHT WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Defendant Darlene W. Smith's refusal to respect Plaintiffs' out-ofstate adoption decree and refusal to issue an amended birth certificate for J violates the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution and Plaintiffs' rights thereunder; B. Declaring that Defendant Darlene W. Smith's refusal to respect plaintiffs' out-of-state adoption decree and refusal to issue an amended birth certificate for J violates the plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; C. Entering an injunction requiring Defendant Darlene W. Smith, in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals Smith, to issue an amended birth certificate to J.C. A.-S. identifying Oren Adar and Mickey Ray Smith as the child's parents; D. Awarding plaintiffs reasonable attorneys' fees and costs under 42 U.S. C. § 1988; and
5

Case 2:07-cv-06541-JCZ-KWR Document 1 Filed 10/09/07 Page 6 of 6
E. Granting such other and further relief as the Court deems just and proper.
Respectfully Submitted, MARTZELL & BICKFORD
SPENCER R. DOODY (#27790) 338 Lafayette Street New Orleans, Louisiana 73130 Telephone No. (504) 581-9065 Fax No. (504) 581-7635 and KENNETH D. UPTON, JR. (pro hac vice motion submitted separately) Lambda Legal Defense and Education Fund, Inc. 3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219 Telephone: (214) 219-8585 Fax: (214) 219-4455 COUNSEL FOR: OREN ADAR, individually and as parent and next friend of J.C.A.S., a minor, and MICKEY RAY SMITH, individually and as parent and next friend of J.C.A.S., a minor
6

 
 Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

OREN ADAR, individually and as parent and next friend of J.C.A.-S., a minor, and MICKEY RAY SMITH, individually and as parent and next friend of J.C.A.-S., a minor,
versus
DARLENE W. SMITH, in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals.

CIVIL ACTION
NO. 07-6541 SECTION: A JUDGE: HON. JAY C. ZAINEY MAGISTRATE NO. 4 MAGISTRATE KAREN ROBY

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PARTIES 1. Plaintiffs Oren Adar (“Oren) and Mickey Ray Smith (“Mickey”) are citizens and residents of the State of California. Adar and Smith each appears individually and as parent and next friend of J.C.A.-S. (“J”), a minor. 2. Defendant Darlene W. Smith (“Smith”) is sued in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 2 of 7
Health and Hospitals. Smith is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint.
JURISDICTION AND VENUE 3. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 4. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction to grant the declaratory relief requested is provided under 28 U.S.C. § 2201. 5. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the defendant resides and offices within the district and a substantial portion of the events giving rise to plaintiffs’ claims occurred in this district.
FACTS 6. Oren and Mickey currently live in San Diego, California. Oren and Mickey are the parents of J, who was born in Shreveport, Louisiana, in 2005. Oren and Mickey jointly adopted J in New York and obtained an Order of Adoption issued by the Ulster County Family Court dated April 27, 2006. 7. Whenever a person born in Louisiana is adopted in a court of proper jurisdiction in any other state, the state registrar of vital records is the State official authorized, pursuant to R.S. 40:34 D and R.S. 40:76, to create a new record of birth and issue a new original birth certificate in accordance with a final decree of adoption. 8. Oren and Mickey sought from the Louisiana Office of Public Health, Vital Records Registry, a new original birth certificate for J, with the original birth certificate being sealed, from the State of Louisiana that properly identifies both of them as J’s legal parents.
2

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 3 of 7
9. In a letter to Oren and Mickey dated April 27, 2007, Smith rejected the request to issue a birth certificate listing Oren and Mickey as J’s parents.
10. In her letter, Smith stated, “The Vital Records Registrar is not required to accept an out-of-state adoption judgment which names two unmarried persons as the adoptive parents.” Smith’s position is based upon her belief that “Louisiana is not required to accept such an out-ofstate judgment under the Full Faith and Credit Clause of the United States Constitution if it violates public policy.”
11. To this day, Oren and Mickey have been unable to obtain an accurate birth certificate for their child, J.
FIRST CLAIM FOR RELIEF Full Faith and Credit
12. Plaintiffs repeat and reallege paragraphs 1 through 11 as if set forth in full. 13. Plaintiffs are a same-sex couple who jointly parent their child as legal parents. Their child was adopted in a final adoption order entered outside the State of Louisiana. 14. The Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution, provides that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” 15. Adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. There is no roving public policy exception to the full faith and credit due judgments. 16. By her own admission, Smith categorically rejects a class of out-of-state adoptions decrees (judgments that name two unmarried persons as the adoptive parents) and, thereby, violates the Full Faith and Credit Clause of the United States Constitution.
3

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 4 of 7
17. Because Smith denies full faith and credit to plaintiffs’ valid adoption decree by refusing to issue a new original birth certificate for J, with the original birth certificate being sealed, naming both Oren and Mickey and J’s legal parents, she violates plaintiffs’ federal constitutional rights.
SECOND CLAIM FOR RELIEF Equal Protection
18. Plaintiffs repeat and reallege paragraphs 1 through 17 as if set forth in full. 19. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall deny any person the equal protection of the laws. 20. Smith, acting in her capacity as Vital Records Registrar, recognizes and treats as valid adoptions by individuals or by married couples from any other state and issues accurate amended birth certificates for their adopted children born in Louisiana. Yet, Smith denies the legal benefit of an accurate birth certificate to a subset of children who are adopted by unmarried same-sex couples. In so doing, Smith has subjected J to adverse treatment because the child’s parents are an unmarried gay couple. 21. The disparate treatment of children of unmarried parents based on the conduct or status of their parents violates the Equal Protection Clause. 22. Singling out unmarried same-sex couples and their adoptive children for unequal treatment for the improper purpose of making them unequal to everyone else reflects moral disapproval and antipathy toward unmarried gay couples and their parental status, serves no legitimate government interests and is, therefore, invalid under any form of scrutiny.
4

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 5 of 7
23. By refusing to recognize and give effect to J’s adoption in birth records and otherwise while recognizing and giving effect to the adoptions of similarly situated married different-sex couples and individuals, Smith impairs deeply personal relationships, deprives plaintiff parents of their fundamental rights of parental autonomy and deprives Oren, Mickey and J of their fundamental right of family autonomy and integrity on a discriminatory basis.
24. Smith’s refusal to issue an accurate birth certificate for J does not serve any compelling, substantial or otherwise sufficient government interest, nor does it serve such interests in an adequately tailored manner. Accordingly, her conduct violates the Equal Protection Clause of the United States Constitution.
RELIEF SOUGHT WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that Defendant Darlene W. Smith’s refusal to respect Plaintiffs’ out-ofstate adoption decree and refusal to issue a new original birth certificate for J, with the original birth certificate being sealed, violates the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution and Plaintiffs’ rights thereunder; B. Declaring that Defendant Darlene W. Smith’s refusal to respect plaintiffs’ out-of-state adoption decree and refusal to issue a new original birth certificate for J, with the original birth certificate being sealed, violates the plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; C. Entering an injunction requiring Defendant Darlene W. Smith, in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals Smith, to issue a new original birth certificate for J.C. A.-S.,
5

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 6 of 7
with the original birth certificate being sealed, identifying Oren Adar and Mickey Ray Smith as the child’s parents;
D. Awarding plaintiffs reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and E. Granting such other and further relief as the Court deems just and proper.
Respectfully Submitted, MARTZELL & BICKFORD
___/s/ Regina O. Matthews______________ REGINA O. MATTHEWS, T.A. (#19038) SPENCER R. DOODY (#27795) 338 Lafayette Street New Orleans, Louisiana 73130 Telephone No. (504) 581-9065 Fax No. (504) 581-7635 and ___/s/ Kenneth D. Upton, Jr.______________ KENNETH D. UPTON, JR. (admitted pro hac vice) Lambda Legal Defense and Education Fund, Inc. 3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219 Telephone: (214) 219-8585 Fax: (214) 219-4455 COUNSEL FOR: OREN ADAR, individually and as parent and next friend of J.C.A.S., a minor, and MICKEY RAY SMITH, individually and as parent and next friend of J.C.A.S., a minor
6

Case 2:07-cv-06541-JCZ-KWR Document 20 Filed 06/30/08 Page 7 of 7 CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2008, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF registrants:
Carol L. Haynes, Esq., Attorney Supervisor Chaynes@dhh.la.us
State of Louisiana Department of Health & Hospitals Beureau of Legal Services – New Orleans Section 1010 Common Street – Suite 800 New Orleans, Louisiana 70131 ATTORNEY FOR DEFENDANT. /s/ Kenneth D. Upton, Jr.______ Kenneth D. Upton, Jr.
7

 
 '-AO 133 (Rev. 0310C8)aBsUel o2fC:o0st7s -cv-06541-JCZ-KWR Document 51 Filed 01/22/09 Page 1 of 1

UNITED STATES DISTRICT COURT ~.m!i~t~fcooa1

for the

, EAlfERRDISTitlCT Or LA

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OREN ADAR, et al.
v.

Eastern District ofLouisiana

to89 JAN 22 PM I: 01

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CasoNo.: 07..S541 A LOREl~tiflHY~

DARLENE W. SMITH

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Bill of Costs

J'udgment having been entered in the above entitled action 12/29/2008 against ....:De;:;..;;;.;;.;fend-.-..ant;;.;.;;._ _ _ __

the Clerk is requested to tax the following as costs: Fees ofthe Clerk .•...••.•....................•...........•...•.•••...•...•........

s_ _ _...s..o. .s....oo;;.;...

Fees for servieo of SlJJDIDODI and subpoena ...•.. ·••...•.........•.. , ............•......••.
Fees ofthe court reporter for an or any part ofthe transcript necessarily obtained for use in the case

327.20

Fees and disbursements for printing ••••.••.........•................•••.••......•..•...

Fees for witnesses (itemize on page two) ..............•......••..........••••...•...•...

0.00

Fees for exemplification and copies ofpapers necessarily obtained for use in the case ............ .

Docket fees under 28 U.S.C. 1923 .•.•.•........•••..••..••.............•...•.......•.• Costs as shown on Malldate ofCOUit ofAppeals •••••.......•..•..............•••.••...•.•

Cot11pensation of court-appoiD.ted experts ••••••••••••••••••••••••••••••••••••••••••••.••

Compensation ofinte.tpteten and costs ofspecial interpretation services under 28 U.S.C. 1828 .....

Other costs (please itemize) ...•..••..••...•.•••••.•.........•••.••..••••.....•••••.•. TOTAL $

682.20

SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.

Declaration

forth- IdeclareunderpenaltyofpeijurytbattheforegoingcostsarecorrectandwerenecessarilyincwrediDthisactiODa:odftmtth.eservices
for which fees have been charged were actually and necessarily perfoxm.ed. A copy of this bill bas been served on all parties in the
following manner.

lZ] Electronic service by e-mail as set

in the attached Certificate of Service.

0 Conventional &erVice by first class :mail, postage prepaid as set forth below.

s1 Attorney: Kenneth D. Upton, Jr.

N~of~: Ke~n~n~eth~D~·~Up~km~·~Jr~·---------------------------------------­

For: Plaintiffs Oren Adar and Mickey Ray Smith

Date: _ __..O..,t/0...,212-=..0..0.9..·.- -

Name ofClaiming Part;y

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

OREN ADAR, ET AL.

CIVIL ACTION

VERSUS

NO: 07-6541

DARLENE W. SMITH, in her capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals

SECTION: "A" (4)

ORDER AND REASONS Before the Court is a Motion for Summary Judgment (Rec. Doc. 27) filed by Plaintiffs, Oren Adar and Mickey Ray Smith, individually and as parents and next friends of J.C.A.-S., a minor (“Plaintiffs”). Defendant Darlene W . Smith, in her official capacity, opposes the m otion. The motion, set for hearing on Dece mber 10, 2008, is be fore the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED. I. BACKGROUND Mr. Adar and Mr. Smith, the Plaintiffs, currently live in San Diego, California. (Compl. ¶ 6). They are adoptive parents of J, born in Shreveport, Louisiana, in 2005. ( Id.). They jointly adopted J in New York and obtained an Order of Adoption issued by t he Ulster County Fam ily

Court, dated April 27, 2006. (Id.). The Plaintiffs allege that they sought from the Louisiana Office of Public Health, Vital
Records Registry, an amended birth certificate from the State of Louisiana that properly identifies both of them as J’s legal parents. (Id. at ¶ 8). According to Plaintiffs, Smith “rejected” the request to issue an amended birth certificate listing the Plaintiffs as J’s parents through a letter dated April 27, 2007. (Id. at ¶ 9, See MSJ Exh. 2). Inthat letter, Smith concluded that Louisiana law and public policy do not permit her to issue a birth certificate with the names of unmarried adoptive parents. (Pl. Stmt. of Facts p. 3). Smith further relied on an advisory opinion from the Louisiana Attorney General’s Office, which concluded that Louisiana is not required to give full faith and credit to an out-of-state adoption decree that violates Louisiana public policy. (Pl. Stmt. of Facts p. 3, see MSJ Exh. 3). Plaintiffs aver that tothis day, they have been unable toobtain an accurate birth certificate for their child, which has caused harm to the Plaintiffs.1 ( (Pl. Stmt. of Facts p. 6-7).
As a result, the Pl aintiffs filed the instant action on October 9, 2007, requesting that the Court enter a judgment in the following respects: (1) declaring that Ms. Smith’s refusal to respect Plaintiffs’ out-of-state adoption decree and refusal toissue an amended birth certificate for J violates the Full Faith and Credit Clause of the Constitution and Plaintiffs’ rights thereunder; (2) declaring that Ms. Smith’s refusal to respect Plaintiffs’ out-of-state adoption decree and refusal to issue an amended birth certificate for J violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (3) entering an injunction requiring Ms.
1 Specifically, the Plaintiffs allege that their inability to obtain a birth certificate for Infant J has caused many problems relating to providing medical insurance for Infant J through the Plaintiffs’ employer.
2

Smith, in her official capacity, to issue an amended birth certificate to J.C. A.-S., identifying Oren Adar and Mickey Ray Smith as the child’s parents;and (4) awarding reasonable attorneys’ fees and costs under 42 U.S.C. § 1988. (Compl. p. 5). The Defendant thereafter filed a Motion to Dismiss for Lack of Jurisdiction (Rec. Doc. 6), which was denied by the Court on April 1, 2008.
In the instant motion, the Plaintiffs move for summary judgment arguing that the Defendant’s interpretation of Louisiana adoption l aw is not supported by the statutes. (MSJ p. 31-32). The Plaintiffs also argue that Smith’s application of the adoption statutes violates the Plaintiffs’ rights under the United States Constitution. (Id.). Specifically, the Plaintiffsargue that the Full Faith and Credit Clause mandates that the Defendant enforce the New York adoption decree without regard to Louisiana’s public policy. ( Id. at 18). Further, t he Plaintiffs contend that Sm ith’s disparate treatment of the Plaintiffs violates the Equal Protection Clause. (Id. at 27).
In opposition, the Defenda nt argues that the state rightfully denied the out-of-state “directive” because it wa s contrary to Louisiana law and public policy. (Mem . In. Opp. p. 3). Under Louisiana law, Smith contends that her discretion to issue a new birth certificate is limited by what types of adoption are allowed under Louisiana adoption law, and she chose to disregard the portions of the directive that did not conform to the statutes. ( Id. at 4). The Defendant further argues that the Plaintiff failed to make the New York adoption executory under Louisiana law, and her refusal to accept the judgment does not violate the Full Faith and Credit Clause.2 II. DISCUSSION
2 Smith relied on an advisory opinion written by the Louisiana Attorney General regarding whether refusing the out-of-state directive would violate the Full Faith and Credit Clause. See La. A.G. No. 03-0325.
3

A. Summary Judgment Standard Summary Judgment is appropriate onl y if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,” when viewed in the light most favorable to the non-movant, “show that thereis no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (198)6). A dispute about a material fact is “genuine” if the evidence is such that a reaosnable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party’s cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed. R. Civ. P 56(e);Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (1993)). B. Full Faith and Credit Clause The United States Constitution states that “FullFaith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. Art. IV, §1. Pursuant to that clause, Congress has enacted 28
4

U.S.C. § 1738.3 The purpose of t he full faith and credit clause was to alter the status of the states as
independent foreign sovereignties, with each free to ignore the obligations created under the laws or the judicial proceedings of the others, and to instead make them integral parts of a single nation through which a remedy upon a just obligation can bedemanded as of right, irrespective of the state of its origin. Milwaukee County v. M.E. White, Co., 296 U.S. 268, 276-77, 56 S.Ct. 229, 80 L.Ed.220 (1935). The United States Suprem e Court has stated that its incorporat ion was for the purpose of transforming sovereign states into a nation, and that the “price” of our federal system means that local policy must sometimes give way. Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948).
In applying the full faith and credit clause, the Supreme Court has drawn a clear distinction between the credit owed tostatutes and judgments. Baker v. Gen. Motors Corp.,522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). With regard to statutes, the full faith and credit clause does not require a state to substitute the statutes of another state for its own when dealing with matters in which it is competent to legislate. Pacific Employers Ins. Co., v. Industrial Accident Comm’n, 306 U.S. 493, 501 59 S.Ct. 629, 632, 83 L.Ed. 940 (1939); see also Nevada v. Hall, 440 U.S. 410, 421-422, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979),Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed. 702 (2003) (stating that full faithand credit is “less demanding” with respect
3 28 U.S.C. § 1738 provides in part: “Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory, or Possession from which they are taken.”
5

to choice of laws). However, the Suprem e Court has made it clear that the f ull faith and credit obligation of a state is “exacting” with re gard to judgm ents rendered by a court with proper jurisdiction, qualifying such judgments for recognition throughout the nation. Baker, 522 U.S. at 233. See also Franchise Tax Bd. v. Hyat,t538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed. 702 (2003) (affirming the holding in Baker). While a court may be guided by public policy in determining the choice of law, the Court in Baker held that there is no “roving public policy exception” to the full faith and credit obligation of states to recognize judgments. Baker, 522 U.S. at 233. Instead, the Supreme Court has held in a number of cases thatfull faith and credit must be given to the judgment of another state even if the forum would not be required to entertain the suit under its own laws or the judgment contravenes the public policy of the forumstate. See Baker, 522 U.S. 222; Milwaukee County v. M.E. White, Co., 296 U.S. 268, Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S.Ct. 208, 213, 88 L.Ed. 149 (1943), Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 643, 52 L.Ed. 1039 (1908).
The Plaintiffs argue that the full faith and cerdit clause requires that the Defendant recognize the out-of-state adoption decree, and cite exte nsive caselaw in support of their position. The Defendant argues that the full faith and credit clause does not require her to accept an out-of-state adoption decree because i t contravenes Louisiana law by allowing two unm arried individuals to adopt jointly, a conclusion she reached relying ona Louisiana Attorney General’s advisory opinion4.
4 The Attorney General’s Opinion, La. A.G. No. 03-0325, relies solely on Bradford Electric Light Company, Inc., v. Clapper, 286 U.S. 145, 159, 52 S.Ct. 571, 76 L.Ed. 1076 (1932). However, the Clapper decision dealt with a statute rather than a judgment. Because this case deals with a judgment, Clapper is distinguishable and does not support the Defendant’s conclusion.
6

This Court finds the Defendant’s argum ents to be without m erit. The Plaintiffs’ out-of-state
adoption decree must be given full faith and credit by Louisiana.
The Defendant in this matter fails to appreciate the long history of precedent regarding full
faith and credit of judgments, which has been thoroughly analyzed by the U.S. Supreme Court in Baker v. Gen. Motors Corp.5 While courts have granted some exceptions to full faith and credit
regarding statutes, there is no suc h exception to the f ull faith and credit obligation regarding
judgments. Id. at 233. The Defendant (and the Attorney General advisory opinion she relies upon)
confuses the issues of Louisiana’s obligation to give full faith and credit to a valid out-of -state
adoption decree and Louisiana’s right to apply itsown laws in deciding what rights flow fromthat judgment. See Finstuen v. Crutcher, 496 F.3d 1139, 1153 (10 th Cir. 2007) (ruling an Oklahom a
statute unconstitutional under the full faith and creditclause because it refused to recognize out-ofstate adoptions by states that permit adoption by same-sex couples).6 While there may be applicable
Louisiana laws regarding the enforcement of rights established by a judgment, there is no question
that the rights granted by the adoption decree are final and enforceable under the full faith and credit
clause. Finally, many courts – including Louisiana’sSupreme Court – have held that valid adoption
decrees from out-of-state are entitled to full faith and credit. See Succession of Caldwell,38 So. 140
5 522 U.S. 222. 6 This Court acknowledges that some of the facts in Finstuen are distinguishable from the facts in this case. Finstuen dealt with an unconstitutional statute banning the recognition of an out-of-state adoption decree. In the present case, there is a dispute over whether the state registrar is authorized to amend a birth certificate based on an out-of-state adoption decree. However, the core issues that arise in both cases remain the same: the interaction between the full faith and credit clause and the forum state’s adoption laws. This Court finds the reasoning in Finstuen to be instructive in this matter.
7

(1905), Alexander v. Gray, 131 So. 639 (La. App. 2 Cir. 1938)B, yrum v. Hebert, 425 So.2d 322 (La. App. 3 Cir 1982). 7 See also Russell v. Bridgens, 264 Neb. 217, 647 N.W . 2d 56 (Neb. 2002), Wachovia Bank and Trust Company v. Chambless, 44 N.C. App. 95, 260 S.E.2d 688.
This Court finds no merit in the Defendant’s argument that there is a public policy exception to this obligation. Regardless ofwhether the out-of-state adoption decree contravenes Louisiana law or public policy, the obligation to recognize the judgm ent under the full fait h and credit clause remains, in the words of the U.S. Supreme Court in Baker, “exacting.” Baker, 522 U.S. at 233. Therefore, the Plaintiffs are entitled to sum mary judgment on this issue, and the out-of-state adoption decree is entitled to full faith and credit.8
C. Louisiana Out-of-State Adoption Statute While Louisiana is required to give full faith and credit to the New York adoption decree, that does not mean that Louisiana must adopt New York’s practice regarding the time, manner, and mechanisms for enforcing the judgment. Baker, 522 U.S. at 235. Enforcement measures remain subject to the evenhanded control of the forum’s law. Id. (citing McElmoyle ex. rel Baily v. Cohen, 13 Pet. 312, 10 L.Ed. 177 (1839)). Therefore, it is necessary for this Court to determine the correct interpretation of the Louisiana out-of-state adoption sat tute. The primary statute at issue is La. R.S. § 40:76, which governs the record of foreign adoptions. It provides:
7 The U.S. Fifth Circuit Court of Appeals has also recognized Louisiana’s longstanding policy of accepting “foreign-created status.” See Kuchenig v. California Company, 410 F.2d 222 (5th Cir. 1969).
8 Because the Plaintiff is entitled to summary judgment on this basis, this Court need not reach the issue of whether the Defendant has violated the Equal Protection Clause.
8

§ 76. Record of foreign adoptions
A. Whe n a person born in Louisian a is adopted in a court of proper jurisdiction in any other state or territoryof the United States, the state registrar may create a new record of birth in the archives upon presentation of a properly certified copy of the final decree of adoption or, ifthe case has been closed and the adoption decree has been sealed, upon the receipt of a certified statement from the record custodian attesting to the adoption decree.
B. The decree is considered properly certified when attested by the clerk of court in which it was rendered with the seal of the court annexed, if there is a court seal, together with a certificate of the presiding judge, chancellor, or magistrate to the effect that the attestation is in due form. The certified statement is considered proper when sworn to and having the seal of the foreign state or territory’s record custodian.
C. Upon receipt of the certified copy of the decree, the state regi strar shall make a new record in its archives, showing:
(1) The date and place of birth of the person adopted. (2) The new name of the person adopted,if the name has been changed by the decree of adoption. (3) The names of the adoptive parents and any other data about them that is available and adds to the completeness of the certificate of the adopted child.
La. R.S. § 40:76 (Emphasis Added).
The Plaintiffs argue that La. R.S. § 40:76 expressly authorizes the Defendant to issue birth
certificate for this out-of-state adoption, and th at the Defendant’s policy is based on a flawed
interpretation. The Defendant argues t hat Louisiana adoption law does not allow her to list two
unmarried persons on a joint birth certificate, and that her discretion is limited by other adoption
statutes. Further, the Defendant claim s that the Plaintiffs have failed to ma ke the judgm ent
executory under La. R.S. § 13:4241.
This Court finds that the out-of-state adoption statute, La. R.S. § 40:76, does authorize the
9

state registrar to issue a birth certif icate upon r eceipt of the adoption decree. C ontrary to the arguments of the Defendant, the plain language of the statute in § 40:76(C) specifically directs the registrar to make a new record upon receipt of the adoption decree, and no limitations or restrictions are present within the language of the statute. The Defendant argues that other statutes, namely La. R.S. § 40:34 and § 40:79, lim it her discretion rega rding the issuance of a new birth certificate. However, the Court finds these arguments without merit, as neither statute specifically addresses out-of-state adoptions in contrast to La. R.S. § 40:769. Rather, the Defendant’s argument that these statutes bar issuance of a birth record is underm ined by the plain langua ge of t he out-of-state adoption statute. Further, the Defendant’s interpretation is flawed because it would render the plain language of La. R.S. § 40:76 meaningless by reading in restrictions and requirements that simply are not present in the text of the statute.
In addition, the Court rejects the Defendant’s assertion that the judgm ent must be made executory before it can be enforced. There is nolanguage in La. R.S. § 40:76 requiring that an outof-state adoption decree be made executory, rather § 40:76(C) specifically provides that the state registrar “shall make a new record” upon “receipt of a certified copy of the decree.” La. R.S. § 40:76 (C). Further, certified out-of-state adoptiondecrees are distinguishable froma typical money judgment that must be made executory before enforcement. Finally, the Court notes that the 10th Circuit Court of Appeals in Finstuen rejected a similar dilatory argument by the Defendant. See
9 La. R.S. § 40:34 contains general provisions regarding vital statistics records, and La. R.S. § 40:79 covers records of adoption decrees. However, the language in La. R.S. § 40:79 suggests that it applies to in-state adoptions, while La. § 40:76 applies specifically to out-of-state adoptions.
10

Finstuen v. Crutcher, 496 F.3d 1139, 1153-1155 (10th Cir. 2007). Therefore, the Court finds that La. R.S. § 40:76 expressly authorizes the state registrar to issue a new birth record upon receipt of a valid out-of-state adoption decree entitled to full faith and credit. Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 27) filed by Plaintiffs, Oren Adar and Mickey Ray Smith, individually and as parents and next friends of J.C.A.S., a minor, is GRANTED.
IT IS FURTHER ORDERED that the Defendant, Darlene W. Smith, in her official capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals, shall issue an amended birth certificate pursuant to La. R.S. § 40:76(C) to J.C. A.-S. identifying Oren Adar and Mickey Ray Smith as the child’s parents.
December 22, 2008 JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
11

 
 Case 2:07-cv-06541-JCZ-KWR Document 69 Filed 03/18/09 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

OREN ADAR, ET AL VERSUS DARLENE W. SMITH

CIVIL ACTION NO: 07-6541 SECTION: A

ORDER For the reasons given orally following a hearing on March 18, 2009, IT IS ORDERED that the Motion for New Trial/Motion to Dismiss (Rec. Doc. 47) filed by the Defendant is DENIED; IT IS FURTHER ORDERED that the Motion for Enforcement of Judgment (Rec. Doc. 62) filed by the Plaintiffs is GRANTED; IT IS FURTHER ORDERED that the Motion to Stay Judgment (Rec. Doc. 66) filed by the Defendant is DENIED; IT IS FURTHER ORDERED that the State Registrar, Office of Vital Records and Statistics, shall issue a completed birth certificate reflecting the names of the adoptive parents in accordance with this Court's judgment within fifteen (15) days of the signing of this order; IT IS FURTHER ORDERED that the Defendant shall file a response to the Plaintiffs' Motion for Attorney's Fees (Rec. Doc. 40) within fifteen (15) days of the signing of this order. New Orleans, Louisiana, this 18th day of March 2009.

JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

 
 Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 1 of 77

U.S. DISTRICT COURT EASTERN DISTRICT 0
FILED MAY - 4 2011
LORETTA G. WHYTE CLERK

United States Court of Appeals Fifth Circuit
STATES COURT OF APPEALS FILED
April 12, 2011

R THE FIFTH CIRCUIT

Lyle W. Cayce Clerk

No. 09-30036

A D.C. Docket No. 2:07-CV-6541

OREN ADAR, Individually and as Parent and Next Friend of J CA-S a minor; MICKEY RAY SMITH, Individually and as Parent and Next Friend of J CA-S a minor
Plaintiffs - Appellees

v.
DARLENE W SMITH, In Her Capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals
Defendant - Appellant
Appeals from the United States District Court for the Eastern District of Louisiana, New Orleans
Before JONES, Chief Judge, and REAVLEY, JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.*
JUDGMENT ON REHEARING EN BANC
This cause came on to be heard on rehearing en bane and was argued by counsel.

_,..

;*t

'Judge King and Judge Graves did not participate in this decisi2J: PD1D0IC1*1S1DiJ.~--W­
_c~n~DeP--
- Doc. No.--....

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 2 of 77
ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the judgment of the District Court in this cause is reversed and remanded for entry of judgment of dismissal.
IT IS FURTHER ORDERED that Appellees Oren Adar and Mickey Ray Smith pay to Appellant Darlene W. Smith the costs on appeal to be taxed by the Clerk of this Court.
REAVLEY, Circuit Judge, concurring. LESLIE H. SOUTHWICK, Circuit Judge, specially concurring. HAYNES, Circuit Judge, concurring and dissenting. JACQUES L. WIENER, JR., Circuit Judge, with whom FORTUNATO P. BENAVIDES, CARL E. STEWART, JAMES L. DENNIS, and EDWARD C. PRADO, Circuit Judges, join, dissenting.
ISSUED AS MANDATE: MAY 0 4 2011
A True Copy
Attest MAY 0 4 2011
New Orleans, Louisiana

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 3 of 77

REVISED April 13, 2011

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UnitedStatesCourtofAppeals
Fifth Circuit
FILED
April12, 2011

No. 09-30036

Lyle W. Cayce Clerk

OREN ADAR, Individually and as Parent and Next Friend of J CA-S a minor; MICKEY RAY SMITH, Individually and as Parent and Next Friend of J CA-S a minor

Plaintiffs - Appellees

V.

DARLENE W SMITH, In Her Capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals
Defendant - Appellant

Appeals from the United States District Court for the Eastern District of Louisiana
Before JONES, ChiefJudge, and REAVLEY, JOLLY, DAVIS, SMITH, WIENER, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges: EDITH H. JONES, Chief Judge:
Mickey Smith and Oren Adar, two unmarried individuals, legally adopted Louisiana-born Infant J in New York in 2006. They sought to have Infant J's
• Judge King and Judge Graves did not participate in this decision.

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 4 of 77
No. 09-30036 birth certificate reissued in Louisiana supplanting the names of his biological parents with their own. According to La. Rev. Stat. Ann. § 40:76(A), the Registrar "may create a new record of birth" when presented with a properly certified out-of-state adoption decree. Subsection C states that the Registrar "shall make a new record ... showing," inter alia, "the names of the adoptive parents." LA. REV. STAT. ANN.§ 40:76(C). Darlene Smith, the Registrar ofVital Records and Statistics, refused their request.1 The Registrar took the position that "adoptive parents" in section 40:76(C) means married parents, because in Louisiana, only married couples may jointly adopt a child. LA. CHILD. CODE ANN. art. 1221. She offered, however, to place one of Appellees' names on the birth certificate because Louisiana also allows a single-parent adoption. Smith and Adar sued the Registrar under 42 U.S.C. § 1983 for declaratory and injunctive relief, asserting that her action denies full faith and credit to the New
York adoption decree and equal protection to them and Infant J.
The district court ruled in favor of Smith and Adar on their full faith and credit claim. Following the Registrar's appeal, a panel ofthis court pretermitted the full faith and credit claim, concluding instead that Louisiana law, properly understood, required the Registrar to reissue the birth certificate. This panel opinion was vacated by our court's decision to rehear the case en bane. Adar v. Smith, 622 F.3d 426 (5th Cir. 2010).
This court must decide whether Appellees' claim for a reissued Louisiana birth certificate rests on the Constitution's full faith and credit clause or equal protection clause. Confusion has surrounded the characterization ofAppellees'
1 The Registrar's duty to maintain vital statistics and records is created within Louisiana's Public Health and Safety Law. LA. REV. STAT. ANN. tit. 40, ch. 2.
2

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 5 of 77
No. 09-30036 claims and their jurisdictional basis. Rather than parse the litigation history in detail, this discussion will demonstrate the following propositions:
1. Appellees have standing to sue for themselves and/or Infant J; 2. The federal courts have jurisdiction to decide whether Appellees stated a claim remediable under§ 1983 for violation of the full faith and credit clause; 3. Appellees' complaint does not state such a claim; and 4. Appellees have failed to state a claim that the Registrar's action denied them equal protection of the laws. We REVERSE and REMAND for entry of a judgment of dismissal by the district court. I. FULL FAITH AND CREDIT
A. Justiciability The Registrar initially contends that Appellees lack standing to sue and that the federal courts lack jurisdiction over the full faith and credit claim. The threshold justiciability questions are novel, but settled principles guide their resolution. In order to establish standing, plaintiffs must show that (1) they have suffered an injury in fact, (2) a causal connection exists between the injury and challenged conduct, and (3) a favorable decision is likely to redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992); Bertulli v. Indep. Ass'n ofCont'l Pilots, 242 F.3d 290, 295 (5th Cir. 2001). We find Appellees have standing because they have been denied a revised birth certificate containing the names ofboth Smith and Adar as parents-the practical significance of which is undisputed-and through this action seek to redress the
3

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 6 of 77
No. 09-30036
denial directly. Because standing does not depend upon ultimate success on the merits, Appellees are properly before this court. See Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206 (1975); Hanson v. Veterans Admin., 800 F.2d 1381, 1385 (5th Cir. 1986) ("It is inappropriate for the court to focus on the merits of the case when considering the issue of standing.").
Further, the court must assume jurisdiction to decide whether Appellees' complaint states a cause of action on which relief can be granted. Bell v. Hood, 327 U.S. 678, 681-82, 66 S. Ct. 773, 776 (1946). Since the absence of a valid cause ofaction does not necessarily implicate subject-matter jurisdiction unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010 (1998) (quoting Bell, 327 U.S. at 682-83, 66 S. Ct. at 776), we may determine whether plaintiffs have alleged an actionable claim under the full faith and credit clause. See Thompson v. Thompson, 484 U.S. 174, 178-79, 108 S. Ct. 513, 516 (1988) (affirming dismissal of full faith and credit suit for failure to state a claim).
B. Full Faith and Credit The questions at issue are the scope of the full faith and credit clause and whether its violation is redressable in federal court in a § 1983 action. Appellees contend that their claim arises under the full faith and credit clause, effectuated in federallaw by 28 U.S. C. § 1738. The Constitution's Article IV, § 1 provides: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such
4

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 7 of 77
No. 09-30036 Acts, Records and Proceedings shall be proved, and the Effect thereof. In pertinent part, the statute states: § 1738. State and Territorial statutes and judicial proceedings; full faith and credit.
Such Acts, records and judicial proceedings or copies thereof [ofany State, Territory, or Possession of the United States], so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U.S.C. § 1738. Infant J was adopted in a court proceeding in New York state, as evidenced by a judicial decree. Appellees contend that Art. IV, § 1 and § 1738 oblige the Registrar to "recognize" their adoption oflnfant J by issuing a revised birth certificate. The Registrar declined, however, to enforce the New York decree by altering Infant J's official birth records in a way that is inconsistent with Louisiana law governing reissuance. See LA. REv. STAT. ANN.§ 40:76; LA. CHILD. CODE ANN. arts. 1198, 1221. Appellees argue that either the Registrar's refusal to issue an amended birth certificate with both names on it, or the state law on which she relied, effectively denies them and their child "recognition" of the New York decree. Thus, the Registrar, acting under color of law, abridged rights created by the Constitution and laws of the United States. 42 U.S.C. § 1983. This train ofreasoning is superficially appealing, but it cannot be squared with the Supreme Court's consistent jurisprudential treatment of the full faith
5

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 8 of 77
No. 09-30036
and credit clause or with the lower federal courts' equally consistent approach. Simply put, the clause and its enabling statute created a rule of decision to govern the preclusive effect of final, binding adjudications from one state court or tribunal when litigation is pursued in another state or federal court. No more, no less. Because the clause guides rulings in courts, the "right" it confers on a litigant is to have a sister state judgment recognized in courts ofthe subsequent forum state. The forum's failure properly to accord full faith and credit is subject to ultimate review by the Supreme Court ofthe United States. Section 1983 has no place in the clause's orchestration ofinter-court comity-state courts may err, but their rulings are not subject to declaratory or injunctive relief in federal courts.
Alternatively, even if the Supreme Court were inclined for the first time to find a claim ofthis sort cognizable under§ 1983, the Registrar did not violate the clause by determining how to apply Louisiana's laws to maintain its vital statistics records. As the Supreme Court has clarified, "Enforcement measures do not travel with the ... judgment." Baker v. Gen. Motors Corp., 522 U.S. 222, 235, 118 S. Ct. 657, 665 (1998). The Registrar concedes it is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be relitigated in Louisiana. That point is not at issue here. There is no legal basis on which to conclude that failure to issue a revised birth certificate denies "recognition" to the New York adoption decree.
1. The full faith and credit clause imposes an obligation on courts to afford sister-state judgments res judicata effect.
To explain these conclusions, we begin with the history and purpose ofthe full faith and credit clause. Under the common law, the concept of"full faith and credit'' related solely to judicial proceedings. In particular, "the terms 'faith' and
6

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 9 of 77
No. 09-30036
'credit' were generally drawn from the English law of evidence and employed to describe the admissibility and effect of items of proof." Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 CREIGHTON L. REV. 255, 265 (1998). These terms were incorporated into the Constitution in the full faith and credit clause.
Early on, the phrase "full faith and credit," when used in conjunction with a judgment, indicated either that a judgment would be given a conclusive, or res judicata, effect on the merits, or that the judgment, when properly authenticated, would "simply be admitted in to [sic] evidence as proof ofits own existence and contents, leaving its substantive effect to be determined by other rules." Id. at 267. The Supreme Court soon rejected the argument that full faith and credit obligations entailed a mere evidentiary requirement, and instead held that state courts would be obliged to afford a sister-state judgment the same res judicata effect which the issuing court would give it. Mills u. Duryee, 11 U.S. (7 Cranch) 481, 485, 3 L. Ed. 411 (1813) (Story, J.); Hampton u. McConnel, 16 U.S. (3 Wheat.) 234, 235, 4 L. Ed. 378 (1818) (Marshall, C.J.). Since then, adhering to the original purpose of the clause, the Court has interrelated the requirement of "full faith and credit" owed to judgments with the principles of res judicata.
According to the Court, the purpose of the clause was to replace the international law rule ofcomity with a constitutional duty ofstates to honor the laws and judgments of sister states. Estin u. Estin, 334 U.S. 541, 546, 68 S. Ct. 1213, 1217 (1948) (the full faith and credit clause "substituted a command for the earlier principles ofcomity and thus basically altered the status ofthe States as independent sovereigns"). With respect to judgments, this meant that other
7

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 10 of 77
No. 09-30036 states' courts were obliged "to honor" the "res judicata rules of the court that rendered an initial judgment." 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4403, at 44 (2d ed. 2002) [hereinafter "WRIGHT & MILLER"]; Magnolia Petroleum Co. u. Hunt, 320 U.S. 430, 439, 64 S. Ct. 208, 214 (1943) (noting that "the clear purpose ofthe full faith and credit clause" was to establish the principle that "a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every court as in that where the judgment was rendered"). The clause thus became the "vehicle for exporting local res judicata policy to other tribunals." 18B WRIGHT & MILLER§ 4467, at 14; see also Magnolia _Petroleum Co., 320 U.S. at 438, 64 S. Ct. at 213 (stating that full faith and credit clause and implementing statute "have made that which has been adjudicated in one state res judicata to the same extent in every other").
Without the clause, unsuccessful litigants could have proceeded from state to state until they obtained a favorable judgment, capitalizing on state courts' freedom to ignore the judgments of sister states. But, as the Court put it, the full faith and credit clause brought to the Union a useful means of ending litigation by making "the local doctrines of res judicata ... a part of national jurisprudence." Durfee u. Duke, 375 U.S. 106, 109, 84 S. Ct. 242, 244 (1963) (quoting Riley u. N. Y Trust Co., 315 U.S. 343, 349, 62 S. Ct. 608, 612 (1942)).
The Court still maintains that the clause essentially imposes a duty on state courts to give a sister-state judgment the same effect that the issuing court would give it. Thompson, 484 U.S. at 180, 108 S. Ct. at 517 ("[T]he Full Faith and Credit Clause obliges States only to accord the same force to judgments as would be accorded by the courts of the State in which the judgment was
8

Case 2:07-cv-06541-JCZ-KWR Document 89 Filed 05/04/11 Page 11 of 77
No. 09-30036 entered."); see also Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 525, 106 S. Ct. 768, 772 (1986). Judgments thereby gain "nationwide force" for "claim and issue preclusion (res judicata) purposes." Baker, 522 U.S. at 233, 118 S. Ct. at 664. For this reason, a state satisfies its constitutional obligation offull faith and credit where it affords a sister-state judgment "the same credit, validity, and effect" in its own courts, "which it had in the state where it was pronounced." Underwriters Nat'l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 704, 102 S. Ct. 1357, 1365 (1982) (quoting Hampton, 16 U.S. (3 Wheat.) at 325). The question, then, is whether this obligation gives rise to a right vindicable in a§ 1983 action. We hold that it does not.
Appellees assert that plaintiffs may employ§ 1983 against any state actor who violates one's "right" to full faith and credit, since§ 1983 provides remedies for the violation of constitutional and statutory rights. Only one federal case, to be discussed later, appears to support this proposition. See Finstuen v. Crutcher, 496 F.3d 1139 (lOth Cir. 2007). Other federal courts, led by the Supreme Court, have uniformly defined the "right" as a right to court judgments that properly recognize sister-state judgments; they have confined the remedy to review by the Supreme Court; and they have held that lower federal courts lack jurisdiction to preemptively enforce full faith and credit claims.2 All of these principles are inconsistent with stating a claim remediable by § 1983.

2 Supreme Court precedent differentiates the credit owed to laws and the credit owed

to judgments. Baker v. Gen. Motors Corp., 522 U.S. 222, 232, 118 S. Ct. 657, 663 (1998).

While the credit owed to laws implicates conflict-of-law rules, the duty with respect to

judgments is simpler, in that subsequent courts must simply apply the issuing state's res

judicata laws.

·

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No. 09-30036 The Supreme Court has described the full faith and credit clause as imposing a constitutional "rule ofdecision"on state courts.3 While the Court has at times referred to the clause in terms of individual "rights," it consistently identifies the violators of that right as state courts. See, e.g., Barber v. Barber, 323 U.S. 77, 81, 65 S. Ct. 137, 139 (1944) ("The refusal of the Tennessee Supreme Court to give credit to that judgment because of its nature is a ruling upon a federal right."); Magnolia Petroleum Co., 320 U.S. at 443, 64 S. Ct. at 216 ("When a state court refuses credit to the judgment of a sister state ... , an asserted federal right is denied."); Titus v. Wallick, 306 U.S. 282, 291, 59 S. Ct. 557, 562 (1939) (same); Tilt v. Kelsey, 207 U.S. 43, 50, 28 S. Ct. 1, 3 (1907) (full faith and credit right was "denied by the highest court of the state"); Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 641-42, 645, 20 S. Ct. 506, 507-08 (1900) (finding that the supreme court of Rhode Island denied plaintiff "a right given by§ 1, article 4, of the Constitution"). The cases thus couple the individual right with the duty of courts and tether the right to res judicata principles. This explains the usual posture offull faith and credit cases: the issue arises in the context of pending litigation-not as a claim brought against a party failing to afford full faith and credit to a state judgment, but as a basis to challenge the forum court's decision. Such cases begin in state court, and the Supreme Court intervenes only after the state court
3 Thompson u. Thompson, 484 U.S. 174, 182-83, 108 S. Ct. 513, 518 (1988) ("['I1he Clause 'only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting."') (quoting Minnesota u. N. Sec. Co., 194 U.S. 48, 72, 24 S. Ct. 598, 605 (1904)); 16 AM. JUR. 2D Constitutional Law§ 587, at 992 (1964) (same).
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No. 09-30036 denies the validity of a sister state's law or judgment.4 See Allen u. Alleghany
Co., 196 U.S. 458, 464-65, 25 S. Ct. 311, 313 (1905); Johnson u. N.Y. Life Ins.
Co., 187 U.S. 491, 495, 23 S. Ct. 194, 195 (1903) (noting that the litigant could not claim her full faith and credit "right" had been denied "until the trial took place"); Chicago & A.R. Co. u. Wiggins Ferry Co., 108 U.S. 18, 23-24, 1 S. Ct. 614, 616 (1883) (no federal question arises until a state court fails to give full faith and credit to the law of a sister state).5 Consequently, since the duty of affording full faith and credit to a judgment falls on courts, it is incoherent to speak ofvindicating full faith and credit rights against non-judicial state actors.6
Fifth Circuit law confirms this point. See White u. Thomas, 660 F.2d 680, 685 (5th Cir. 1981). In White, this court dismissed a § 1983 claim brought against a Texas sheriff who fired the plaintiff for allegedly lying on his
4 In cases arising under federal diversity jurisdiction, full faith and credit issues may arise because federal district courts are governed by the full faith and credit statute. See Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 56 S. Ct. 229 (1935); Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151 (5th Cir. 1974).
5 See also 16B AM. JUR. 2D Constitutional Law § 1030, at 998-99 (1964) ("In order to create a reviewable federal question under the constitutional provision as to full faith and credit," plaintiff must show that "the validity of the laws of another state is drawn into question by the courts.") (emphasis added).
6 One might argue that this interpretation of the clause is curious given that the Constitution addresses itself to "each state," not to "each state's courts." Not only is this interpretation most consistent with the Supreme Court's long-standing precedent, however, but a contrary interpretation would create a serious anomaly ofits own. The Supreme Court has explicitly held that if a court fails to afford full faith and credit to a judgment, the appropriate path for redress is Supreme Court review. See Thompson, 484 U.S. 174, 108 S. Ct. 513. If§ 1983 provided a remedy for full faith and credit violations by state executive officials, litigants in such actions would have a considerable advantage over litigants who pursue recognition of out-of-state judgments through state courts. Whereas the former would have immediate federal court redress through§ 1983, the latter would depend on Supreme Court review alone.
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No. 09-30036 employment application form by failing to disclose his involvement in a juvenile
crime. Id. at 682. The plaintiff argued that because a California court had
entered an order expunging his juvenile record, Texas state officials were obliged to treat his record as expunged. The court held that the sheriff could not have violated the full faith and credit clause because its function was "to avoid
relitigation of the same issue in courts of another state." Id. at 685. The clause did not "require a Texas sheriff to obey California law." Id. (emphasis added).
In a similar case, the Seventh Circuit denied relief under§ 1983 when a plaintiff sued Illinois state police for failing to give full faith and credit to a New York judgment. Rosin v. Monken, 599 F.3d 574, 576 (7th Cir. 2010). The court reasoned that because the "primary operational effect of the Clause's application" was "for claim and issue preclusion (res judicata) purposes," the clause did not oblige executive officials to execute the judgment in the manner prescribed by the out-of-state judgment itself. Id. (quoting Baker, 522 U.S. at 233, 118 S. Ct. at 664).
That the obligation to afford judgments full faith and credit falls on courts is implicit from the fact that rules of res judicata provide the standard for determining whether a judgment is entitled to full faith and credit in the first place. According to the Court, a judgment is not entitled to full faith and credit unless the second court finds that the questions at issue in the first case "have been fully and fairly litigated and finally decided in the court which rendered the original judgment." Durfee, 375 U.S. at 111, 84 S. Ct. at 245. Further, a judgment issued by a court without jurisdiction over the subject matter, or personal jurisdiction over the relevant parties, is not entitled to full faith and credit. Underwriters Nat'l Assurance Co., 455 U.S. at 705, 102 S. Ct. at 1366
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No. 09-30036 ("[B]efore a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis ofthe foreign court's decree. Ifthat court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given."); W. Union Tel. Co. v. Pennsylvania, 368 U.S. 71, 75, 82 S. Ct. 199, 201 (1961) ("[A] state court judgment need not be given full faith and credit by other States as to parties or property not subject to the jurisdiction of the court that rendered it."). The predicates triggering full faith and credit are determinable only by courts. State executive officials are unsuited and lack a structured process for conducting the legal inquiry necessary to discern whether a judgment is entitled to full faith and credit. Thus, it makes little sense to impose full faith and credit obligations on non-judicial officers who are not equipped for such a task.
Even if a broader individual right exists under the full faith and credit clause, the Court has expressly indicated that the only remedy available for violations of full faith and credit is review by the Supreme Court. See Thompson, 484 U.S. 174, 108 S. Ct. 513. In Thompson, the Court held that the Parental Kidnaping Prevention Act (PKPA)-which imposed a full faith and credit duty on states to enforce child custody determinations entered by sisterstate courts-did not give rise to an implied private cause of action. The Court reasoned that because Congress had explicitly declined to rely on federal courts to enforce full faith and credit rights, the only remedy for full faith and credit violations must lie in Supreme Court review of state court decisions. !d. at 18587, 108 S. Ct. at 519-20.
In making this point, the Court distinguished between enforcement ofthe PKPA by federal courts and a "full faith and credit approach," which simply
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No. 09-30036 imposed a federal duty on states vis-a-vis sister-state decrees. ld. The Court held that the PKPA embodied the latter approach because Congress had expressed no intention ofinvolving federal courts in the enforcement offull faith and credit obligations. Not only did the Court find no implied private remedy in the PKPA, but it found no statutory remedy at all: it is "highly unlikely" that "Congress would follow the pattern of the Full Faith and Credit Clause and section 1738 by structuring [the PKPA] as a command to state courts to give full faith and credit to the child custody decrees of other states, and yet, without comment, depart from the enforcement practice followed under the Clause and section 1738." ld. at 183, 108 S. Ct. at 518 (quoting Thompson v. Thompson, 798 F.2d 1547, 1556 (9th Cir. 1986)).
The Court implicitly acknowledged that without some federal cause of action, state courts could simply refuse to comply with PKPA's requirements. ld. at 187, 108 S. Ct. at 520. Rather than suggesting other statutes-like § 1983--could provide the remedy, the Court responded only that state courts could not completely refuse to enforce the PKPA because final review of state court decisions was available in the Supreme Court. Id. The Court affirmed the historic "presumption" that state courts will "faithfully administer the Full Faith and Credit Clause," id., and "that the courts of the states will do what the constitution and the laws of the United States require," Chicago & A.R. Co., 108 U.S. at 24, 1 S. Ct. at 616. Importantly, resort to federal courts cannot be effected "because of fear that [state courts] will not." ld.
Appellees downplay the significance of Thompson. They suggest that because that case did not involve a state actor refusing to accord full faith and credit to another state's judgment, but was a suit against a private individual,
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No. 09-30036 Thompson should not foreclose resort to § 1983 to remedy full faith and credit violations by state actors. In fact, the actual relief sought by the plaintiff in his suit was for the federal district court to require the "state courts" to comply "with the standards established by [the PKPA]." Thompson, 798 F.2d at 1552 (emphasis added). This procedural posture may have provoked the Supreme Court to explain in great detail that Congress never intended lower federal courts to play any role in the enforcement of full faith and credit obligations. Thompson, 484 U.S. at 183-84, 108 S. Ct. at 518. It seems highly unlikely that the Court, having rejected a federal court full faith and credit remedy under the PKPA, would mint a§ 1983 remedy in other full faith and credit cases. In fact, the Eleventh Circuit recently dismissed a§ 1983 action alleging violations ofthe full faith and credit clause, the PKPA, and the Full Faith and Credit for Child Support Orders Act, citing Thompson for its holding. Stewart v. Lastaiti, No. 1012571, 2010 WL 4244064 (11th Cir. Oct. 28, 2010). Consequently, the only remedy for a state's refusal to discharge its obligations under the clause remains an appeal to the Supreme Court.
Only one federal court decision has permitted a full faith and credit claim to be brought in federal court pursuant to§ 1983. Finstuen v. Crutcher, 496 F.3d 1139 (lOth Cir. 2007). In Finstuen, a couple sued to invalidate an Oklahoma . statute that officially denied recognition to out-of-state adoptions by same-sex couples. The Tenth Circuit not only granted reliefunder§ 1983, but also ordered a new birth certificate to be issued bearing the names of the same-sex parents. 496 F.3d at 1156. The bulk ofthe opinion is devoted to analysis of the allegedly unconstitutional state non-recognition statute, a problem different from the one here. Moreover, the court did not discuss, nor does it appear to have been
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No. 09-30036
argued, that (1) the clause has hitherto been enforced only as to court decisions denying recognition ofout-of-state judgments, and (2) Supreme Court authority, cited below, denies federal question jurisdiction to full faith and credit claims.
Finstuen however, acknowledges the principle that "[e]nforcement measures do not travel with the sister state judgment" for full faith and credit purposes, and it characterizes the birth certificate sought by the plaintiffs as an "enforcement mechanism". See 496 F.3d at 1154. In the end, Finstuen is distinguishable not only because the Registrar here concedes the validity of Infant J's adoption but because Louisiana law, unlike Oklahoma law, does not require issuing birth certificates to two unmarried individuals. The "enforcement measure"-issuance ofa revised birth certificate-is thus critically different in the two states.
2. The Appellees' request for a birth certificate is appropriately brought in state court.
That the clause affords a rule of decision in state courts is reinforced by the cases that hold reliance on the clause alone insufficient to invoke federal question jurisdiction. 13D CHARLESALANWRIGHTETAL., FEDERALPRACTICEAND
PROCEDURE§ 3563, at 214 (3d ed. 2008); Minnesota v. N. Sec. Co., 194 U.S. 48,
72, 24 S. Ct. 598, 605 (1904) ("[T)o invoke the rule which [the Full Faith and Credit Clause] prescribes does not make a case arising under the Constitution or laws ofthe United States."); Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373, 374, 24 S. Ct. 92, 92-93 (1903) (the full faith and credit clause "establishes a rule of evidence rather than ofjurisdiction"); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291-92, 8 S. Ct. 1370, 1375 (1888). Although the full faith and credit clause is part of the Constitution within the meaning of 28 U.S.C. § 1331, "there is no jurisdiction because the relation of the constitutional
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No. 09-30036 provision and the claim is not sufficiently direct that the case 'arises under' the clause." 13D WRIGHT & MILLER§ 3563, at 214. Absent an independent source ofjurisdiction over such claims, federal district courts may not hear such cases. See, e.g., Chicago & A.R. Co., 108 U.S. at 22, 1 S. Ct. at 615.7 Thus, the Fifth Circuit has stated that "a fight over the enforcement of a state court judgment is not automatically entitled to a federal arena." Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151, 153 n.1 (5th Cir. 1974).
To enforce the clause, Appellees might have sought to compel the issuance of a new birth certificate in Louisiana courts,8 for full faith and credit doctrine does not contemplate requiring an executive officer to "execute" a foreign judgment without the intermediary of a state court. Riley v. N.Y. Trust Co.,
7 See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.2.1, at 275 (5th ed. 2007) ("Jurisdiction for claims under the Constitution of the United States has been held to include all constitutional provisions except the full faith and credit clause ofArtice IV,§ 1. ... The full faith and credit clause does not independently justify federal court jurisdiction every time a person seeks to compel a state to respect the judgment of another state's courts."); Lumen N. Mulligan, A Unified Theory of 28 U.S. C.§ 1331 Jurisdiction, 61 VAND. L. REV. 1667, 1706-07 (2008) (jurisdictional dismissal for failing to assert a colorable constitutional claim is appropriate for cases brought under the full faith and credit clause "because the Clause does not create substantive rights but rather provides a rule of decision (i.e., a procedural rule) for state and federal courts"); Joan M. Krauskopf, Remedies for Parental Kidnapping in Federal Court: A Comment Applying the Parental Kidnapping Prevention Act in Support of Judge Edwards, 45 OHIO ST. L.J. 429, 441 n.70 (1984) ("The full faith and credit clause (and presumably statutes enacted to implement it) prescribes a rule by which to determine what faith and credit to give judgments and public acts, and it does not create a basis for federal court jurisdiction.").
8 For example, Louisiana law provides that "[a] writ of mandamus may be issued in all cases where the law provides no relief by ordinary means." LA. CODE CIV. PROC. ANN. art. 3862. In particular, "[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law." Id. art. 3863; see also State ex rel. Neighborhood Action Comm. v. Edwards, 652 So. 2d 698, 699-700 (La. Ct. App. 1995). Were there no state remedy with respect to a full faith and credit violation, the Supreme Court may remand for a state court to supply one. See Broderick v. Rosner, 294 U.S. 629, 55 S. Ct. 589 (1935).
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No. 09-30036 315 U.S. 343, 349, 62 S. Ct. 608, 612 (1942); McElmoyle ex rel. Bailey u. Cohen, 38 U.S. (13 Pet.) 312, 325, 10 L. Ed. 177 (1839) ("[T]he judgment is ... not examinable upon its merits; but it does not carry with it, into another state, the efficacy of a judgment upon property or persons, to be enforced by execution."). The Appellees concede in their brief that "most frequently judgments are enforced through further judicial proceedings, as reflected by the great body of full faith and credit jurisprudence." As the Supreme Court once indicated, to give one state's judgment "the force of a judgment in another state, it must be made a judgment there, and can only be executed in the latter as its laws may permit." Lynde u. Lynde, 181 U.S. 183, 187, 21 S. Ct. 555, 556 (1901) (emphasis added) (quoting McElmoyle, 38 U.S. (13 Pet.) at 325); Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 462-63, 21 L. Ed. 897 (1873) ("No execution can issue upon such judgments without a new suit in the tribunals of other States.")
(quoting J. STORY, CONFLICT OF LAWS§ 609 (7th ed. 1872)); Baker, 522 U.S. at 241, 118 S. Ct. at 668 (Scalia, J., concurring) (same). After Appellees' case has
been submitted to the state courts, the full faith and credit clause may provide the federal question to support Supreme Court review. See Ford u. Ford, 371 U.S. 187, 83 S. Ct. 273 (1962) (reviewing South Carolina Supreme Court decision which rested upon its reading of the full faith and credit clause). This course of action coincides with that described by the Supreme Court in Thompson.
3. Alternatively, full faith and credit does not extend to enforcing the New York adoption decree.
Even if we assume, contrary to all the above-cited cases, that § 1983 provides a remedy against non-judicial actors for violations of the full faith and
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No. 09-30036 credit clause, the Appellees still cannot prevail because the Registrar has not denied recognition to the New York adoption decree.
Supreme Court precedent differentiates the credit owed to laws and the credit owed to judgments. Baker, 522 U.S. at 232, 118 S. Ct. at 663. With regard to judgments, the Court has described the full faith and credit obligation
as "exacting." Id. at 233, 118 S. Ct. at 663. The states' duty to "recognize" sister
state judgments, however, does not compel states to "adopt the practices ofother States regarding the time, manner, and mechanisms for enforcing judgments." ld. at 235, 118 S. Ct. at 665. Rather, enforcement ofjudgments is "subject to the evenhanded control offorum law." ld. "Evenhanded" means only that the state executes a sister state judgment in the same way that it would execute judgments in the forum court.
In this case, the Registrar has not refused to recognize the validity of the New York adoption decree. The Registrar concedes that the parental relationship of Adar and Smith with Infant J cannot be revisited in its courts. That question is not at issue. The Registrar in fact offered to comply with Louisiana law and reissue a birth certificate showing one of the unmarried adults as the adoptive parent. The Registrar acknowledged that even though she would not issue the requested birth certificate with both names, the Registrar recognizes Appellees as the legal parents oftheir adopted child. And the Appellees apparently agree, admitting that birth certificates are merely "identity documents that evidence . .. the existing parent-child relationships, but do not create them." Appellees affirm that "the child at the center of this case" is already "legally adopted-and nothing that happens in this case will change that." In sum, no right created by the New York adoption order (i.e., right to
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No. 09-30036 custody, parental control, etc.) has been frustrated, as nothing in the order entitles Appellees to a particular type of birth certificate.
Appellees nevertheless assert that the full faith and credit clause entitles them to a revised birth certificate with both of their names. The Supreme Court has not expressly ruled on this claim, but the Court has never "require[d] the enforcement of every right which has ripened into a judgment of another state or has been conferred by its statutes." Broderick u. Rosner, 294 U.S. 629, 642, 55 S. Ct. 589, 592 (1935). Importantly, in Estin u. Estin, the Supreme Court held that a divorce decree entered in Nevada effected a change in the couple's marital status in every other state, but the fact "that marital capacity was changed does not mean that every other legal incidence of the marriage was necessarily affected." 334 U.S. 541, 544-45, 68 S. Ct. 1213, 1216 (1948). The Court then enforced a New York alimony decree notwithstanding the Nevada divorce. Forum state law thus determines what incidental property rights flow from a validly recognized judgment. And it has long been recognized that while one state may bind parties with a judicial decree concerning real property in another state, that decree will not suffice to transfer title in the other state. Fall u. Eastin, 215 U.S. 1, 30 S. Ct. 3 (1909).
These principles applied in Hood u. McGehee, where children adopted in Louisiana brought a quiet title action concerning land in Alabama against their adoptive father's natural children. 237 U.S. 611, 35 S. Ct. 718 (1915). But Alabama's inheritance law excluded children adopted in sister states. !d. at 615, 35 S. Ct. at 719. The adopted children argued that the Alabama inheritance ·statute violated the full faith and credit clause. The Supreme Court disagreed, holding that there was "no failure to give full credit to the adoption of the
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No. 09-30036 plaintiffs, in a provision denying them the right to inherit land in another state." !d. Justice Holmes wrote that Alabama "does not deny the effective operation ofthe Louisiana [adoption] proceedings" but only says that "whatever may be the status ofthe plaintiffs, whatever their relation to the deceased ... the law does not devolve his estate upon them." !d.
Just as the Court in Hood did not find full faith and credit denied by Alabama's refusing certain rights to out-of-state adoptions, so here full faith and credit is not denied by Louisiana's circumscribing the kind of birth certificate available to unmarried adoptive parents. "The Full Faith and Credit Clause does not compel 'a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate."' Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S. Ct. 2117, 2122 (1988) (quoting Pac. Emp'rs Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 501, 59 S. Ct. 629, 632 (1939)). Hood recognized that "Alabama is sole mistress of the devolution of Alabama land by descent." Hood, 237 U.S. at 615, 35 S. Ct. at 719. Louisiana can be described as the "sole mistress" of revised birth certificates that are part ofits vital statistics records. Louisiana has every right to channel and direct the rights created by foreign judgments. See, e.g., Watkins v. Conway, 385 U.S. 188, 87 S. Ct. 357 (1966) (holding that Georgia's five-year statute oflimitations for suits on out-of-state judgments does not deny full faith and credit). Obtaining a birth certificate falls in the heartland of enforcement, and therefore outside the full faith and credit obligation of recognition.
The Court continues to maintain a stark distinction between recognition and enforcement of judgments under the full faith and credit clause, as Baker v. General Motors Corp. confirms. 522 U.S. 222, 118 S. Ct. 657 (1998). The
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No. 09-30036 Court held that a Michigan injunction barring a former General Motors employee from testifying against GM could not control proceedings against GM brought in other States. Id. at 238, 118 S. Ct. at 666. That the order was "claim preclusive between [the former employee] and GM" in Michigan did not prevent the employee from testifying if permitted by Missouri courts. ld. at 237-38, 118 S. Ct. at 666. According to the Supreme Court, "Michigan has no authority to shield a witness from another jurisdiction's subpoena power in a case involving persons and causes outside Michigan's governance." ld. at 240, 118 S. Ct. at 667. This is because "the mechanisms for enforcing a judgment do not travel with the judgment itself for purposes of full faith and credit." Id. at 239, 118 S. Ct. at 667.
Similarly, the New York adoption decree cannot compel within Louisiana "an official act within the exclusive province" ofthat state. I d. at 235, 118 S. Ct. at 665. The full faith and credit clause emphatically "did not make the judgments of other States domestic judgments to all intents and purposes." Whitman, 85 U.S. (18 Wall.) at 462-63 (quoting J. STORY, CONFLICT OF LAWS § 609 (7th ed. 1872)). Rather, the adoption decree "can only be executed in [Louisiana] as its laws may permit." Fall, 215 U.S. at 12, 30 S. Ct. at 8 (quoting McElmoyle, 38 U.S. (13 Pet.) at 325).
The Seventh Circuit case of Rosin v. Monken is both instructive and current. 599 F.3d 574 (7th Cir. 2010). In Rosin, a sex offender entered into a plea bargain in New York under which he would not have to register as a sex offender. ld. at 575. The plea bargain was reduced to judgment by a New York state court. When he moved to Illinois, however, he was forced to register as a sex offender. He sued officials in the Illinois state police department under
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No. 09-30036 § 1983, claiming they had failed to give full faith and credit to the New York order by requiring him to register as a sex offender. Id. The district court denied relief, and the Seventh Circuit affirmed. The court reasoned that even if the New York order had explicitly stated that plaintiff need not register in New York or any other state, Illinois's recognition ofthe New York order would not oblige the state to enforce that order in the prescribed manner. Id. at 576. According to the court, "Illinois need not dispense with its preferred mechanism for protecting its citizenry by virtue merely ofa foreign judgment that envisioned less restrictive requirements being imposed on the relevant sex offender." ld. at 577. "The Full Faith and Credit Clause was enacted to preclude the same matters' being relitigated in different states as recalcitrant parties evade unfavorable judgments by moving elsewhere. It was never intended to allow one state to dictate the manner in which another state protects its populace." ld.
Similarly, the full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. Forum state law governs the incidental benefits of a foreign judgment. In this case, Louisiana does not permit any unmarried couples-whether adopting out-ofstate or in-state-to obtain revised birth certificates with both parents' names on them. See LA. REV. STAT. ANN.§ 40:76; LA. CHILD. CODE ANN. arts. 1198, 1221. Since no such right is conferred by either the full faith and credit clause or Louisiana law, the Registrar's refusal to place two names on the certificate can in no way constitute a denial of full faith and credit. As in Rosin where Illinois had the right to force the sex offender to register even ifthe New York judgment provided to the contrary, Louisiana has a right to issue birth certificates in the manner it deems fit. Louisiana is competent to legislate in the area of family
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.: No. 09-30036
relations, and the manner in which it enforces out-of-state adoptions does not deny them full faith and credit.9 II. EQUAL PROTECTION
Appellees' alternative§ 1983 theory contends that denying a revised birth certificate to children of unmarried couples violates the equal protection clause. Without doubt, Appellees have standing to pursue this claim under § 1983. Appellees do not appear to argue that unmarried couples are a suspect class, or that the Louisiana law discriminates based on sex. Their theory appears to be that Louisiana treats a subset of children-adoptive children of unmarried parents-differently from adoptive children with married parents, and this differential treatment does not serve any legitimate governmental interest. This theory is unavailing in the face of the state's rational preference for stable adoptive families, and the state's decision to have its birth certificate requirements flow from its domestic adoption law. To invalidate the latter would cast grave doubt on the former.
Appellees have not explained why adoptive children ofunmarried parents IS a suspect classification. While Appellees rely heavily upon the Levy u. Louisiana10 line of cases to support the inference that heightened scrutiny is nonetheless required here, the classification described in those cases relates to
9 Appellees rely on the broad purposes of§ 1983 to bolster their claim. In Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865 (1991), the Court held that violations of the commerce clause may be redressed by § 1983. Dennis, unlike the instant case, rested on a long line of authorities that conferred an individual "right" of persons engaged in interstate commerce to sue in federal court. Full faith and credit clause jurisprudence has followed an entirely different enforcement path. Further, even if § 1983 provided an arguable remedy, the Appellees' right to recognition oftheir out-of-state adoption decree has not been abridged, only the enforcement in terms of a revised birth certificate.
10 391 U.S. 68, 88 S. Ct. 1509 (1968).
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No. 09-30036 illegitimacy. See, e.g., Pickett v. Brown, 462 U.S. 1, 8, 103 S. Ct. 2199, 2204 (1983); Trimble v. Gordon, 430 U.S. 762, 767, 97 S. Ct. 1459, 1463 (1977). Since Infant J's birth status is irrelevant to the Registrar's decision, these cases cannot support the conclusion that Infant J belongs to a suspect class protected by heightened scrutiny. 11 And, since adoption is not a fundamental right/2 the Louisiana law will be upheld if it is rationally related to a legitimate state interest. Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627 (1996).
Louisiana has "a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." Lofton v. Sec'y ofDep't of Children & Family Servs., 358 F.3d 804, 819 (11th Cir. 2004). Since such an end is legitimate, the only question is the means. In this case, Louisiana may rationally conclude that having parenthood focused on a married couple or single individual-not on the freely severable relationship ofunmarried partners-furthers the interests ofadopted children. In fact, research institution Child Trends released a report underscoring the importance of stable family structures for the well-being of children. 13 In particular, the report noted that marriage, when compared to cohabitation, "is associated with better outcomes
11 Importantly, even if the classification at issue were based on illegitimacy, illegitimacy is not a suspect classification and thus not subject to the Supreme Court's most "exacting scrutiny." Pickett, 462 U.S. at 8, 103 S. Ct. at 2204; Trimble, 430 U.S. at 767, 97 S. Ct. at 1463.
12 See, e.g., Lofton v. Sec'y ofDep't ofChildren & Family Servs., 358 F.3d 804, 811 (11th Cir. 2004); Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir. 1989) (concluding "that there is no fundamental right to adopt"). Nor do Appellees attempt to argue that fundamental rights are implicated in this case.
13 Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, CHILD TRENDS RESEARCH BRIEF, at 6 (2002), available at http://www.childtrends.org/files/MarriageRB602.pdf.
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No. 09-30036 for children," since marriage is more likely to provide the stability necessary for the healthy development of children. 14 This fact alone provides a rational basis for Louisiana's adoption regime and corresponding vital statistics registry. Moreover, since the law here attempts neither to encourage marriage nor to
discourage behavior deemed immoral (unlike laws invalidated by Levy), but rather to ensure stable environments for adopted children, the court has sufficient basis to hold that the Louisiana law does not run afoul of the equal protection clause. Consequently, Appellees' claim fails on the merits.
CONCLUSION For the foregoing reasons, the judgment of the district court is reversed and remanded for entry of judgment of dismissal.
14 Id. at 2. The report explains that "cohabiting unions are generally more fragile than marriage." As a result, such children are more likely to "experience instability in their living arrangements," which "can undermine children's development." ld.
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No. 09-30036 REAVLEY, Circuit Judge, concurring:
I concur in the court's opinion by ChiefJudge Jones but respond briefly to the disappointing dissent. My dissenting colleagues go beyond our due to fault the Louisiana official for her construction of the Louisiana statute. And then they claim the court here conflicts with the Tenth Circuit's decision1 where Oklahoma had prohibited its courts and agencies from any recognition offoreign adoptions by same-sex couples. Whatever the correctness of that opinion may be, it is not the case on appeal where the forum state has not refused to recognize the foreign adoption. As the dissent acknowledges, the only contest here is whether plaintiffs may require the Registrar to put both oftheir names on an amended birth certificate.
But the disturbing theme ofthe dissent is that the "Full Faith and Credit Clause creates a federal right that is actionable against state actors via 42 U.S.C. § 1983." That ignores all of the authority to the contrary as the majority opinion shows. Remember that the Supreme Court said in Thompson v. Thompson, that the "Full Faith and Credit clause, in either its constitutional or statutory incarnations, does not give rise to an implied federal cause ofaction."2 The Court supports that statement by citing Minnesota v. Northern Securities3 and Wright and Miller who wrote that it had long been understood that a judgment in another state does not present federal question jurisdiction simply because the plaintiff alleges that full faith and credit must constitutionally be
1 Finstuen v. Crutcher, 496 F.3d 1139 (10'h Cir. 2009). 2 Thompson v. Thompson, 484 U.S. 174, 182; 108 S. Ct. 513, 518 (1988). 3 Minnesota v. Northern Securities, 194 U.S. 48, 72, 24 S. Ct. 598, 605 (1904).
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J
No. 09-30036 given to the judgment.4 As Justice Scalia said, concurring in Baker v. General Motors, the full faith and credit clause only gives general validity, faith and credit to foreign judgments as evidence.5
The dissent would isolate us from controlling precedent of many years.
4 13D Wright, Miller & Cooper, Federal Practice and Procedure§ 3563, 5 Baker u. General Motors, 522 U.S. 222, 241, ll8 S. Ct. 657, 668 (1998).
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No. 09-30036 LESLIE H. SOUTHWICK, Circuit Judge, specially concurring:
Because of my respect for my colleagues with different views, I open with the observation that we are in untraveled territory. There are divergent understandings being stated by these opinions. The sole purpose of each is to reach the correct destination as charted by the Constitution and the Supreme Court. The charts, though, are not well-marked. It is to be expected that different judges making diligent examinations will discern different courses.
In summary, I conclude that the dissent of Judge Wiener has validly analyzed some of the language in what is perhaps the most relevant decision, Thompson u. Thompson, 484 U.S. 174, 178-79 (1988). Yet still I reach the same conclusion as does the majority as to the overall effect of that decision. I would not decide the other issues resolved in the majority opinion, namely, that the Defendant has in fact recognized the foreign adoption or that there is no violation of Equal Protection.
As to the Full Faith and Credit Clause, the majority has quite properly observed that considering Section 1983 to be a remedy for purported violations ofthis Clause is a new, if not quite brand-new, argument. The validity of the Tenth Circuit's opinion in a related case has been discussed in the other opinions. See Finstuen u. Crutcher, 496 F.3d 1139 (lOth Cir. 2007). The Eleventh Circuit has also spoken. See Stewart u. Lastaiti, No. 10-12571, 2010 WL 4244064 (11th Cir. 2010) (unpublished). It held Section 1983 was not a vehicle for a claim under the Full Faith and Credit Clause, though its holding was stated softly in an unpublished opinion. Id. at *1-2.
The majority relies heavily on Thompson. That opinion certainly held "that the Full Faith and Credit Clause, in either its constitutional or statutory
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No. 09-30036 incarnations, does not giVe rise to an implied federal cause of action." Thompson, 484 U.S. at 182 (citations omitted). That strong statement does not clearly resolve our issue. By referring to a "cause of action," the Court might have been concluding that strictly based on the specific statute there involved and on the Constitution itself, there was not both a personal right and a remedy for a violation. See Larry W. Yackle, Federal Courts 243-44 (3d ed. 2009). The Court did not consider Section 1983. It is not clearly reasonable to conclude that Section 1983 was the unaddressed but ready escape from all the barriers thrown in front of the Thompson plaintiff. Still, I am trying to understand what the Supreme Court must be held to have concluded. The most we know from this language in Thompson is that neither the specific statute involved nor the Full Faith and Credit Clause itself provided both the right and the remedy.
The dissent may also have the better of it by noting that the Supreme Court has referred to the Full Faith and Credit Clause in terms of"rights." See Dissent infra at note 19 (Wiener, J., dissenting). That starts us down the road to considering that all that is needed is a vehicle such as Section 1983 by which to enforce the right.
I cannot continue down that road, and therefore part company with the dissent, because of the language in Thompson that immediately follows the statement about no implied cause of action. The Court gave a clear and quite limited explanation of the reach of the Full Faith and Credit Clause, namely, that it '"only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting."' Thompson,
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No. 09-30036 484 U.S. at 182-83 (quoting Minn. v. N. Sec. Co., 194 U.S. 48, 72 (1904); see 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure§ 3563, at 50 (1984)).
Had this 1904 language not been pulled into Thompson, I might more readily consider that Northern Securities was an anachronism from a day before the rediscovery of Section 1983. Though what is now denominated as Section 1983 was adopted in 1871, it had almost from its inception lay dormant until given life in Monroe v. Pape, 365 U.S. 167, 183 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 663 (1978); See Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability Under Section 1983, 62 S. Cal. L. Rev. 539, 549 (1989).
Another reason to treat the old construction of Full Faith and Credit as outdated would have been the points Judge Wiener makes in his analysis ofwhy the dormant Commerce Clause was found to create individual rights assertable in a Section 1983 action. See Dennis v. Higgins, 498 U.S. 439 (1991). The majority analytically relegates Dennis to a footnote, concluding that the jurisprudential treatment of the dormant Commerce Clause and the Full Faith and Credit Clause are distinguishable, the former but not the latter often being written in terms of "rights." See Majority Opinion supra note 9.
The dissent's good arguments nonetheless fail in light of the adoption of the Northern Securities definition of this Clause in Thompson. Explaining the 1904 language away as a relic of a different era will not do. This is too recent and clear an explanation of the effect of the Full Faith and Credit Clause to be ignored. Nothing suggests the language was limited to the kind of case the Court was considering, namely, a suit between two private parties. The
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No. 09-30036 Supreme Court was explaining the work that the Full Faith and Credit Clause could be made to do - in Thompson and in all other cases.
Having decided that the Full Faith and Credit Clause does not create an individual right on which a Section 1983 suit may be based, I would not address whether the actions of the Louisiana State Registrar constituted a failure to recognize the New York adoption decree. The issue is not necessary to reach, and I would leave it for a case in which it is relevant.
Finally, as to the Equal Protection argument, the usual practice is not to consider an issue until it has first been addressed by the district court. See F.D.I.C. v. Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991). I would follow that practice here.
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No. 09-30036 HAYNES, Circuit Judge, concurring and dissenting:
I concur in the court's judgment reversing and remanding the district court's judgment as to the claim based upon the full faith and credit clause; I further join in the reasoning of Sections I.A and I.B.l and 2 of the majority opinion. However, I would not reach the alternative ground discussed in Section I.B.3 of that opinion. Without addressing the merits (or lack thereof) of the equal protection argument, I respectfully dissent from the decision to reach that question for the reasons stated in the first paragraph of Section II.B of the dissent.

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No. 09-30036 JACQUES L. WIENER, JR., Circuit Judge, with whom FORTUNATO P. BENAVIDES, CARL E. STEWART, JAMES L. DENNIS, and EDWARD C. PRADO, Circuit Judges, join, dissenting:
Convinced that we should affirm the district court by holding that the Full Faith and Credit Clause ("FF&C Clause") creates a federal right that is actionable against state actors via 42 U.S.C. § 1983, I respectfully dissent.
At the very core of the issue that I take with the en bane majority is my rejection out ofhand ofthe linchpin oftheir assertion, i.e., that the FF&C Clause imposes obligations solely on state courts and not on any other state actors. I reject that credo for three main reasons. First, this overly narrow interpretation ofthe FF&C Clause runs contrary to its plain text, which expressly binds "each State," not just "each State's courts." Second, to support its courts-only position, the en bane majority reads a holding into Supreme Court precedent that simply is not there: To date, the Court has not addressed one single FF&C Clause claim brought by a private party against a state actor under § 1983. Faced with that lacuna, the majority instead relies on cases that predate the states' modern practice of affording out-of-state judgment holders non-judicial procedures to register their judgments. Third, the notion that a provision of the Constitution would direct the allocation ofthe states' internal functions defies basic principles of Federalism.
The FF&C Clause literally imposes a duty on "each State" and thereby creates correlative rights for which§ 1983 provides a remedy to private parties against state actors. This conclusion accords with § 1983's broad remedial purpose, which the Supreme Court has repeatedly endorsed and applied expansively. It also comports with the Court's applicable precedent, which squarely holds that a constitutional provision creates a right that is actionable under § 1983 when (1) the provision imposes a mandatory obligation on the

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No. 09-30036 several states, (2) the right is concrete, specific, and judicially cognizable, and (3) the provision was intended to benefit the party bringing the action.1 As I shall do my best to show, all three ofthese prerequisites are present in the instance of the FF&C Clause.
We should also hold that the Defendant-Appellant Darlene Smith, Louisiana's State Registrar and Director of the Office of Vital Records and Statistics (the "Registrar"), violated the rights guaranteed to Plaintiffs-Appellees Oren Adar and Mickey Smith ("Appellees") by the FF&C Clause when she refused to recognize their valid out-of-state adoption decree, which declares them to be "adoptive parents." Only by judicialledgermain, is the en bane majority able to conclude otherwise: it mislabels recognition of an out-of-state judgment, which the FF&C Clause unquestionably requires, as enforcement of such a judgment, the methodologies ofwhich no one disputes should be determined by Louisiana law. Stated differently, it is certainly Louisiana's prerogative to determine the benefits to which out-of-state "adoptive parents" are entitled in Louisiana, but the FF&C Clause nevertheless mandates that (1) Louisiana "recognize" all valid out-of-state status judgments and (2) Louisiana evenhandedly confer to all such judgment-holders those benefits that Louisiana law does establish. Here, Louisiana law declares that every "adoptive parent" is entitled to have his or her name reflected on a corrected birth certificate. Yet, the Registrar un-evenhandedly refuses to issue such a certificate to Appellees for the sole reason that she will not "accept," viz., give full faith and credit to, their unquestionably valid out-of-state judgment. What else could this mean but that
1 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989).
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she refuses to recognize the out-of-state judgment that defines Appellees as "adoptive parents"?
I lament that, m its determination to sweep this high-profile and admittedly controversial case out the federal door (and, presumably, into state court), the en bane majority:
• Strips federal district and appellate courts of subject matter jurisdiction over violations of the FF&C Clause.
• Unduly cabins, ifnot emasculates, Exparte Young and§ 1983 by holding that the federal courts may not enjoin a state's refusal to act in accordance with the mandate of the FF&C Clause.
• Creates a circuit split on the full faith and credit that must be afforded to valid, out-of-state adoption decrees by the adopted child's birth state, as well as the availability of a federal forum for deciding such claims.2
• Dismisses sua sponte the Appellees' very likely winning claims under the Equal Protection Clause without affording the district court, as the court of"first impression," the initial opportunity to hear the evidence, analyze the case, and adjudicate those claims, as historically required by the prudence and practice of this and other appellate courts. I. FACTS & PROCEEDINGS
Inasmuch as the majority opinion does not reiterate the facts ofthis case or point elsewhere to any recitation of the facts, reference may be made to its
2 See Finstuen v. Crutcher, 496 F.3d 1139 (lOth Cir. 2007). See also Rosin v. Monken, 599 F.3d 574, 575 (7th Cir. 2010) (permitting a plaintiff to bring a§ 1983 action asserting a claim under the FF&C Clause).
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No. 09-30036 factual and procedural posture as detailed m the panel opinion.3 I here summarize only the key facts that merit emphasis.
Appellees Adar and Smith are the parents and next friends of the third Plaintiff-Appellee, Infant J CA-S ("Infant J"), a five-year-old boy who was born in Shreveport, Louisiana and surrendered there for adoption. Appellees became Infant J's parents by adopting him in a proper New York court in accordance with the laws ofthat state. That court made the adoption final by issuing a valid order of adoption; neither the Appellant nor the en bane majority questions either the validity or finality ofthat decree. In those proceedings, Appellees also had Infant J's full name changed from the one that appeared on his original Louisiana birth certificate.
In conformity with the Louisiana "Record of Foreign Adoptions" statute, Appellees conveyed a duly authenticated copy ofthe New York order of adoption to the Registrar. Because Infant J was born in Louisiana, the Registrar is the sole custodian of his birth certificate.4 Still following Louisiana's statute, Appellees requested that the Registrar issue Infant J a corrected birth certificate--one that accurately lists them as Infant J's parents and records his true name. Adoptive parents, both in state and out, commonly request an
3 See Adar v. Smith, 597 F.3d 697, 701-02 (5th Cir. 2010). 4 The Registrar remains so even though the family now lives in California and even though the adoption took place in New York. It is beyond me why a state would create the fuss that Louisiana has over this birth certificate when that state has so little, if any, interest in the child or the parents. I note that (1) neither Adar nor Smith was a citizen or resident of Louisiana when they began planning to adopt or when Infant J was born, (2) a final adoption was completed in New York, and (3) neither Adar nor Smith, or InfantJ, lives or plans to live in Louisiana.lt is not as though this were a so-called "evasion" case: Louisiana's law expressly permits out-of-state adoptions by providing for agency adoption and does not prohibit children from being taken out of state to be adopted by persons whom Louisiana would not allow to adopt in state.
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No. 09-30036 updated birth certificate following adoptions,5 and Louisiana law directs the Registrar to perform this service for out-of-state adoptive parents when presented with a valid out-of-state adoption decree.6
In officially rejecting Appellees' request to correct Infant J's birth certificate, the Registrar stated, "We are not able to accept the New York adoption judgment to create a new birth record for J ." She did so on the rationale that Louisiana law allows only single individuals and married couples (1) to adopt (2) in Louisiana, and that this rule should control who may be listed as the parents ofan adopted child on his Louisiana birth certificate, irrespective ofhis state of adoption. This, even though, by its express terms, Louisiana adoption law governs only who may adopt in a Louisiana adoption proceeding; it does not address birth certificates at all. (Ironically, the Registrar eventually offered to settle this case by putting the name of either Adar or Smith, but not both, on a revised birth certificate for Infant J, despite the fact that the New York adoption decree lists both Adar and Smith as Infant J's lawful parents. I have searched the Constitution in vain for a "Half Faith and Credit Clause.")
Appellees sued the Registrar in district court. Their complaint makes two claims, both under§ 1983. The first claim is grounded in the FF&C Clause and asserts that the Registrar's categorical rejection ofout-of-state adoption decrees held by unmarried couples violates that Clause. The second claim is grounded in the Equal Protection Clause and has two facets: (1) the Registrar's refusal
5 Adar and Smith are, after all, the only legal parents Infant J has-not even the Registrar now contests that point. Neither does she contest that a birth certificate is a thing of value. It is often required to do things as varied as enroll in school, request a passport, or obtain a marriage license or a driver's license.
6 Adar, 597 F.3d 713-19.
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No. 09-30036 violates that Clause by impermissibly classifyingAppellees based on their sexual orientation and marital status; and (2) the Registrar's refusal violates that Clause by burdening Infant J with an impermissible legitimacy classification and the state's disapprobation of his parents.
Adar and Smith moved for summary judgment on both claims. The Registrar filed an opposition but did not file any cross-motions for summary judgment. The district court granted Adar and Smith's summary judgment motion based solely on their FF&C Clause claim. Significantly, that court never reached their claims brought under the Equal Protection Clause.
The Registrar appealed, and a panel of this court unanimously affirmed. The Registrar then petitioned for rehearing en bane, which brings us to today.
II. ANALYSIS A. The Full Faith and Credit Clause Claim
To begin with, the en bane majority would trivialize Appellees' claim by mischaracterizing it as a quid pro quo: Appellees are entitled to a Louisiana birth certificate because they obtained a New York adoption decree.7 But this just is not Appellees' claim. Rather, Appellees assert that the Registrar has acted unconstitutionally by refusing to "accept" their New York adoption decree as an out-of-state "final decree of adoption" as that term is employed in Louisiana's birth certificate law (not for purposes of its adoption laws), which nowhere distinguishes on the basis of the marital status of the adoptive parents. The "recognition" that Appellees request is not the act of "issuing a revised birth
7 See En Bane Majority Opinion at 5 ("Infant J was adopted in a court proceeding in New York state, as evidenced by a judicial decree. Appellees contend that [the FF&C Clause] oblige[s] the Registrar to 'recognize' their adoption of Infant J by issuing a revised birth certificate.").
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No. 09-30036 certificate," as the en bane majority misleadingly asserts.8 Instead, Appellees request that the Registrar afford full faith and credit to their valid New York adoption decree by accepting it for purposes of Louisiana's nondiscriminatory birth certificate law-as she does to other out-of-state final decrees of adoption.
The en bane majority ultimately misreads (or mislabels) both the text of the FF&C Clause and Supreme Court precedent in its determination to hold that (1) the FF&C Clause is only "a rule of decision" for state courts,9 and, (2) alternatively, the Registrar "has not denied recognition" to Appellees' New York adoption decree. 10 When read in proper context, however, both assertions are wholly unsupported by the substance of the passages that the majority quotes. I remain convinced that (1) the FF&C Clause does create a federal right; (2) § 1983 does provide the appropriate federal remedy by which such a right may be vindicated against state actors-not just state judicial officers but executive and legislative officers as well; and (3) Appellees have brought a meritorious§ 1983 action against the Registrar for violating their rights under the FF&C Clause.
1. The Full Faith and Credit Clause imposes an obligation on "each State" to afford res judicata effect to judgments of other states. The en bane majority's first misstep is to read words into the FF&C Clause that simply are not there. The FF&C Clause states:
8 Id. 9 Id. at 5, 16. 10 See id. at 18 (emphasis in original).
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No. 09-30036 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. 11 Again, the FF&C Clause says "in each State," not "by the Courts ofeach State." Nowhere in the text of the FF&C Clause does the Constitution say that this Clause only "guides rulings in courts" in its "orchestration ofinter-court comity," as-out of thin air-the en bane majority claims. 12 By its terms, the FF&C Clause addresses itself to the states qua states. When the drafters of the Constitution intended for a particular provision to bind only the courts of the states, they knew how to say so, as the text of the Supremacy Clause makes clear.13 It is a foundational principle ofconstitutional interpretation that clauses of the Constitution that are worded differently are presumed to carry different meanings. 14 The en bane majority ignores this principle when it assigns the "each State" language of the FF&C Clause the same meaning as the "Judges in every State" language of the Supremacy Clause. 15
11 U.S. CONST. art. IV, § 1 (emphases added). 12 En Bane Majority Opinion at 6 (emphasis added). 13 See U.S. CONST. art. §VI, cl. 2 ("This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby ...." (emphasis added)). 14 See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 334 (1816) (Story, J.) ("From this difference of phraseology, perhaps, a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed that the variation in the language could have been accidental. It must have been the result of some determinate reason ...."). See also McCulloch u. Maryland, 17U.S. (4 Wheat) 316,414-15 (1819) (Marshall, C.J.) (concluding that "[i]t is impossible, we think, to compare" the Necessary and Proper Clause's use of the word "necessary" with the Import-Export Clause's use of the phrase "absolutely necessary ... without feeling a conviction, that the convention understood itself to change materially the meaning of the word 'necessary,' by prefixing the word 'absolutely"' (emphasis in original)). 15 Additionally, in the political-question context, it has long been settled that a clause of the Constitution addresses itself to a single branch of government, to the exclusion of all
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Finding absolutely no support for its position in the text of the FF&C Clause, the en bane majority next turns to case law in search of affirmation that the FF&C Clause binds only state courts (and not other state actors). The en bane majority's second misstep, then, is its twisting of Supreme Court precedent-Thompson v. Thompson 16 and its progeny-which holds only that there is no implied cause of action directly under the FF&C Clause. In no way, however, does this precedent persuade that the FF&C Clause does not create a private federal right that can be asserted via § 1983 against all state actors as distinct from private actors. The en bane majority errs, therefore, in cherrypicking passages of Thompson out of context and applying them here, failing all the while to acknowledge Thompson's naturally limited holding as a suit between two private parties, and not, as here, a private party against a state actor.
On a superficial level, Thompson is ambiguous as to whether it holds, on the one hand, that the FF&C Clause, as implemented by the Parental Kidnaping Prevention Act, does not create a federal right; 17 or, on the other hand, that Congress did not intend to create a private remedy to enforce the rights created by the FF&C Clause. 18 But, if we were to read Thompson and its progeny as
others, only when the clause evinces a "textually demonstrable commitment" to that branch. Nixon u. United States, 506 U.S. 524, 228-29 (1993) (citing Powell u. McCormack, 395 U.S. 486, 519 (1969); Baker u. Carr, 369 U.S. 186, 217 (1962)).
16 484 U.S. 174, 187 (1988).
17 See id. at 183 ("Unlike statutes that explicitly confer a right on a specified class of persons, the PKPA is a mandate directed to state courts to respect the custody decrees ofsister States." (citations omitted)).
18 See id. at 179 ('"[T]he legislative history of a statute that does not expressly create or deny a private remedy will typically be equally silent or ambiguous on the question."' (quoting Cannon u. Uniu. ofChicago, 441 U.S. 677, 694 (1979))); id. ("In this case, the essential
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holding that the FF&C Clause does not create a federal right, then Thompson
cannot be reconciled with the cases in which the Supreme Court has heard
appeals from state courts oflast resort on FF&C Clause issues.19 By contrast, if
we read Thompson as holding only that the FF&C Clause does not create a
private remedy, then it can coexist without tension alongside the Supreme
Court's practice of adjudicating FF&C Clause appeals. For that reason,
Thompson is properly read as holding only that there is no private remedy
against private parties for violations of the FF&C Clause. That reading is licit
because in Thompson (as well as in every other case cited by the en bane
majority for the proposition that the FF&C Clause only affords a rule ofdecision
predicate for implication of a private remedy plainly does not exist."); id. at 180 ("[T]he context, language, and legislative history ofthe PKPA all point sharply away from the remedy petitioner urges us to infer."); id. at 187 (stating in conclusion that "we 'will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide."' (quoting California v. Si~rra Club, 451 U.S. 287, 297 (1981))).
19 See, e.g., Manhattan Life Ins. Co. of N.Y. v. Cohen, 234 U.S. 123, 134 (1914) (conceding that the Supreme Court would have jurisdiction to review a case in which "the record [left] no doubt that rights under the full faith and credit clause were essentially involved and were necessarily passed upon"); Rogers v. Alabama, 192 U.S. 226, 230-31 (1904) ("[T]he exercise ofjurisdiction by this court to protect constitutional rights cannot be declined when it is plain that the fair result of a decision is to deny the rights.... [T]here can be no doubt that if full faith and credit were denied to a judgment rendered in another state upon a suggestion ofwant ofjurisdiction, without evidence to warrant the finding, this court would enforce the constitutional requirement." (citation omitted)); German Sav. & Loan Soc'y v. Dormitzer, 192 U.S. 125, 126-27 (1904) (explaining that in a case addressing whether "full faith and credit [had] been given to a decree of divorce," the state supreme court's opinion "deal[t] expressly with the constitutional rights ofthe [private party], and the [private party] seems to have insisted on those rights as soon as the divorce was attacked"); Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 641-45 (1900) (reversing a decision of the Rhode Island Supreme Court on the ground that it denied the plaintiff"a right given by§ 1, article 4, of the Constitution ofthe United States"); Estin v. Estin, 334 U.S. 541, 550 (1948) (Frankfurter, J., dissenting) (noting the existence of "a federal right, given by the Full Faith and Credit Clause").
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No. 09-30036 in state courts20), the defendant was a private citizen, not a state official!21 This is the reason-the only reason-why the default federal remedies that are available in actions against state officials, i.e., the doctrine of Ex Parte Young and 42 U.S.C. § 1983, were not available against the private actors in Thompson and its progeny.
Properly understood then, Thompson does not control the instant case. The reason there was no remedy to enforce the FF&C Clause in Thompson is that there is no implied cause of action for violations of the FF&C Clause by private parties. Here, however, when Appellees are suing a state actor, they have no need for an implied cause of action: Section 1983 expressly provides them with the only remedy they seek and the only one they need. At bottom, the Thompson holding has no bearing on either of the questions that are dispositive of this appeal, to wit: (1) May a state delegate to a non-judicial actor the obligation of giving full faith and credit to out-of-state judgments? and (2) if it may and does so, what remedies are available to a judgment holder if that non-judicial state actor fails or refuses to carry out that constitutional obligation?
It is true that FF&C Clause claims have traditionally arisen in state-court litigation, but only because bringing suit on an out-of-state judgment was historically the only method of enforcing an out-of-state judgment22 (and
20 See En Bane Majority Opinion at 16. 21 See, e.g., Thompson, 484 U.S. at 178 (suit by an ex-husband against an ex-wife); Minnesota v. N. Securities Co., 194 U.S. 48, 71-72 (1904) (suit by a state against a foreign corporation); Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373, 374 (1903) (suit by one corporation against another corporation); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 286 (1888) (suit by a state against a foreign corporation). 22 See Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir. 1992) ("[U]nder the common law, the procedure to enforce the judgment of one jurisdiction in another required the filing
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therefore only state judges were in a position to deny recognition to a judgment, i.e., violate the FF&C Clause). An accident of history is not a constitutional necessity, however. In fact, to date, all but two or three ofthe fifty states have enacted some version ofthe Revised Uniform EnforcementofForeign Judgments Act, which authorizes non-judicial officers to register out-of-state judgments, thereby entrusting to them their states' obligations under the FF&C Clause.23 For example, the Louisiana Constitution mandates that "[i]n each parish a clerk of the district court ... shall be ex officio notary public and parish recorder of conveyances, mortgages, and other acts ...."24 Thus, a parish clerk of court-a non-judicial administrative official-routinely records out-of-state money judgments in Louisiana's public records just as he records deeds, mortgages, etc.-parallel to the Registrar's nondiscretionary duties with regard to out-ofstate status decrees-and he does so, or fails to do so, wearing his public-records hat and not his court-functionary hat, without any intervention by a state court oflaw and without a state judge's application ofthe FF&C Clause's alleged "rule of decision." In this way, the en bane majority's insistence that the states must
of a new suit in the second jurisdiction to enforce the judgment of the first. The suit on the judgment was an independent action." (citation omitted)). See also Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268, 271 (1935) (explaining that "suits upon a judgment, foreign or domestic, for a civil liability, ... were maintainable at common law upon writ of debt, or of indebitatus assumpsit.").
23 The Act, promulgated in 1964 by the National Conference of Commissioners on Uniform State Laws, allows an out-of-state judgment holder to file an authenticated copy of an out-of-state judgment with the clerk of an in-state court and provides that "[a] judgment so filed has the same effect ... as a judgment of a [court] of [the forum] state and may be enforced or satisfied in a like manner." REVISED UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT § 2 (1964).
24 LA. CONST. art. V, § 28 (emphasis added).
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No. 09-30036 use only their courts to satisfy their duties under the FF&C Clause is not only unsupported by Supreme Court precedent; it also draws into question the constitutionality of the judgment-registration statutes ofthose states and even the Louisiana Constitution.
Lastly, the en bane majority fails to address the fact that its construction of the FF&C Clause-that it applies only to state courts and thus only state courts must recognize out-of-state judgments-is inconsistent with the Constitution's system of dual sovereignty. The framers of the Constitution expressly refrained from dictating to the states how to organize themselves internally. It is "[t]hrough the structure ofits government" that "a State defines itself as a sovereign."25 This is why there is no provision anywhere in the Constitution that removes from the states the discretion to discharge the obligations that the Constitution imposes on them however they see fit.26 This constitutionally mandated solicitude toward the states' prerogative to arrange their own affairs is the reason that we have the clear-statement rule ofstatutory construction.27 By declaring that the FF&C Clause requires the states to use only their courts, and not also their non-judicial officials, to fulfill their full-faith-
25 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). 26 The closest the Constitution comes is in the Republican Form ofGovernment Clause, see U.S. CONST. art. IV,§ 4, and it has long been the law that the question of what that clause requires is a political one for Congress, not a judicial one for the courts. See generally Luther v. Borden, 48 U.S. (7 How.) 1 (1849). 27 See Gregory, 501 U.S. at 460 ("If Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." (citations, internal quotation marks, and alterations omitted)).
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No. 09-30036 and-credit obligations, the en bane majority erodes the dual federal/state sovereignty that has long been the hallmark of American Federalism.
2. The Appellees' request for a corrected birth certificate was appropriately made to the Registrar, and their complaint against the Registrar for her unconstitutional refusal to recognize their parental status was appropriately brought in federal court via § 1983. The en bane majority fails to appreciate or acknowledge the role-indeed, the raison d'etre--of § 1983 in providing a private remedy against state actors. This failure is exemplified in the majority's persistent reliance on the Supreme Court's pronouncements regarding the FF&C Clause outside of the § 1983 context. The majority asserts that "the Court has expressly indicated that the only remedy available for violations of full faith and credit is review by the Supreme Court."28 Yet again, in a precedential non sequitur, the majority relies exclusively on Thompson u. Thompson for this proposition. Exacerbating its misapplication of this Supreme Court precedent is the majority's failure to heed the Court's direction to apply§ 1983 expansively. The Supreme Court has repeatedly pronounced that § 1983 is a remedial statute which is intended "to be broadly construed, against all forms ofofficial violation of federally protected rights."29 With this maxim firmly entrenched, the Court has willfully extended the aegis of § 1983 enforcement to non-Fourteenth Amendment rights, such as, for example, those guaranteed by the dormant Commerce Clause.
28 En Bane Majority Opinion at 13 (citing Thompson, 484 U.S. 174). 29 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 700-01 (1978). See also Golden State, 493 U.S. at 105-06 ("We have repeatedly held that the coverage of[§ 1983] must be broadly construed." (citations omitted)).
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No. 09-30036 It is well settled indeed that, even though "[a] vast number of § 1983 actions involve violation of constitutional rights in individual circumstances,"30 actions brought via§ 1983 may assert violations ofnon-individual constitutional rights. Dennis v. Higgins31 is a prime example. There, a motor carrier filed a § 1983 cause of action against Nebraska state officials for violating the Commerce Clause by imposing "retaliatory" taxes and fees on motor carriers that operated in Nebraska but used vehicles registered in other states.32 The Nebraska Supreme Court had ruled that "claims under the Commerce Clause are not cognizable under § 1983 because, among other things, the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments."33 The Supreme Court nevertheless directed that "[a] broad construction of§ 1983 is compelled by the statutory language .... The legislative history ofthe section also stresses that as a remedial statute, it should be liberally and beneficently construed."34 "Even more relevant to [that] case," the Court noted, it had consistently"rejected
30 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, RICHARD D. FREER, JOAN E. STEINMAN, CATHERINE T. STRlNE, VIKRAM DAVID AMAR, FEDERAL PRACTICE AND PROCEDURE§ 3531.6 (3d ed. 2010).
31 498 u.s. 439 (1991).
32 See id. at 441 ("In his complaint, petitioner complained, inter alia, that the taxes and fees constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U.S.C. § 1983.").
33 !d. at 442 (internal quotation marks omitted). 34 !d. at 443 (internal footnote and quotation marks omitted).
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attempts to limit the types ofconstitutional rights that are encompassed within the phrase 'rights, privileges, or immunities."'35
In Dennis, the Court reviewed the two-step inquiry that it had laid out in Golden State Transit Corporation v. Los Angeles for determining whether§ 1983 provides a remedy for violations of a particular provision of federal law: first, requiring the plaintiff to "assert the violation of a federal right" and second, requiring the defendant to "show Congress specifically foreclosed a remedy under § 1983."36 The Court had identified three factors that initially help determine whether a statutory or constitutional provision creates a federal right: whether the provision (1) "creates obligations binding on the governmental unit," (2) that are sufficiently specific and concrete to be judicially enforced, and (3) were "intended to benefit the putative plaintiff."37 The Dennis Court concluded that the Commerce Clause did indeed create a federal right:
Although the language of [the Commerce Clause] speaks only of Congress' power over commerce, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade. Respondents argue, as the court below held, that the Commerce Clause merely allocates power between the Federal and State Governments and does not confer "rights." There is no doubt that the Commerce Clause is a power-allocating provision, giving Congress pre-emptive authority over the regulation of interstate commerce. It is also clear, however, that the Commerce Clause does more than confer power on the Federal Government; it
35 Id. at 445.
36 493 U.S. at 106 (quotation marks and citations omitted). Because the Registrar has not shown, or even argued, that there is a comprehensive enforcement scheme for preventing state interference with the right created by the FF&C Clause that would foreclose the§ 1983 remedy, the only issue is whether the FF&C Clause creates a federal right. See id. at 108-09.
37 Id. (quotation marks, alterations, and citations omitted).
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No. 09-30036 is also a substantive restriction on permissible state regulation of interstate commerce. The Commerce Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce.38 The Dennis defendants had conceded that the first two Golden State factors favored the plaintiffs but argued that "the Commerce Clause does not confer rights within the meaning of§ 1983 because it was not designed to benefit individuals, but rather was designed to promote national economic and political union."39 The Court disagreed, explaining that the individual plaintiffs were "within the 'zone ofinterests' protected by the Commerce Clause."40 Additionally, the regulation of the states in this instance was for the plaintiffs' benefitY In like manner, the FF&C Clause expressly limits the power of states to deny full faith and credit to the judgments of other states. All three of the Golden State factors favor the conclusion that the FF&C Clause creates a right that is actionable under § 1983: the FF&C Clause unambiguously imposes a mandatory, binding obligation on the several states and thus on their actors;42 the right to have an out-of-state judgment recognized is concrete, specific, and
38 498 U.S. at 446-47 (internal quotation marks and citations omitted and emphases added).
39 Id. at 449. 4o Id. 41 See id. 42 See, e.g., Estin, 334 U.S. at 545-46 ("The Full Faith and Credit Clause ... substituted a command for the earlier principles of comity ... and ordered submission by one State even to hostile policies reflected in the judgment of another State ....").
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No. 09-30036 judicially cognizable;43 and the FF&C Clause was intended to benefit individual holders of out-of-state judgments.44
Justice Kennedy, in his Dennis dissent, disagreed with the majority because he saw a "distin[ction] between those constitutional provisions which secure the rights of persons vis-a-vis the States, and those provisions which allocate power between the Federal and State Governments."4; He concluded that "[t]he former secure rights within the meaning of§ 1983, but the latter do not."46 Thus, Justice Kennedy distinguished all "supposed right[s]" secured by Article I of the Constitution as falling outside the scope of§ 1983, which was consistent with the Court's previous holding in Carter v. Greenhow, 47 prohibiting
43 See, e.g., Underwriters Nat'l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 693-94 (1982).
44 See Thomas v. Wa. Gas Light Co., 448 U.S. 261, 278 n.23 (1980) ("[T]he purpose of [the FF&C Clause] was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states ...." (quoting Pac. Emp'rs Ins. Co. v. v. Indus. Accident Comm 'n of Cal., 306 U.S. 493, 501 (1939))); Magnolia Petroleum Co. u. Hunt, 320 U.S. 430, 439 (1943) (explaining that the "clear purpose of the full faith and credit clause" was to ensure that "rights judicially established in any part [of the nation] are given nation-wide application"). It is axiomatic that a judgment establishes rights that benefit the judgment holder. See, e.g., Hanson u. Denckla, 357 U.S. 235, 246 n.12 (1958).
45 Dennis, 498 U.S. at 452-53 (Kennedy, J., dissenting). See also Golden Transit, 493 U.S. at 116 (Kennedy, J., dissenting) ("[Section 1983] thus distinguishes secured, rights, privileges, and immunities from those interests merely resulting from the allocation ofpower between the State and Federal Governments.").
46 Dennis, 498 U.S. at 453 (Kennedy, J., dissenting). 47 114 U.S. 317 (1885).
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a § 1983 action for a Contracts Clause claim.48 In Carter, the Court had explained:
[The Contracts Clause] forbids the passage by the states of laws such as are described. If any such are nevertheless passed by the legislature of a state, they are unconstitutional, null, and void. In any judicial proceeding necessary to vindicate his rights under a contract affected by such legislation, the individual has a right to have a judicial determination declaring the nullity ofthe attempt to impair its obligation. This is the only right secured to him by that clause ofthe constitution.49 Justice Kennedy insisted that this construction ofthe Contracts Clause applied equally, if not more so, to the Commerce Clause: At least such language [ofthe Contracts Clause] would provide some support for an argument that the Contracts Clause prohibits States from doing what is inconsistent with civil liberty. If the Contracts Clause, an express limitation upon States' ability to impair the contractual rights of citizens, does not secure rights within the meaning of § 1983, it assuredly demands a great leap for the majority to conclude that the Commerce Clause secures the rights of persons.50
When applied, not to the Commerce Clause, but to the FF&C Clause, both Justice Kennedy's concerns and the Court's earlier holding in Carter are easily reconcilable with the Dennis majority's holding. For openers, the FF&C Clause-:-anArticle IV provision outlining the states' obligations, not an Article I power-allocating provision-plainly does secure the rights of persons, i.e., individual judgment-holders, against the several states. Just as plainly, the
48 See Dennis, 498 U.S. at 457-58 (Kennedy, J., dissenting).
49 114 U.S. at 322.
50 Dennis, 498 U.S. at 458 (Kennedy, J., dissenting).
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No. 09-30036 FF&C Clause does not deal with the allocation of power between the state and federal governments. Thus, Justice Kennedy's exception of provisions that allocate power does not encompass the FF&C Clause, which affirms the fiJ?.ality of judgments obtained by individuals in one state vis-a-vis every other state. Moreover, whereas the Contracts Clause is a restriction on a state's authority to pass laws that collaterally impede citizens' ability to contract, the FF&C Clause is a restriction on state action that directly undermines any individual's state judgment.
Unlike the Commerce Clause then, the FF&C Clause does embody the right of an individual against a state, not the right of the states against the federal government. And, unlike the Contracts Clause, the FF&C Clause has a direct effect on individual citizens, i.e., as a result of its general restriction on state legislation, does more than collaterally affect individuals. Finally, as alluded to by Justice Kennedy, the FF&C Clause-even more so than the Commerce Clause or the Contracts Clause-prohibits states from doing that which is "inconsistent with civil liberty"51-here, the Registrar's refusal to recognize the New York decree's establishment of Appellees' rightful status as the legal parents of Infant J.
For all the same reasons advanced by the Dennis Court in recognizing the private federal right created by the Commerce Clause-including the issues raised by Justice Kennedy in his dissent-the FF&C Clause indisputably does confer a constitutional "right" for which§ 1983 provides an appropriate remedy. Respectfully, the en bane majority errs absolutely in concluding otherwise.
51 Id.
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3. The Full Faith and Credit Clause does not extend to enforcing the New York adoption decree under New York's enforcement regime but does extend to accepting the out-ofstate decree as a valid decree under Louisiana's enforcement regime The Supreme Court has defined the right secured by the FF&C Clause as one of"recognition"-not ''enforcement"-makingthree distinct pronouncements: (1) "[a] final judgment in one State ... qualifies for recognition throughout the land" and thereby "gains nationwide force"; 52 (2) although "[e]nforcement measures do not travel with the sister state judgment as preclusive effects do[,] such measures remain subject to the even-handed control of forum law";53 and (3) although "[a] court may be guided by the forum State's 'public policy' in determining the law applicable to a controversy," there is "no roving 'public policy exception'to the full faith and credit due judgments."54 For the instant case, this means: (1) Louisiana must recognize the New York adoption decree, i.e., Louisiana must accept Appellees' legal "adoptive parent" status that was lawfully established by the New York decree; (2) Louisiana is not required to apply New York's birth certificate law or afford Appellees any rights granted to "adoptive parents" by New York law, but
52 Baker, 522 U.S. at 233 (citations omitted and emphasis added). 53 Id. at 235 (citation omitted and emphasis added). 54 Id. (citations omitted and emphasis added). Interestingly enough, the Registrar formally rejected Appellees' application for a revised birth certificate based on an advisory opinion from the Louisiana Attorney General that incorrectly concluded: "Louisiana is not required to accept such an out-of-state judgment under the Full Faith and Credit Clause ofthe United States Constitution if it violates public policy." Finding no supporting legal authority for that statement, I can only conclude that the Attorney General pulled it out ofpolitical thin au.
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No. 09-30036 Louisiana must maintain "evenhanded control" of its own birth certificate law; and (3) Louisiana may look to its public policy to determine whether its Vital Statistics Laws apply to this controversy, but it may not refuse to give the New York adoption decree full faith and credit because of policy concerns (especially not those articulated by its adoption laws, which are wholly irrelevant to this New York adoption and to Louisiana's birth certificate law).
The en bane majority skims over these nuances of the Supreme Court's application of the FF&C Clause. Even worse, it mistakenly converts the notion of "recognition" into one of "enforcement," so as to conclude that "[o]btaining a birth certificate falls in the heartland of enforcement, and therefore outside the full faith and credit obligation of recognition."55 But, the Supreme Court has only excluded from FF&C Clause protection the enforcement of the rendering state's laws-which are not at issue here. What it has maintained, however, is that the forum state does have an obligation to apply its own enforcement measures evenhandedly to all out-of-state judgments. If a forum state refuses to apply its enforcement measures to only some out-of-state judgments, i.e., does not maintain evenhanded control of forum law, it is essentially refusing to recognize the force of those disfavored out-of-state judgments in the forum state. And that is precisely what the Registrar has done here. She has refused to recognize Appellees' nationwide, lawful status as "adoptive parents" by denying them the "adoptive parent" rights created in Louisiana's birth certificate (not adoption) statute.
Thus, much like the arguments made by Oklahoma in Finstuen u. Crutcher, the en bane majority's conclusion "improperly conflates [Louisiana]'s
55 En Bane Majority Opinion at 21.
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No. 09-30036 obligation to give full faith and credit to a sister state's judgment with its authority to apply its own state laws in deciding what state-specific rights and responsibilities flow from that judgment."56 Louisiana's birth certificate statute is surely one that decides which Louisiana-specific rights flow from an out-ofstate adoption decree: No one challenges either that statute or Louisiana's prerogative to determine whether "adoptive parents" are entitled to a revised birth certificate. Yet the Registrar has still failed to meet her obligation to afford full faith and credit to Appellees' out-of-state adoption decree by refusing to recognize it and to issue revised birth certificates to "adoptive parents" evenhandedly.
The en bane majority's reliance on the Supreme Court century-old case of Hood v. McGehee57 aptly illustrates its error in confusing "recognition" with "enforcement.'' In Hood, a man who had adopted children in Louisiana subsequently bought land in Alabama. When he died, his adopted children brought a quiet-title action, asserting their rights to the Alabama land. Under Louisiana law, the adopted children would have had inheritance rights to the land because the Louisiana adoption decree vested the adopted children with the same inheritance rights as those of biological children. But, under Alabama inheritance law at that time, no children adopted in other states could inherit land in Alabama from their adoptive parents. The Supreme Court ultimately held that the Alabama inheritance law did not violate the FF&C Clause.58
56 496 F.3d at 1153 (emphasis added). 57 237 U.S. 611 (1915). 58 See id. at 615.
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No. 09-30036 That said, the only proper Hood analogy to the instant case would be if New York law would allow all adoptive parents to obtain revised birth certificates but Louisiana law would not. In this hypothetical example, Appellees would not be entitled to a revised Louisiana birth certificate simply because of the New York law; neither would they be entitled to claim that the Louisiana law violated the FF&C Clause. But, that is far removed from the case that is before us today. Here, the Registrar is not refusing to apply New York's birth certificate law; she is refusing to "accept" the New York adoption decree and recognize the corresponding status determination for purposes of Louisiana's birth certificate law. The problem here is not that Louisiana, like Alabama in Hood, is "refusing certain rights to out-of-state adoptions," as the en bane majority asserts.59 The real problem is that Louisiana is refusing rights created by its own law, but only to a subset of valid out-of-state adoptions. In favoring some out-of-state adoptions over others, the Registrar is refusing to give full faith and credit to all ofthem, i.e., she is not enforcing Louisiana law in an evenhanded manner, which she is constitutionally required to do. The Registrar's actions are thus patently distinguishable from those ofAlabama in Hood, and-for the same reasons that Alabama's law did not violate the FF&C Clause-the Registrar's action~ ineluctably do. The en bane majority also improvidently relies on Rosin v. Monken, a Seventh Circuit case that the majority mislabels "instructive."60 Rosin does not support the majority's position, however. To the contrary, it exemplifies exactly
59 En Bane Majority Opinion at 20·21. 60 Id. at 22.
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No. 09-30036 how the FF&C Clause functions to give nationwide recognition to one state's
status determination. In Rosin, the plaintiff was convicted as a sex offender in
New York, thereby lawfully obtaining "sex offender" status; but he was not required to register in New York's sex offender registry because his plea agreement specified that the New York registration requirement be deleted from his plea form. When the defendant moved to Illinois, however, that state did require him, as a person with "sex offender" status, to record his status in Illinois's sex offender registry. 61 The Seventh Circuit held that the absence of a registration requirement in the New York plea deal need not be given full faith and credit in Illinois because "[the defendant) could not bargain for a promise from New York as to what other states would do based on his guilty plea to sexual abuse in the third degree."62 Nevertheless, the defendant's New York "guilty plea to sexual abuse" did universally define him as a "sex offender," which was a legal status that did transfer into Illinois pursuant to the FF&C Clause for purposes of Illinois's "enforcement" laws that dictate the obligations of "sex offenders" living in Illinois.63
Likewise here, when Adar and Smith legally adopted Louisiana-born Infant J in New York, each gained the status of"adoptive parent" for purposes of the laws of every other state, including Louisiana. Consequently, when Appellees, as the lawful "adoptive parents" of Infant J, duly requested a birth
61 See Rosin, 599 F.3d at 575. 62 Id. at 577. 63 Interestingly enough, in this "instructive" case, the plaintiff brought a FF&C Clause claim-under§ 1983--against the Illinois officials whom he alleged had failed to recognize the New York plea deal by forcing him to register in Illinois. And, federal jurisdiction thus obtained was never questioned. See id. at 575.
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No. 09-30036 certificate pursuant to the cognizant Louisiana statute, the Registrar violated the FF&C Clause by refusing to accept their request. This despite the fact that-under that specific Louisiana statute-all "adoptive parents" are entitled to have their names registered on their Louisiana-born child's birth certificate. By refusing to treat both Adar and Smith as lawful "adoptive parents" under Louisiana's birth certificate law, the Registrar failed to recognize Appellees' status as defined by the New York judgment.
The only difference between Rosin and the instant case lies in the fact that the Illinois officials wanted to accept the New York "sex offender" status of the defendant and record it in accordance with Illinois law; but, for public policy reasons, the Louisiana Registrar does not want to accept the New York "adoptive parent" status of both Appellees and to record it in compliance with Louisiana law. That small difference does not, however, legally distinguish these two cases, especially given that there is no roving public policy exception to the full faith and credit that is owed to out-of-state judgments. The legal issue is the same in each case: Both involve the forum state's recognition of another state's status determination, which the Supreme Court has long identified as a type of judgment that is entitled to full faith and credit.64
Neither the Appellees nor I have ever claimed that, alone and in a vacuum, the FF&C Clause gives them the right to have their names appear on Infant J's birth certificate. But, Louisiana has elected to enact a "Record of Foreign
64 See, e.g., Williams v. North Carolina, 325 U.S. 226, 230 (1945) ("Since divorce, like marriage, creates a new status, every consideration ofpolicy makes it desirable that the effect should be the same wherever the question arises."); Williams v. North Carolina, 317 U.S. 287, 301 (1942) (rejecting the contention that "decrees affecting the marital status of its domiciliaries are not entitled to full faith and credit in sister states").
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Adoptions" statute that specifically addresses recording the status ofout-of-state adoptive parents of Louisiana-born children. Louisiana's statute states:
When a person [1] born in Louisiana [2] is adopted in a. court of
proper jurisdiction [3] in any other state or territory of the United States, the [Louisiana] state registrar may create a new record of birth in the archives [4) upon presentation of a properly certified copy of the final decree of adoption .... Upon receipt of the certified
copy of the decree, the state registrar shall make a new record in its archives, showing: ... The names of the adoptive parents and any
other data about them that is available and adds to the completeness ofthe certificate of the adopted child.65
This specialized statute unequivocally directs66 the Registrar to record all validly
certified out-of-state adoption decrees by, inter alia, inscribing the names of all "adoptive parents" on revised birth certificates. And the FF&C Clause unquestionably requires the Registrar to recognize all out-of-state adoptions. And this is precisely what she has refused to do. When carefully and objectively examined, the Registrar's actual policy is to issue new birth certificates containing the names of every adoptive parent for some out-of-state adoptions but not for others-specifically, not for adoptions by two unmarried parents like Appellees. As such, the Registrar's pick-and-choose recognition policy violates the FF&C Clause.
65 LA. REV. STAT. ANN. § 40:76 (emphases added).
66 The Registrar has argued, and the en bane majority has agreed, that§ 40:76(A)'s initial use of permissive language stating that she "may create a new record" means that she enjoys absolute discretion in issuing or denying birth certificates for out-of-state adoptions. The panel opinion rejected this argument as unpersuasive and unreasonable in light of Louisiana law and held that the correct interpretation of§ 40:76(A) is that its use of "may'' affords the Registrar the limited discretion ofdetermining whether the certification furnished by the applicants is satisfactory. For a more extended discussion on why the Registrar and the en bane majority is mistaken, see Adar, 597 F.3d at 715-18.
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The en bane majority is simply offtarget in characterizing the Registrar's action as "declin[ing] [] to enforce the New York decree by altering Infant J's birth records in a way that is inconsistent with Louisiana law governing reissuance."67 I repeat, Louisiana is declining to recognize the New York decree for purposes of its own law! Louisiana law commands that the names of every-repeat, every-out-of-state adoptive parent "shall" appear on the adopted child's reissued Louisiana birth certificate. The sole prerequisite is the presentation to the Registrar of a certified copy of the out-of-state adoption decree. In no way, then, would reissuing a revised birth certificate to Appellees be "inconsistent" with this law. On the contrary, it would be entirely consistent with it.68
I must also disagree with the en bane majority's contention that the Registrar's offer to reissue the birth certificate, but only with the name ofeither Adar or Smith, both "compl[ies) with Louisiana law" and "recognizes Appellees as the legal parents of their adopted child."69 These assertions are puzzling to say the least: They patently ignore the constitutional truism that the Appellees' adoption decree is entitled to full faith and credit, not to half faith and credit-not to mention the fact that the "Louisiana law" at issue, as explained above, is nondiscriminatory and nondiscretionary on its face. Ifanything, the en
67 En Bane Majority Opinion at 5 (emphasis added).
68 Reissuing a revised birth certificate to Appellees would also be consistent with the wholly separate Louisiana statute for in-state adoptions of Louisiana-born children. Although Louisiana law places restrictions on who may adopt in Louisiana in the first place, once a child is legally adopted there, Louisiana commands that the name of every legal adoptive parent "shall be recorded" on the child's birth certificate. See LA. REV. STAT. ANN. § 40:79(A)(2) (emphasis added).
69 En Bane Majority Opinion at 19.
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The en bane majority is simply offtarget in characterizing the Registrar's action as "declin[ing] [] to enforce the New York decree by altering Infant J's birth records in a way that is inconsistent with Louisiana law governing reissuance."67 I repeat, Louisiana is declining to recognize the New York decree for purposes of its own law! Louisiana law commands that the names of every-repeat, every-out-of-state adoptive parent "shall" appear on the adopted child's reissued Louisiana birth certificate. The sole prerequisite is the presentation to the Registrar of a certified copy of the out-of-state adoption decree. In no way, then, would reissuing a revised birth certificate to Appellees be "inconsistent" with this law. On the contrary, it would be entirely consistent with it.68
I must also disagree with the en bane majority's contention that the Registrar's offer to reissue the birth certificate, but only with the name ofeither Adar or Smith, both "compl[ies] with Louisiana law" and "recognizes Appellees as the legal parents of their adopted child."69 These assertions are puzzling to say the least: They patently ignore the constitutional truism that the Appellees' adoption decree is entitled to full faith and credit, not to half faith and credit-not to mention the fact that the "Louisiana law" at issue, as explained above, is nondiscriminatory and nondiscretionary on its face. Ifanything, the en
67 En Bane Majority Opinion at 5 (emphasis added).
68 Reissuing a revised birth certificate to Appellees would also be consistent with the wholly separate Louisiana statute for in-state adoptions of Louisiana-born children. Although Louisiana law places restrictions on who may adopt in Louisiana in the first place, once a child is legally adopted there, Louisiana commands that the name of every legal adoptive parent "shall be recorded'' on the child's birth certificate. See LA. REV. STAT. ANN. § 40:79(A)(2) (emphasis added).
69 En Bane Majority Opinion at 19.
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bane majority's ascribing "recognition" to the Registrar's Solomonesque offer to Infant J's adoptive parents to decide between themselves which one she should list on the certificate judicially blesses a quintessential Catch-22 choice. It further underscores the Registrar's un-evenhandedness in refusing to give official recognition to both parents' legal status and in refusing to accept both of
them as the legal adoptive parents of Infant J for purposes of Louisiana's own birth certificate (not adoption) law.70 This flies in the face of that unambiguous
statute which explicitly governs out-of-state adoptions of Louisiana-born children and just as explicitly mandates the listing ofevery adoptive parents on presentation ofthe proper documentation. And it does so without any restriction, reservation, or discretionary exception whatsoever.
Importantly, Appellees are not asking Louisiana to change its law; neither are they requesting an order commanding the Registrar to apply Louisiana law to them. 71 Appellees challenge only the constitutionality ofthe Registrar's policy
7°Furthermore, although not raised by Appellees, ifthe Registrar were to issue a birth
certificate with the name of only one parent on it, she would violate the other parent's Due Process rights by unlawfully terminating his interest in parental rights. See In reAdoption of B.G.S., 556 So. 2d 545, 548-50 (La. 1990) (explaining that the ability of a mother of an
illegitimate child to refuse to place the father's name of the birth certificate amounts to "the power to deprive the unwed father of his natural parental right to custody").
71 Appellees presumably could have brought a mandamus action in state court for an order commanding the Registrar to issue a revised birth certificate under Louisiana law (an action that, under Pennhurst State School and Hospital v. Holderman, 465 U.S. 89 (1984), no federal court could entertain). But Appellees never took that course of action. Instead, they brought their action against the Registrar in federal court, via § 1983, to redress her violation of the FF&C Clause, i.e., her refusal to recognize another state's judgment. Because we are constrained in every instance to address the case actually brought, not one that theoretically could have been brought, we have no choice but to analyze Appellees' federally asserted claim under federal law iflegally possible. Accordingly, unlike the question presented in Pennhurst, the question we must answer under the FF&C Clause is whether the Registrar has afforded Appellees' valid New York adoption decree the recognition to which a judgment of another
62

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of refusing to "accept" those out-of-state adoption decrees that declare an unmarried couple to be a Louisiana-born child's "adoptive parents." Given the unambiguous language of Louisiana's nondiscriminatory "Record of Foreign Adoptions" law, the only way the Registrar could constitutionally refuse to issue Appellees a revised birth certificate is if she did not believe the New York decree was valid. But the New York decree's validity is undisputed by the Registrar, as evidenced by her hindsight settlement offer to name either one of the Appellees-but not both-as an "adoptive parent" on Infant J's corrected birth certificate. The Registrar has, therefore, failed to give full faith and credit to the New York adoption decree in refusing to recognize the "adoptive parent" status that it conferred to Appellees.
4. The en bane majority opinion creates a circuit split. The en bane majority superficially dismisses Finstuen v. Crutcher as "an outlier to the jurisprudence offull faith and credit,"72 implicitly disrespecting the Tenth Circuit, as well as the State of Oklahoma and the district court where that case was filed, by failing to determine the jurisdiction to hear such a FF&C Clause case. In fact, though, Finstuen is both instructive and consistent with Supreme Court FF&C Clause jurisprudence. Oklahoma's existing law governing the effect of adoption decrees-quite similar to Louisiana's own birth certificate law-specified rights to holders of final adoption decrees. Generally, Oklahoma law stated: After the final decree of adoption is entered, the relation of parent and child and all the rights, duties, and other legal consequences of

state is constitutionally entitled. 72 En Bane Majority Opinion at 16.
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the natural relation of child and parent shall thereafter exist between the adopted child and the adoptive parents ofthe child and the kindred of the adoptive parents. From the date of the final decree of adoption, the child shall be entitled to inherit real and personal property from and through the adoptive parents in accordance with the statutes of descent and distribution. The adoptive parents shall be entitled to inherit real and personal property from and through the child in accordance with said s t a t u t e s . 73
Oklahoma only differed from Louisiana, however, in that Oklahoma's legislature
forthrightly enacted an additional statute that excluded specific subsets of out-
of-state adoptive parents from entitlement to the benefits conferred by the
general adoption law. Oklahoma's "non-recognition" statute provided:
The courts of this state shall recognize a decree, judgment, or final order creating the relationship of parent and child by adoption, issued by a court or other governmental authority with appropriate jurisdiction in a foreign country or in another state or territory of the United States. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree, judgment, or final order were issued by a court ofthis state. Except that, this state, any of its agencies, or any
court of this state shall not recognize an adoption by more
than one individual of the same sex from any other state or foreign jurisdiction.74
As a result, out-of-state adoptive parents, like Appellees, who should normally
have been able to have their rights as adoptive parents recognized under the
general Oklahoma law, were prevented from doing so by this Oklahoma statute's
mandate ofnon-recognition ofonly particular-but not all-out-of-state adoption
decrees.
73 OKLA. STAT. tit. 10, § 7505-6.5(A).
74 OKLA. STAT. tit. 10, § 7502·1.4(A) (emphasis added).
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No. 09-30036 In essence, the practical effect of the Registrar's policy of non-recognition is the same as that of Oklahoma's statute, which the Tenth Circuit invalidated in Finstuen. Like Oklahoma's general adoption statute, Louisiana's general enforcement provision is nondiscriminatory; and like Oklahoma's nonrecognition statute, the Registrar's specific and exceptional "policy" is indisputably discriminatory. It is that discrimination that ultimately prevented Appellees from obtaining the revised birth certificate that otherwise they would have been able to obtain but for the Registrar's refusal to "accept"-give full faith and credit to-their valid out-of-state adoption decree for purposes of Louisiana's otherwise nondiscriminatory law. Consequently, the en bane majority makes a flawed distinction when it asserts that "[t]he bulk of the [Finstuen] opinion is devoted to analysis ofthe allegedly unconstitutional state non-recognition statute, a problem different than the one here."75 This blesses Louisiana's cynical ploy ofhaving its Registrar and Attorney General do, by executive fiat, that which the Tenth Circuit ruled Oklahoma's legislature could not do statutorily. In fact, by invalidating a statute as violative ofthe FF&C Clause, the Tenth Circuit clearly read the FF&C Clause as binding on every branch ofa state's government, and not just on state judges, which is in direct tension with the en bane majority's reading of the FF&C Clause. The en bane majority's holding, therefore, is in undeniable conflict with the Tenth Circuit's opinion, which ultimately held: "Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates
75 En Bane Majority Opinion at 15.
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J
No. 09-30036 the Full Faith and Credit Clause."76 Here, the Registrar's uncodified policy of categorically rejecting, i.e., not "accepting," one subset of out-of-state adoptions violates the FF&C Clause in precisely the same way as did the now-stricken Oklahoma non-recognition statute. The en bane majority's holding to the contrary has thus created a circuit split-and comes down on the wrong side of it in the process.77
B. The Equal Protection Claim The en bane majority refuses to acknowledge that there are important prudential reasons for this appellate court-sitting en bane at that-to refrain from adjudicating Appellees' Equal Protection claim before the district court or even a panel of this court has done so. Although we do have jurisdiction over that claim, and although the parties have fully briefed it to the en bane court, we should have refrained from being the first court to rule on it. This is because, inter alia, (1) the Registrar never moved for summary judgment on the Equal Protection claim in district court, and (2) the district court never addressed it. The only time we should ever reach an issue that was not first decided in the district court is when such issue presents a pure question oflaw the "proper resolution [of which] ... is beyond any doubt."78 As I respectfully but strongly disagree with the en bane majority's conclusion that the proper resolution of
76 Finstuen, 496 F.3d at 1141. 77 In addition, the en bane majority is simply wrong to claim that "[o]nly one federal court decision has permitted a full faith and credit claim to be brought in federal court pursuant to§ 1983," citing Finstuen. En Bane Majority Opinion at 15. The Seventh Circuit too has allowed a plaintiff to bring a claim under § 1983 against state actors for violating the FF&C Clause. See Rosin, 599 F.3d at 575. 78 Vogt v. Bd. of Comm'rs of Orleans Levee Dist., 294 F.3d 684, 697 (5th Cir. 2002).
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Appellees' Equal Protection Clause claim is purely legal and its resolution is beyond doubt, i.e., wholly without merit, I shall address it briefly iffor no other reason than to demonstrate that the resolution of this claim is definitely not "beyond any doubt."
L The Registrar's denial of an accurate birth certificate to Appellees is not rationally related to Louisiana's interest in furthering in-state adoption by married parents. Rational basis review directs that a challenged state action be sustained "if the classification drawn by the [action] is rationally related to a legitimate state interest."79 Here, Appellees challenge the Registrar's policy of denying an accurate birth certificate-for a Louisiana-born child adopted outside of Louisiana-reflecting both out-of-state unmarried, adoptive parents. Appellees constitutionally challenge that policy as applied to them. To frame this issue properly, we must remain mindful that Appellees are challenging neither (1) Louisiana's birth certificate statute, which is facially neutral as to the marital status of adoptive parents, nor (2) Louisiana's adoption laws, which are entirely inapplicable and unaffected here. Appellees only challenge the executive-branch policy declared by the Registrar. The Registrar has identified Louisiana's interest as "preferring that married couples adopt children" because "a marriage provides a more stable basis for raising children together than relationships founded on something other than marriage." Without any further analysis, however, the Registrar then conclusionally states that her action was rationally related to that interest because "[i]f it is rational to conclude that it is in the best interest of adoptive

79 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). 67

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children to be placed in a home anchored by both a father and a mother, then it is also rational to allow birth certificates to reflect only married couples as 'adoptive parents."' But wait: something just does not add up!
Undoubtedly, the Registrar (and the en bane majority) has tendered a worthy defense of Louisiana's in-state adoption laws, which prohibit Louisiana adoptions by unmarried couples. But, the instant case does not involve a Louisiana adoption at all and poses no threat whatsoever to Louisiana's adoption laws or adoption policy. The one and only thing that Appellees have ever challenged is the Registrar's refusal to accept-recognize-their valid out-ofstate adoption decree so they may obtain a Louisiana birth certificate that accurately reflects their legal status as adoptive parents-pursuant to and wholly consistent with Louisiana's Vital Statistics Laws.80 Appellees' claim has absolutely nothing to do with adoption laws-particularly not Louisiana's adoption laws as found in the Louisiana Children's Code81-and has everything to do with ensuring that the applicable Louisiana public records contain accurate and complete information, pursuant to Louisiana's Vital Statistics Laws, as found in its Revised Statutes. Because the Registrar's policy does not affect Louisiana adoptions, the governmental interest served by her refusal to issue a birth certificate reflecting both unmarried out-of-state adoptive parents must extend beyond a defense of Louisiana's adoption laws.
Another crucial and controlling fact here is that the Registrar did not take the challenged action here until well after Appellees had adopted Infant J and

80 "Vital Statistics Laws" are Chapter 2 of Title 40, "Public Health and Safety," of Louisiana's Revised statutes. See generally LA. REV. STAT. ANN. §§ 40:32-356.
81 See LA. CHILD. CODE ANN. arts. 1198, 1221.
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taken him into their home outside Louisiana. So, there is no way that the potential stability of Infant J's home could have been improved by the Registrar's post hoc action.82 Consequently, because the Registrar has failed to offer a single reason-specific to issuing a birth certificate-how her action is at all related to a legitimate governmental interest, Appellees' Equal Protection claim has at least arguable legal merit. As such, our longstanding prudential practice demands that this challenge be considered first by the district court, where it has never been addressed. Prudence and precedent confirm that this en bane court should refrain from deciding Appellees' Equal Protection Clause claim and instead remand it for the district court to take the first crack at it.
2. The correct Equal Protection Clause comparator to Appellees is "unmarried biological parents," not ''married adoptive parents." Confirming the impropriety ofthe en bane majority's failure to remand the Equal Protection Clause claim to the district court is the presence of a serious controversy regarding the rational basis test. Here, there is no way for the Registrar to pass that test when the correct comparator-"unmarried biological parents"-is used. Up to now, the entire Equal Protection analysis has been made on the assumption that the relevant comparator class to Appellees is couples who are "married non-biological parents," a subset of out-of-state adoptive parents to whom Louisiana readily issues birth certificates without

82 Ifanything, there is an argument that denying Appellees an accurate birth certificate will actually make Infant J's home less stable because of the hardships and tensions that it inevitably could impose on Infant J's parents. These include, without limitation, those specific injuries advanced in the district court and before the panel, e.g., medical insurance inclusion, issue-free travel, etc.
69

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restriction. But that is a baldly flawed assumption: The appropriate comparator class is the one comprising couples who are "unmarried biological parents."83
By statute, Louisiana recognizes and issues birth certificates to unmarried biological parents, irrespective of its proffered policy preference that children only have parents who are married to one another. And nothing in this provision conditions issuance of such birth certificates on the biological parents' maintaining a common home. Just as the unmarried Appellees are unquestionably the legal parents ofInfant J by virtue ofthe New York adoption decree, Louisiana cannot control or change the fact that, both in and outside Louisiana, unmarried couples do give birth to children, and that they do so with increasing frequency-undoubtedly with much greater frequency than unmarried couples adopt. Properly framed, then, the predicate Equal Protection question is, how does Louisiana treat unmarried couples who wish to be named as parents on their biological children's birth certificates?
Louisiana law states:
If a child is born outside of marriage, the full name of the father shall be included on the record ofbirth ofthe child only ifthe father and mother have signed a voluntary acknowledgment of paternity or a court of competent jurisdiction has issued an adjudication of paternity.84

83 This is not to say that I don't believe that Appellees have a viable claim under the Equal Protection Clause using "married non-biological parents" as a comparator, inasmuch as all out-of-state adoptive parents have already lawfully adopted the Louisiana-born children by the time that Louisiana's birth certificate law comes into play, making marital status irrelevant as a condition of the birth certificate. I am simply convinced that "unmarried biological parents" are the better comparator for purposes of this analysis, given that the issue cannot be "stability in the home" and must involve Louisiana's vital statistic laws, which already do reflect the parental status of unmarried couples, i.e., unmarried biological parents.
84 LA. REV. STAT. ANN. § 40:34(B)(l)(h)(ii).
70

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No. 09-30036 So, in Louisiana, an unmarried couple definitely is statutorily entitled to a birth certificate for their biological child, listing both of them as legal parents of that child, regardless of whether those parents share living quarters. The only prerequisite is that those parents or a court verify the accuracy of the information provided-precisely parallel to Louisiana's prerequisite of a valid certified copy of an out-of-state adoption decree to obtain a corrected Louisiana birth certificate.
Because Louisiana will issue a birth certificate listing both members ofan unmarried couple as parents when they are the biological parents ofthe child, the Registrar must identify a legitimate government interest that is served by distinguishing between, and treating differently for purposes of issuing birth certificates, (1) a couple comprising unmarried non-biological adoptive parents and (2) a couple comprising unmarried biological parents, all of whom have equal parental rights under the law. The Registrar has defended her policy as a refusal "to recognize permanently in [Louisiana] public records a parent-child relationship that cannot exist under Louisiana law." But her statement is patently false: Some unmarried couples, viz., unmarried biological parents, can and do maintain parent-child relationships that are recognized under Louisiana law and are recorded on Louisiana birth certificates. This is expressly documented in Louisiana's statutes as well as in its public records. As such, it is at least strongly arguable that there is no legitimate governmental interest served by refusing to issue Appellees an accurate birth certificate, particularly given that, neither Louisiana law nor the Registrar prevents all unmarried couples from being named as parents on birth certificates in Louisiana's permanent public records.
71

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No. 09-30036 What's the legal difference? Where's the Equal Protection? Can there be any question that the en bane majority erred in addressing and dismissing Appellees' Equal Protection Clause claim on the merits before that claim was heard and fully vetted by the district court? For any and all of the foregoing reasons, I must respectfully dissent from the en bane majority's actions in (1) reversing the district court's holding on Appellees' Full Faith and Credit Clause claim and (2) deciding their Equal Protection Clause claims instead of remanding them to the district court for it to perform its essential function of being the first court to address all ripe and well-pleaded claims over which there is federal jurisdiction.
72

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- , . Case: 09-30036 Document: 00511443628 Page: 1 Date Filed: 04/1~11 ·

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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT / · ) · fi;..;.,•. .;,,.:.,..o' . ,.,..: "'\.\

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BILL OF COSTS

\- APfl 1 tl 2011

,j~•t-..~ NOTE: The Bill of Costs Is due in this office within 14 days from the date

t>piniM, See FED. R. APP. P. & S'• CIR. R. 39. Untimely bills of costs musl be

accompanied by a separate motion to file out of time, which the court may deny.

9£-EiN A!:!e& {~i£.k"'l ~$Mnl\

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The Clerk is requested to tal: the followi•g costs agaiust: -.IP.,:::lL\'14i'f~J.U..<!<::sE<..SEi..S.:L_______________________________

COSTSTAXABLEUNDER Fed. R. App. P. & s~ Cir. R. 39

No. of Copies

REQUESTED

ALLOWED
(If different from. amouat requested)

Docket he ($450.00) Appeadi:l or Record Excerpts Appellaot's Brief Appellee•s Brief Appetlaot's Reply Brief Otber:

1ql. 26 Costs are taxed in the amouat of S

Costs are hereby taxed io the amount or S

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this

State of
Councyor ______________________

day of May

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*SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS

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Case 2:07-cv-0654U1-nJCitZe-dKWSRtatDeoscuCmoeuntr8t9ofFAilepd p05e/a04l/s11 Page 77 of 77 FIFTH CIRCUIT OFFICE OF THE CLERK

LYLE W. CAYCE CLERK

TEL. 504-310-7700 600 S, MAESTRI PLACE
NEW ORLEANS, LA 70130

May 04, 2011

Ms. Loretta Whyte
U.S. District Court, Eastern District of Louisiana 500 Poydras Street Room C-151
New Orleans, LA 70130

No. 09-30036, Oren Adar, et al v. Darlene Smith USDC No. 2:07-CV-6541
Enclosed, for the Eastern District of Louisiana, New Orleans only, is a copy of the judgment issued as the mandate.
Enclosed, for the Eastern District of Louisiana, New Orleans only, is a copy of the court's opinion.
Record/original papers/exhibits to be returned.
Enclosed for the Eastern District of Louisiana, New Orleans and counsel is the approved bill of costs.
Sincerely,
LYLE W. CAYCE, Clerk
By:~cfo~
Misty L. Fontenot, Deputy Clerk 504-310-7716
cc w/encl: Honorable Jay c. Zainey Mr. Ralph Joseph Aucoin Sr. Mr. Matthew Donald Benedetto Mr. Richard Arthur Bordelon Mr. Stephen M Crampton Mr. Spencer R. Doody Mr. Stuart Kyle Duncan Mr. William Duncan Mr. Lawrence John Joseph Mr. Noah Adam Levine Ms. Peiyin Patty Li Ms. Regina 0. Matthews Ms. Mary Elizabeth McAlister Mr. David Austin Robert Nimocks Ms. Katharine Murphy Schwartzmann Ms. Anita Leigh Staver Mr. Mathew D. Staver Mr. Kenneth Dale Upton Jr. Mr. Michael L. Vincenzo
P.S. to Judge Zainey: A copy of the opinion was sent to your office via email the day it was filed.

P.S. to All Counsel: In light of this court's en bane opinion of 4/12/11, the appellees' bill of costs filed on 3/3/10 is declared moot.

 
 U. S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:07−cv−06541−JCZ−KWR

CLOSED

Adar et al v. Smith Assigned to: Judge Jay C. Zainey Referred to: Magistrate Judge Karen Wells Roby Case in other court: USCOA 5th Circuit, 09−30036
USCA, 5th Circuit, 09−30036 Cause: 28:1983 Civil Rights
Plaintiff

Date Filed: 10/09/2007 Date Terminated: 12/29/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Oren Adar individually and as parent and next friend of J.C.A.−S., a minor

represented by Regina O. Matthews Martzell &Bickford 338 Lafayette St. New Orleans, LA 70130 (504) 581−9065 Email: usdcedla@mbfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth D. Upton , Jr. Lambda Legal Defense and Education Fund, Inc. (Dallas) 3500 Oak Lawn Avenue Suite 500 Dallas, TX 75219 214−219−8585 Email: kupton@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Spencer R. Doody Martzell &Bickford 338 Lafayette St. New Orleans, LA 70130 (504) 581−9065 Fax: 504−581−7635 Email: usdcedla@mbfirm.com ATTORNEY TO BE NOTICED

Plaintiff
Mickey Ray Smith individually and as parent and next friend of J.C.A.−S., a minor

represented by Regina O. Matthews (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth D. Upton , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Spencer R. Doody (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Darlene W. Smith in her capacity as State Registrar and Director, Office of Vital Records and Statistics, State of Louisiana Department of Health and Hospitals

Carol Lee Haynes Louisiana Department of Health &Hospitals (New Orleans) Bureau of Legal Services 1450 Poydras St. Suite 1657 New Orleans, LA 70112 504−599−1434 Fax: 504−599−1432 Email: chaynes@dhh.la.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Kyle Duncan Louisiana Department of Justice Litigation Division P.O. Box 94005 1885 North 3rd St. Baton Rouge, LA 70804−9005 225−326−6716 Email: duncank@ag.state.la.us ATTORNEY TO BE NOTICED
Tunde M. Anima−Shaun Arthur F. Schafer P.O. Box 81054 Lafayette, LA 70598 225−326−6300 Fax: 225−326−6495 Email: anima−shaunt@ag.state.la.us ATTORNEY TO BE NOTICED

Date Filed 10/09/2007 10/09/2007 10/09/2007 10/12/2007 11/12/2007 11/30/2007
12/03/2007
01/14/2008

# Docket Text
1 COMPLAINT against Darlene W. Smith (Filing fee $ 350.) filed by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Civil Cover Sheet)(cms, ) (Entered: 10/09/2007)
2 Summons Issued as to Darlene W. Smith. (cms, ) (Entered: 10/09/2007)
3 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice as to Kenneth D. Upton, Jr. (Filing fee $5.) by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Affidavit &Certificate)(gbw, ) (Entered: 10/19/2007)
4 ORDER granting 3 Motion to Appear Pro Hac Vice as to Kenneth D. Upton, Jr.. Signed by Judge Jay C. Zainey on 10/9/07. (gbw, ) (Entered: 10/19/2007)
5 WAIVER OF SERVICE Returned Executed; waiver sent to Darlene W. Smith on 10/9/2007, answer due 12/3/2007. (Matthews, Regina) Modified text on 11/13/2007 (gbw, ). (Entered: 11/12/2007)
6 MOTION to Dismiss for Lack of Jurisdiction by Darlene W. Smith. Motion Hearing set for 1/23/2008 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support # 2 Notice of Hearing)(Haynes, Carol) (Entered: 11/30/2007)
7 Correction of Docket Entry by Clerk re 6 MOTION to Dismiss for Lack of Jurisdiction. Document's signature line is either incomplete or blank. All future documents must reflect either an original signature or an electronic signature of the filing attorney following the format 's/ (attorney name)'. No further action is necessary. (gbw, ) (Entered: 12/03/2007)
8 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 6 MOTION to Dismiss for Lack of Jurisdiction. (Matthews, Regina) (Entered: 01/14/2008)

01/14/2008 01/22/2008 01/28/2008 02/07/2008
04/01/2008 04/01/2008 04/11/2008 05/14/2008 05/23/2008 06/26/2008
06/27/2008 06/30/2008 07/02/2008 09/11/2008 09/12/2008 11/14/2008 11/21/2008
11/24/2008

9 Request/Statement of Oral Argument by all plaintiffs regarding 6 MOTION to Dismiss for Lack of Jurisdiction. (Attachments: # 1 Proposed Order)(Matthews, Regina) (Entered: 01/14/2008)
10 ORDER Setting oral argument on 6 MOTION to Dismiss for Lack of Jurisdiction ; Oral Argument set for 3/12/2008 10:00 AM. Signed by Judge Jay C. Zainey on 1/18/08.(jrc, ) (Entered: 01/22/2008)
11 ORDER Resetting Oral Argument on 6 MOTION to Dismiss for Lack of Jurisdiction: Oral Argument reset for 3/19/2008 10:00 AM before Judge Jay C. Zainey.. Signed by Judge Jay C. Zainey.(jrc, ) (Entered: 01/28/2008)
12 ORDER that 6 MOTION to Dismiss for Lack of Jurisdiction filed by Darlene W. Smith shall be heard on the briefs w/o oral argument. Oral argument set for 3/19/08 10:00 AM is CANCELLED. Signed by Judge Jay C. Zainey on 2/6/08.(gbw, ) (Entered: 02/07/2008)
13 ORDER denying 6 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Jay C. Zainey on 3/31/08. (jrc, ) (Entered: 04/01/2008)
14 NOTICE Scheduling Conference set for 5/14/2008 3:15 PM before courtroom deputy by telephone, by Clerk.(jrc, ) (Entered: 04/01/2008)
15 ANSWER to Complaint by Darlene W. Smith.(Haynes, Carol) (Entered: 04/11/2008)
16 SCHEDULING ORDER: Final Pretrial Conference set for 1/14/2009 4:30 PM, Bench Trial set for 2/9/2009 9:30 AM. Signed by Judge Jay C. Zainey on 5/14/08. (Attachments: # 1 Pretrial Notice Form)(jrc, ) (Entered: 05/16/2008)
17 ORDER: Settlement Conference set for 12/5/2008 02:00 PM before Magistrate Judge Karen Wells Roby.. Signed by Magistrate Judge Karen Wells Roby on 5/23/08.(NEF: Zainey)(bbc, ) (Entered: 05/27/2008)
18 EXPARTE/CONSENT MOTION to Amend/Correct 1 Complaint by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Exhibit Consent of Opposing Counsel, # 2 Proposed Order, # 3 Proposed Pleading)(Upton, Kenneth) Modified on 6/27/2008 (gbw, ). (Entered: 06/26/2008)
19 ORDER granting 18 Motion to Amend Complaint. Signed by Judge Jay C. Zainey on 6/27/08. (gbw, ) (Entered: 06/30/2008)
20 AMENDED COMPLAINT against Darlene W. Smith filed by Oren Adar, Mickey Ray Smith.(gbw, ) (Entered: 06/30/2008)
21 ANSWER to 20 Amended Complaint by Darlene W. Smith.(Haynes, Carol) (Entered: 07/02/2008)
22 **DOCUMENT STRICKEN** NOTICE to Take Deposition of Defendant Darlene W. Smith by Oren Adar, Mickey Ray Smith.(Upton, Kenneth) Modified on 9/12/2008 (gec, ). (Entered: 09/11/2008)
23 Correction of Docket Entry by Clerk re 22 Notice to Take Deposition. Document has been stricken pursuant to Federal Rule of Civil Procedure 5(d). (gec, ) (Entered: 09/12/2008)
24 Witness and Exhibit List by all plaintiffs. (Upton, Kenneth) (Entered: 11/14/2008)
25 DEFICIENT. MOTION for Summary Judgment by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Appendix Attachment 1 − Smith Depo Excerpts, # 3 Appendix Attachment 2 − Affd Pltf Oren Adar, # 4 Appendix Attachment 3 − Affd of Pltf Mickey Ray Smith, # 5 Memorandum in Support)(Upton, Kenneth) Modified on 11/24/2008 (gbw, ). (Entered: 11/21/2008)
26 DEFICIENT. MOTION for Summary Judgment by Oren Adar, Mickey Ray Smith. Motion Hearing set for 12/10/2008 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Appendix Attachment 1 − Darlene Smith Depo Excerpts, # 3 Appendix Attachment 2 − Affd Pltf Oren Adar, # 4 Appendix Attachment 3 − Affd of Pltf Mickey Ray Smith, # 5

11/25/2008
11/26/2008 11/26/2008 11/28/2008 12/03/2008 12/03/2008 12/04/2008
12/04/2008 12/04/2008 12/05/2008 12/22/2008 12/29/2008 01/05/2009 01/06/2009 01/13/2009

Memorandum in Support)(Upton, Kenneth) Modified on 11/25/2008 (gbw, ). (Entered: 11/24/2008)
27 MOTION for Summary Judgment by Oren Adar, Mickey Ray Smith. Motion Hearing set for 12/10/2008 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Notice of Hearing, # 2 Statement of Contested/Uncontested Facts, # 3 Appendix Attachment 1 − Def Darlene Smith Depo Excerpts, # 4 Appendix Attachment 2 − Affd of Pltf Oren Adar, # 5 Appendix Attachment 3 − Affd of Pltf Mickey Ray Smith, # 6 Memorandum in Support)(Upton, Kenneth) (Entered: 11/25/2008)
28 ERROR: WRONG EVENT SELECTED. AFFIDAVIT in Opposition by Affiant carol haynes re 27 MOTION for Summary Judgment. (Haynes, Carol) Modified on 11/28/2008 (gbw, ). (Entered: 11/26/2008)
30 RESPONSE/MEMORANDUM in Opposition filed by Darlene W. Smith re 27 MOTION for Summary Judgment. (gbw, ) (Entered: 11/28/2008)
29 Correction of Docket Entry by Clerk re 28 Affidavit in Opposition to Motion. Filing attorney selected incorrect event. Correct event is Response/Memorandum in opposition to motion. Clerk took corrective action by re−docketing the event.(gbw, ) (Entered: 11/28/2008)
31 EXPARTE MOTION for Leave to File Reply Memorandum by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Reply Memo)(Doody, Spencer) Modified on 12/4/2008 (gbw, ). (Entered: 12/03/2008)
33 Minute Entry for proceedings held before Magistrate Judge Karen Wells Roby: Settlement Conference held on 12/3/2008; negotiations unsuccessful − settlement not reached; ORDERED that Settlement Conference set for 12/5/2008 02:00 PM is cancelled (rll, ) (NEF to Judge Zainey) (Entered: 12/04/2008)
32 Correction of Docket Entry by Clerk re 31 MOTION for Leave to File Reply Memorandum. Filing attorney should have changed 'N' to 'Y' at the question 'Is this an Exparte/Consent Motion Y/N?' before clicking the Next button. Clerk modified docket text to reflect 'Exparte'. Filing attorney did not select Mickey Ray Smith as a filer(s). Clerk added filer(s).Filing attorney incorrectly changed 'N' to 'Y' at the question 'Is this motion to be decided by the Magistrate Judge Y/N?'. This motion will be decided by the district judge. Clerk took corrective action.(gbw, ) (Entered: 12/04/2008)
34 ORDER granting 31 Motion for Leave to File reply memo. Signed by Judge Jay C. Zainey on 12/3/08. (gbw, ) (gbw, ). (Entered: 12/04/2008)
35 Correction of Docket Entry by Clerk re 34 Order on Motion for Leave to File. image of document was not attached. Clerk took corrective action. (gbw, ) (Entered: 12/04/2008)
36 REPLY MEMORANDUM in Support filed by Oren Adar, Mickey Ray Smith re 27 MOTION for Summary Judgment. (gbw, ) (Entered: 12/05/2008)
37 ORDER &REASONS granting 27 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 12/22/08. (gbw, ) (Entered: 12/23/2008)
38 JUDGMENT entered in favor of Mickey Ray Smith, Oren Adar against Darlene W. Smith. Signed by Judge Jay C. Zainey on 12/29/08.(gbw, ) (Entered: 12/30/2008)
39 BILL OF COSTS by all plaintiffs. Hearing set for January 21, 2009 at 9:30 a.m. before Clerk of Court (Attachments: # 1 Notice of Hearing # 2 Exhibits)(Doody, Spencer) (Entered: 01/05/2009)
40 MOTION for Attorney Fees by Oren Adar, Mickey Ray Smith. Motion Hearing set for 1/21/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support Memo, # 2 Exhibit Attorney Time Report Summary, # 3 Notice of Hearing)(Upton, Kenneth) (Entered: 01/06/2009)
41 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Darlene W. Smith. (Attachments: # 1 Proposed Order)(Haynes, Carol) (Additional attachment(s) added on 1/14/2009: # 2 Main Document) (gbw, ). (Entered:

01/13/2009 01/14/2009 01/14/2009
01/14/2009
01/14/2009
01/14/2009 01/15/2009 01/20/2009 01/22/2009 01/22/2009 01/23/2009 01/30/2009 02/02/2009 02/02/2009 02/03/2009

01/13/2009)
42 DEFICIENT. MOTION for New Trial by Darlene W. Smith. Motion Hearing set for 3/18/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support)(Haynes, Carol) Modified on 1/14/2009 (gbw, ). (Entered: 01/13/2009)
43 Correction of Docket Entry by Clerk re 41 MOTION to Enroll as Counsel of Record. Proposed Order should be added as a separate attachment to the motion and not as part of the motion. Clerk took corrective action. No further action is necessary. (gbw, ) (Entered: 01/14/2009)
44 Correction of Docket Entry by Clerk re 41 MOTION to Enroll as Counsel of Record. Document's signature line is either incomplete or blank. All future documents must reflect either an original signature or an electronic signature of the filing attorney following the format 's/ (attorney name)'. No further action is necessary. (gbw, ) (Entered: 01/14/2009)
45 ERROR: MOTION WITH MULTIPLE RELIEFS FILED AS ONE RELIEF. MOTION for New Trial by Darlene W. Smith. Motion Hearing set for 3/18/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(Haynes, Carol) Modified on 1/14/2009 (gbw, ). (Entered: 01/14/2009)
46 Correction of Docket Entry by Clerk re 45 MOTION for New Trial. Filing attorney selected only one relief for a multiple−relief motion. To select multiple reliefs, you must select all applicable reliefs by pressing the 'control key' and clicking the additional reliefs before clicking the Next button. Clerk took corrective action by re−docketing the document using the reliefs MOTION for New Trial, MOTION to Dismiss. (gbw, ) (Entered: 01/14/2009)
47 MOTION for New Trial, MOTION to Dismiss by Darlene W. Smith. Motion Hearing set for 3/18/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(gbw, ) (Entered: 01/14/2009)
48 ORDER granting 41 Motion to Enroll S. Kyle Duncan as additional counsel for Darlene W. Smith. Signed by Judge Jay C. Zainey on 1/15/09. (jrc, ) (Entered: 01/15/2009)
49 NOTICE OF APPEAL by Darlene W. Smith as to 38 Judgment. Filing fee $ 455 Paid.(Duncan, Stuart) Modified on 1/21/2009 (gbw, ). Modified on 1/27/2009 (gbw, ). (Entered: 01/20/2009)
51 Bill of Costs Taxed in amount of $682.20. Signed by Clerk on 1/21/09. (gbw, ) (Entered: 01/23/2009)
52 USCA Appeal Fees received $ 455 re 49 Notice of Appeal filed by Darlene W. Smith. (gbw, ) (Entered: 01/27/2009)
50 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 47 MOTION for New Trial MOTION to Dismiss. (Upton, Kenneth) (Entered: 01/23/2009)
53 DEFICIENT. REPLY to Response to Motion filed by Darlene W. Smith re 47 MOTION for New Trial MOTION to Dismiss. (Duncan, Stuart) Modified on 2/2/2009 (gbw, ). (Entered: 01/30/2009)
54 EXPARTE/CONSENT MOTION for Leave to File Reply to Plaintiffs' Opposition to Motion for New Trial and Motion to Dismiss by Darlene W. Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Duncan, Stuart) (Entered: 02/02/2009)
55 EXPARTE/CONSENT MOTION for Leave to File Supplemental Authority by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Upton, Kenneth) (Entered: 02/02/2009)
57 ORDER granting 54 Motion for Leave to File reply to plaintiff's opposition to motion for new trial and motion to dismiss. Signed by Judge Jay C. Zainey on 2/3/09. (gbw, ) (Entered: 02/04/2009)

02/03/2009 02/03/2009 02/04/2009 02/04/2009 02/06/2009 02/12/2009 02/12/2009
02/12/2009 02/12/2009 02/19/2009
03/03/2009 03/18/2009
03/18/2009
03/20/2009

59 ORDER granting 55 Motion for Leave to File supplemental authority in opposition to motion for new trial. Signed by Judge Jay C. Zainey on 2/3/09. (gbw, ) (Entered: 02/04/2009)
61 Certified and Transmitted Record on Appeal to US Court of Appeals re 49 Notice of Appeal. USCA Case Number 09−30036. (gbw, ) (Entered: 02/04/2009)
58 REPLY to Response to Motion filed by Darlene W. Smith re 47 MOTION for New Trial MOTION to Dismiss. (gbw, ) (Entered: 02/04/2009)
60 SUPPLEMENTAL AUTHORITY in Opposition filed by Oren Adar re 47 MOTION for New Trial MOTION to Dismiss. (gbw, ) (Entered: 02/04/2009)
62 MOTION to Enforce Judgment In Part by Oren Adar, Mickey Ray Smith. Motion Hearing set for 3/4/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(Upton, Kenneth) (Entered: 02/06/2009)
63 RESPONSE/MEMORANDUM in Opposition filed by Darlene W. Smith re 62 MOTION to Enforce Judgment In Part. (Duncan, Stuart) (Entered: 02/12/2009)
64 MOTION to Continue Plaintiffs' March 4 hearing on Motion for Partial Enforcement of Judgment to March 18 by Darlene W. Smith. Motion Hearing set for 3/4/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(Duncan, Stuart) (Entered: 02/12/2009)
65 EXPARTE/CONSENT MOTION to Expedite, MOTION for Hearing re 64 MOTION to Continue Plaintiffs' March 4 hearing on Motion for Partial Enforcement of Judgment to March 18 by Darlene W. Smith. (Attachments: # 1 Proposed Order)(Duncan, Stuart) (Entered: 02/12/2009)
66 MOTION to Stay Judgment of December 29, 2008 by Darlene W. Smith. Motion Hearing set for 3/18/2009 09:00 AM before Judge Jay C. Zainey. (Attachments: # 1 Memorandum in Support, # 2 Notice of Hearing)(Duncan, Stuart) (Entered: 02/12/2009)
67 ORDER SETTING ORAL ARGUMENT on 47 MOTION for New Trial MOTION to Dismiss, 40 MOTION for Attorney Fees, 66 MOTION to Stay Judgment of December 29, 2008, FURTHER ORDERED that the 64 MOTION to Continue Plaintiffs' March 4 hearing on Motion for Partial Enforcement of Judgment to March 18, 65 MOTION to Expedite are GRANTED. The hearing on 62 MOTION to Enforce Judgment In Part is set for hrg on 3/18/09.. Signed by Judge Jay C. Zainey on 2/19/09.(gbw, ) (Entered: 02/20/2009)
68 RESPONSE/MEMORANDUM in Opposition filed by all plaintiffs re 66 MOTION to Stay Judgment of December 29, 2008. (Attachments: # 1 Exhibit Perdue v Ms Bd of Health)(Upton, Kenneth) (Entered: 03/03/2009)
69 ORDER DENYING 47 Motion for New Trial/Motion to Dismiss; GRANTING 62 Motion to Enforce Judgment; DENYING 66 Motion to Stay Judgment, ordering that the State Registrar, Office of Vital Records and Statistics issue a completed birth certificate reflecting the names of the adoptive parents in accordance with this Court's Judgment within 15 days of the signing of this order; DEFERRING 40 Motion for Attorney Fees, Defendant shall file a response within 15 days of the signing of this order. Signed by Judge Jay C. Zainey. (jrc, ) (Entered: 03/18/2009)
70 Minute Entry for proceedings held before Judge Jay C. Zainey: Motion Hearing held on 3/18/2009 re 66 MOTION to Stay Judgment of December 29, 2008 filed by Darlene W. Smith, 40 MOTION for Attorney Fees filed by Oren Adar, Mickey Ray Smith, 62 MOTION to Enforce Judgment In Part filed by Oren Adar, Mickey Ray Smith, 47 MOTION for New Trial MOTION to Dismiss filed by Darlene W. Smith. A Separate order will be issued. (Court Reporter Vic DiGiorgio.) (Attachments: # 1 Exhibit) (gbw, ) (Entered: 03/19/2009)
71 EXPARTE/CONSENT MOTION for Leave to File Supplement to Motion for Attorney Fees by Oren Adar, Mickey Ray Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Supplement to Motion for Atty Fees)(Upton,

03/23/2009 03/24/2009 03/24/2009 03/25/2009 03/27/2009 03/31/2009
04/01/2009 04/01/2009 04/01/2009 04/01/2009 04/02/2009 04/03/2009
04/07/2009 04/09/2009 05/29/2009 04/15/2011
05/04/2011

Kenneth) (Entered: 03/20/2009)
72 ORDER granting 71 Motion for Leave to supplement motion for attorney fees. Signed by Judge Jay C. Zainey on 3/23/09. (gbw, ) (Entered: 03/24/2009)
73 Supplement to Document by Oren Adar, Mickey Ray Smith re 40 MOTION for Attorney Fees. (Attachments: # 1 Exhibit)(gbw, ) (Entered: 03/24/2009)
74 APPEAL TRANSCRIPT REQUEST by Darlene W. Smith for proceedings held on 3/18/09 re 49 Notice of Appeal. (gbw, ) (Entered: 03/26/2009)
75 Supplemental Record on Appeal transmitted to US Court of Appeals re 49 Notice of Appeal.(gbw, ) (Entered: 03/26/2009)
76 ORDER of USCA as to 49 Notice of Appeal filed by Darlene W. Smith; ORDERED that the Motion for Stay Pending Appeal is GRANTED by Circuit Judges: Smith and Stewart. (Attachments: # 1 Letter)(gbw, ) (Entered: 03/30/2009)
77 APPEAL TRANSCRIPT of Motion Hearing held on March 18, 2009 before Judge Jay C. Zainey. Court Reporter/Recorder Vic DiGiorgio, Telephone number (504) 589−7782. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 21 days from the filing of this transcript to file with the Court a Redaction Request. Release of Transcript Restriction set for 6/29/2009. (clu, ) (Entered: 03/31/2009)
78 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Darlene W. Smith. (Attachments: # 1 Proposed Order)(Haynes, Carol) (Entered: 04/01/2009)
79 RESPONSE to Motion filed by Darlene W. Smith re 40 MOTION for Attorney Fees, 71 MOTION for Leave to File Supplement to Motion for Attorney Fees. (Haynes, Carol) (Entered: 04/01/2009)
80 ORDER granting 78 Motion to Enroll Babatunde Mobolade Animashaun as Co−Counsel of Record for defendant Darlene W. Smith. Signed by Judge Jay C. Zainey on 4/1/09. (jrc, ) (Entered: 04/03/2009)
84 Supplemental Record on Appeal transmitted to US Court of Appeals re 49 Notice of Appeal, 81 Amended Notice of Appeal (rll, ) (Entered: 04/09/2009)
83 Appeal Record on Loan re 49 Notice of Appeal, 81 Amended Notice of Appeal − 1 Volume of Original Record, 2 Supplemental Record Volumes. (rll, ) (Entered: 04/09/2009)
81 AMENDED NOTICE OF APPEAL by Darlene W. Smith as to 69 Order on Motion for Attorney Fees, Order on Motion for New Trial, Order on Motion to Dismiss, Order on Motion to Enforce Judgment, Order on Motion to Stay. (Duncan, Stuart) Modified on 4/13/2009 (gbw, ). (Entered: 04/03/2009)
82 ORDER dismissing 40 Motion for Attorney Fees without prejudice pending the decision of the appellate court as set forth therein. Signed by Judge Jay C. Zainey on 4/7/09. (rll, ) (Entered: 04/09/2009)
85 Supplemental Record on Appeal transmitted to US Court of Appeals re 49 Notice of Appeal, 81 Amended Notice of Appeal. (gbw, ) (Entered: 04/13/2009)
87 Appeal Record on Loan to Kenneth D. Upton, Jr re 49 Notice of Appeal, 81 Amended Notice of Appeal − 1 Volume of Original Record, 3 Supplemental Record Volumes. (gec, ) (Entered: 06/02/2009)
88 ORDER of USCA as to 49 Notice of Appeal filed by Darlene W. Smith, 81 Amended Notice of Appeal, filed by Darlene W. Smith. ORDERED that appellee's motion for appeal−related attorneys' fees is DENIED. USCA Judge Name: Edith H. Jones.(gbw, ) (Entered: 04/18/2011)
89 USCA JUDGMENT issued as mandate on 5/4/2011 as to 81 Amended Notice of Appeal, filed by Darlene W. Smith, 49 Notice of Appeal filed by Darlene W. Smith. ORDERED that the judgment of the District Court is reversed and remanded for entry of judgment of dismissal. FURTHER ORDERED that the

05/12/2011 05/20/2011 10/19/2011

Appellees Oren Adar and Mickey Ray Smith pay to Appellant Darlene W. Smith the costs on appeal to be taxed by the Clerk of this Court. USCA judge name: Jones, Reavley, Jolly, Davis, Smith, Wiener, Garza, Benavides, Stewart, Dennis, Clement, Prado, Owen, Elrod, Southwick and Haynes. (gbw, ) (Entered: 05/05/2011)
90 Appeal Record Returned (original exhibits and/or non−electronic documents) from U.S. Court of Appeals: 49 Notice of Appeal, 81 Amended Notice of Appeal, (gbw, ) (Entered: 05/17/2011)
91 JUDGMENT entered in favor of Darlene W. Smith against Mickey Ray Smith, Oren Adar, dismissing plaintiffs' complaint. Signed by Judge Jay C. Zainey on 5/18/2011.(gbw, ) (Entered: 05/20/2011)
92 Letter from U.S. Supreme Court denying Writ of Certiorari. (blg) (Entered: 10/20/2011)

 
 Adar v. Smith, 597 F.3d 697 (2010)

597 F.3d 697 United States Court of Appeals,
Fifth Circuit.
Oren ADAR, Individually and as Parent and Next Friend of J.C. A.–S., a minor; Mickey Ray Smith, Individually and as Parent and Next Friend of J.C.
A.–S., a minor, Plaintiffs–Appellees, v.
Darlene W. SMITH, In Her Capacity as State Registrar and Director, Office of Vital Records and
Statistics, State of Louisiana Department of Health and Hospitals, Defendant–Appellant.
No. 09–30036. | Feb. 18, 2010.
Synopsis Background: Unmarried same-sex adoptive parents of child born in Louisiana but adopted in New York sued State Registrar of Louisiana’s Office of Vital Records and Statistics, seeking injunctive relief and declaratory judgment that Registrar’s refusal to enforce New York adoption decree and to issue amended birth certificate violated Full Faith and Credit Clause. Adoptive parents moved for summary judgment. The United States District Court for the Eastern District of Louisiana, Jay C. Zainey, J., 591 F.Supp.2d 857, granted motion. State Registrar appealed.
Holdings: The Court of Appeals, Wiener, Circuit Judge, held that:
[1] like infant, adoptive parents had made sufficient allegations of statutory right to provide standing to pursue their claims against Registrar;
[2] adoptive parents’ allegations of injury flowing from Registrar’s failure to comply with statute satisfied prerequisites of injury-in-fact for Article III standing purposes;
[3] Louisiana owed full faith and credit to subject New York adoption decree; and
[4] full faith and credit required Louisiana, under plain language of its own statute and constitutional requirement of “evenhanded” enforcement of that judgment, to issue a certificate for infant that listed both adoptive parents as his parents.

Affirmed.
Attorneys and Law Firms
*700 Kenneth Dale Upton, Jr. (argued), Lambda Legal Defense & Educ. Fund, Inc., Dallas, TX, Spencer R. Doody, Regina O. Matthews, New Orleans, LA, for Plaintiffs–Appellees.
Stuart Kyle Duncan, Asst. Atty. Gen., (argued), Baton Rouge, LA, for Defendant–Appellant.
Richard Arthur Bordelon, Ralph Joseph Aucoin, Sr., Denechaud & Denechaud, L.L.P., New Orleans, LA, for LA Conference of Catholic Bishops, Amicus Curiae.
Austin R. Nimocks, Alliance Defense Fund, Washington, DC, for Family Research Council, Louisiana Family Forum, Amici Curiae.
Mathew D. Staver, Anita Leigh Staver, Liberty Counsel, Maitland, FL, Stephen M. Crampton, Mary Elizabeth McAlister, Liberty Coinsel, Lynchburg, VA, for Liberty Counsel, Amicus Curiae.
*701 Katharine Murphy Schwartzmann, Amer. Civ. Liberties Union Foundation of LA, New Orleans, AL, for Amer. Civ. Liberties Union, Amer. Civ. Liberties Union of LA, Amici Curiae.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
Opinion
WIENER, Circuit Judge:
Plaintiffs–Appellees Oren Adar and Mickey Ray Smith (the “Adoptive Parents”), individually and next friends of their adopted minor son, Plaintiff–Appellee J C A–S (“Infant J”), all three referred to collectively as “Plaintiffs–Appellees,” brought this injunction action against Defendant–Appellant Darlene W. Smith, the Louisiana State Registrar (the “Registrar”), to force her to issue a new original birth certificate (“Certificate”) for Infant J, who was born in Louisiana. The Adoptive Parents are unmarried adult males who obtained a joint adoption decree for Infant J in a New York state court.
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Adar v. Smith, 597 F.3d 697 (2010)
After obtaining that decree, the Adoptive Parents applied to the Registrar for a Certificate listing both men as parents of Infant J. The Registrar refused to issue the Certificate, citing Louisiana statutes that prohibit the instate adoption of children by unmarried couples. On a motion for summary judgment, the district court issued a mandatory injunction, commanding the Registrar to issue the Certificate on grounds that (1) Louisiana owes full faith and credit to the New York adoption decree, and (2) LA. REV.STAT. ANN. § 40:76 authorizes the issuance of a Certificate listing both men as adoptive parents of Infant J. The Registrar timely appealed. We affirm.
I. FACTS AND PROCEEDINGS
A. Facts Infant J is a male who was born in Shreveport, Louisiana, in 2005. In April 2005 the Adoptive Parents, who then resided in Connecticut, obtained an agency adoption of Infant J in the Family Court of Ulster County, New York, pursuant to New York state law that authorizes joint adoptions by unmarried, same-sex couples.
After obtaining this New York adoption decree, the Adoptive Parents arranged for a Report of Adoption to be forwarded from the New York Department of Health to the Louisiana Department of Health and Hospitals, Office of Public Health, Vital Records and Statistics. The Adoptive Parents sought to have a Certificate issued and recorded for Infant J, reflecting his new name and his relationship to the Adoptive Parents. Before deciding whether to comply with that request, the Department of Health and Hospitals requested an opinion from the State’s Attorney General whether Louisiana was required to issue the requested Certificate. The Attorney General issued an opinion that Louisiana does not owe full faith and credit to the instant New York adoption judgment because it is repugnant to Louisiana’s public policy of not allowing joint adoptions by unmarried persons.
Approximately one week after receiving this opinion, the Registrar wrote to the Adoptive Parents informing them of her decision to decline to issue the Certificate. The Registrar’s letter stated that because (1) Louisiana only authorizes in-state adoptions by single adults or married couples; (2) LA.REV.STAT. ANN. § 40:76 vests the Registrar with full discretion in issuing amended birth certificates for out-of-state adoptions of Louisiana-born children; and (3) LA.REV.STAT. ANN. § 40:34(D) only authorizes the Registrar to issue amended Certificates in accordance with Louisiana *702 law, the State’s Office of

Vital Records and Statistics was “not able to accept the New York adoption judgment to create a new birth certificate.” As additional support for not issuing the Certificate, the Registrar cited the State Attorney General’s opinion that Louisiana does not owe full faith and credit to the instant New York judgment.
B. Proceedings In October 2007, the Plaintiffs–Appellees filed suit in the Eastern District of Louisiana against the Registrar in her official capacity, seeking (1) a declaration that the Registrar’s refusal to issue the Certificate violates both the Full Faith and Credit Clause (the “Clause”) and the Equal Protection Clause of the United States Constitution and (2) a mandatory injunction requiring the Registrar to issue a Certificate that identifies both Adoptive Parents as Infant J’s parents.
The Registrar filed a motion to dismiss for lack of jurisdiction which the district court denied. After the Registrar filed an answer to the amended complaint, the Adoptive Parents filed a motion for summary judgment. In it they asserted that (1) by its plain language, LA.REV.STAT. ANN. § 40:76 expressly requires the issuance of a Certificate for Infant J reflecting that both Adoptive Parents are his parents, (2) Louisiana owes full faith and credit to the New York state adoption decree, and (3) failure to issue a Certificate for Infant J denies the Plaintiffs–Appellees equal protection under the United States Constitution.
In granting summary judgment to the Plaintiffs– Appellees, the district court held that Louisiana owes full faith and credit to the New York adoption decree and that there is no public policy exception to the Clause. The court also went on to state that a forum state’s enforcement of such a decree from an adjudicating state is subject to the “evenhanded” enforcement of the laws of the forum state. The district court then examined the Louisiana statute that governs the recording of out-ofstate adoptions of Louisiana-born children and held that the plain language of the statute mandates that, on receipt of a duly certified copy of the New York adoption decree, the Registrar had to issue a Certificate for Infant J that contains the names of the Adoptive Parents as his parents. As the trial court granted summary judgment on grounds of Full Faith and Credit and Louisiana law, it did not reach the Plaintiffs–Appellees’ equal protection claim.
Before filing her timely notice of appeal, the Registrar filed a motion in the district court seeking either a new trial or dismissal. In that motion, the Registrar asserted for the first time that the Adoptive Parents lacked standing
2

Adar v. Smith, 597 F.3d 697 (2010)
and, in the alternative, that the district court should abstain from interpreting LA.REV.STAT. ANN. § 40:76 and instead certify the question to the Louisiana Supreme Court. After briefing and a hearing, the district court denied the Registrar’s motion for a new trial or dismissal, as well as her motion for a temporary stay. Subsequently, the Registrar filed a motion in this court seeking a stay pending this appeal, which we granted.

II. STANDARD OF REVIEW
[1] [2] [3] [4] [5] We review questions of jurisdiction, including standing, de novo.1 If the district court expressly or implicitly resolves any factual disputes in making its jurisdictional ruling, we review such findings *703 for clear error.2 We review a grant of summary judgment de novo under the same standards applied by the district court.3 Summary judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.4 We review determinations of fact in the light most favorable to the nonmoving party, and we review questions of law de novo.5 We also review the district court’s determinations of state law de novo, giving no deference to such rulings.6

1

Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir.2006).

2

See Pederson v. Louisiana State University, 213 F.3d

858, 869 (5th Cir.2000) (citation omitted).

3

Floyd v. Amite County Sch. Dist., 581 F.3d 244, 247

(5th Cir.2009).

4

Id.

5

Id.

6

Tradewinds Environmental Restoration, Inc. v. St.

Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.2009)

(citing Salve Regina Coll. v. Russell, 499 U.S. 225,

239–40, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)).

III. ANALYSIS
This case poses an issue of first impression in this circuit; only one other circuit has addressed a similar one.7 The instant dispute implicates the questions (1) whether Louisiana owes full faith and credit to the subject New York adoption decree and (2) whether full faith and credit requires Louisiana, under the plain language of its own statute and under the constitutional requirement of “evenhanded” enforcement of that judgment, to issue a Certificate for Infant J that lists both Adoptive Parents as his parents.

7

The Tenth Circuit dealt with similar facts and claims in

Finstuen v. Crutcher, 496 F.3d 1139 (2007). We

summarize it briefly. In Finstuen, three same-sex

couples challenged an amendment to Oklahoma’s

foreign adoption statute that prohibited the State from

recognizing adoptions by same-sex couples. 496 F.3d at

1142. The district court held that the amended statute

was unconstitutional because it violated the Full Faith

and Credit Clause, and the court ordered Oklahoma to

issue a revised birth certificate to one of the couples.

The Tenth Circuit affirmed on full faith and credit

grounds. Id. at 1156.

The appeals court reasoned that each State owes full

faith and credit to every other state’s judgments. Id.

at 1153. That court also noted that the forum state’s

mechanisms for the enforcement of such a judgment

are determined by the lex loci—therefore the rights

of the judgment flowed from the law of Oklahoma,

not California, the state of adoption. Id. at 1154. The

court ruled that, because the amended adoption

statute’s categorical refusal to recognize out-of-state

judgments was unconstitutional, and because

Oklahoma had a duty to recognize the California

adoption decree, the Doe plaintiffs were entitled to

whatever rights would be afforded them from the

judgment under Oklahoma law. Id. at 1154–56.

Concluding that Oklahoma’s foreign adoption

statute, sans the amendment, provided for the

issuance of a birth certificate to the Does, the Tenth

Circuit held that denial of the birth certificate would

be a violation of the “evenhanded” requirement in

applying local enforcement mechanisms to foreign

judgments and affirmed the district court’s grant of

summary judgment. Id.

The Registrar is now challenging the standing of the Plaintiffs–Appellees8 to bring this action. As standing is jurisdictional, we address that issue before addressing full faith and credit and state law.

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Adar v. Smith, 597 F.3d 697 (2010)

8

The Registrar argues throughout her briefing that the

“Appellees” lack standing to pursue this action, and she

does not differentiate between the Adoptive Parents and

Infant J for purposes of her argument. As the Adoptive

Parents bring suit both individually and as next friend

to Infant J, however, the standing of both the parents

and Infant J must be determined independently. We

construe the Registrar’s arguments on this matter as

applying with equal measure to each Plaintiff–

Appellee.

*704 A. Standing The Registrar contends that the Plaintiffs–Appellees have not satisfied Article III’s standing requirements; specifically, that the harms they allege are not sufficient injuries-in-fact. The harms alleged are (1) difficulties encountered in enrolling Infant J in Smith’s health insurance plan; (2) problems encountered with airline personnel who suspected that the Adoptive Parents were kidnappers of Infant J; and (3) denial of the “emotional satisfaction” of “seeing both of their names on the birth certificate.” In supplemental briefing, the Registrar also contends that LA.REV.STAT. ANN. § 40:76 does not grant a right to judicial relief.
The Adoptive Parents counter that the issue of standing is more properly framed as two broader questions: (1) whether the Registrar’s refusal to issue a fully compliant Certificate reflecting the entire parent-child relationship created by the New York adoption decree results in a legally cognizable injury in and of itself; and (2) whether the “barriers” imposed by the Registrar’s refusal to list both Adoptive Parents in a Certificate, as evidenced by “past difficulties,” constitutes a legally cognizable injury for purposes of standing. In supplemental briefing, the Adoptive Parents also invoke LA.REV.STAT. ANN. § 40:77 which they assert constitutes a non-discretionary mandate that the Registrar issue certified copies of Certificates to out-of-state adoptive parents of Louisianaborn children.
[6] [7] Standing is a question of justiciability that poses two questions: (1) whether the parties’ claims present a constitutional case or controversy and (2) whether federal court is the proper forum to decide this question.9 As the jurisdiction of the federal courts is limited, parties may not seek redress there unless they can show an actual case or controversy under Article III of the United States Constitution, i.e., an “injury-in-fact.”10

9

Comer v. Murphy Oil USA, 585 F.3d 855, 868 (5th

Cir.2009). See also Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1176–77 (5th Cir.1993) (“The Supreme Court has noted that [t]he term ‘standing’ subsumes a blend of constitutional requirements and prudential considerations.’ ”) (quoting Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700(1982)).

10

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112

S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations

and punctuation omitted). The Registrar does not

challenge the Plaintiffs–Appellees’ prudential standing,

and we limit our discussion to Article III’s

requirements only.

[8] There are three aspects to the constitutional requirement for standing under Article III, viz., a showing by the plaintiffs of (1) an injury-in-fact that constitutes the invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between such injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress the injury.11 The party invoking federal jurisdiction has the burden of establishing these elements.12 Article III standing may also obtain by virtue of a state or federal statutory right, the invasion of which confers standing.13

11

Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130.

12

Id. at 561, 112 S.Ct. 2130.

13

Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45

L.Ed.2d 343 (1975) (“The actual or threatened injury

required by Art. III may exist solely by virtue of

‘statute creating legal rights, the invasion of which

creates standing ...’ ”) (quoting Linda R.S. v. Richard

D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 35 L.Ed.2d

536 (1973)).

*705 The Registrar asserts that the injuries allegedly suffered by the Plaintiffs–Appellees do not rise to the level of injuries-in-fact. The Plaintiffs–Appellees disagree, pointing to the barrier of health care coverage, the impediments to travel, and the dignitary harm of an obsolete, incorrect birth certificate, as providing the requisite injury-in-fact. We need not resolve this
4

Adar v. Smith, 597 F.3d 697 (2010)

disagreement, however, because Plaintiffs–Appellees have sufficiently alleged, for the purposes of standing, that (1) LA.REV.STAT. ANN. §§ 40:76 and 40:77 mandate that the Registrar issue a Certificate and (2) they have suffered cognizable harm by Registrar’s refusal to do so.
[9] [10] The state of Louisiana recognizes a private right of action to correct public records. In State ex rel. Treadaway v. Louisiana State Bd. of Health, the Supreme Court of Louisiana approved of civil actions as the proper vehicle for requiring the State to correct birth certificates.14 Treadaway dealt with the attempt of the relator to have his deceased mother’s birth certificate altered to designate her race as “white” rather than “colored.”15 The relator sought alteration under the thencurrent statutory provision for correcting birth certificates, LA.REV.STAT. ANN. § 40:266. That statute read: “No certificate or record on file in the local registrar’s office shall be altered except upon submission of sufficient documentary or sworn evidence acceptable as the basis of the alteration.” The contemporary analog of that statute is LA.REV.STAT. ANN. § 40:59, which subjects any alteration procedure to regulations of the Department of Health and Hospitals and requires a showing by sworn and documentary proof. The current statute that governs birth certificate corrections for out-of-state adoptions is LA.REV.STAT. ANN. § 40:76, which—like the predecessor LA.REV.STAT. ANN. § 40:266, and LA.REV.STAT. ANN. § 40:59—requires that specified documentary evidence be submitted before a new Certificate will be issued, and (as discussed in more detail infra) is couched in mandatory language. Accordingly, we find apposite Treadaway’s holding that:

14

54 So.2d 343, 344 (La.App.1951) (“We think that the

public interest which is involved is paramount, and that

in such a case what is most desirable is that the record

be correct, and that whenever the attention of the Board

of Health is directed by any person at interest to the

possible incorrectness of a record and conclusive

evidence is produced, the public interest demands that

the correction be made....”). See also Messina v.

Ciaccio, 290 So.2d 339, 342 (La.App. 4th Cir.1974)

(affirming the trial court’s ordering of the Louisiana

Bureau of Vital Statistics to alter child’s birth

certificate).

15

Treadaway, 54 So.2d at 343. The fact that the relator’s

underlying motive for changing the certificate arose

from Louisiana’s then-prevailing practice of

institutionalized racial discrimination (which, by virtue

of his mother’s racial designation, saddled the relator

with legal disabilities) does not affect that case’s

pertinence to the instant action.

[S]ince the matter was brought to the attention of the Board of Health by a person who was affected by the record, the Board of Health is authorized and, in fact, required by the statute to receive such evidence as might be available and, in accordance with its own rules, to make the change if the evidence submitted is found by the court to be satisfactory.16

16

Id. at 344. Cf. Warth, 422 U.S. at 500, 95 S.Ct. 2197

(“Essentially, the standing question ... is whether the

constitutional or statutory provision on which the claim

rests properly can be understood as granting persons in

the plaintiff’ position a right to judicial relief.”)

(emphasis added).

Given the plain language of the governing statute and the Louisiana Supreme Court’s recognition of private rights of action to *706 correct the State’s public documents, we hold that Infant J has made sufficient allegations of a statutory right to an accurate birth certificate and thus has Article III standing to compel the Registrar to issue a new Certificate.
[11] This reasoning applies, by virtue of LA.REV.STAT. ANN. § 40:77,17 with equal force to the allegations of the Adoptive Parents. Therefore, we hold that, like Infant J, the Adoptive Parents have made sufficient allegations of a statutory right to provide standing to pursue their claims against the Registrar.

17

“Upon completion of the new record as provided for in

R.S. 40:76 with respect to an adopted person who was

born in Louisiana and adopted in another state, the state

registrar shall issue to the adoptive parents a certified

copy of the new record and shall place the original birth

certificate and the copy of the decree and related

documents in a sealed package and shall file the

package in its archives.” (emphasis added).

[12] [13] This is not dispositive of the question of constitutional standing by itself, however, because the law is well-settled that a statute cannot grant standing to parties whose claims do not rise to the constitutional threshold.18 When a person alleges a concrete, particularized, and individual injury by virtue of the operation of a statute, however, Article III standing to challenge that statute’s execution usually obtains.19 We therefore hold that Plaintiffs–Appellees’ allegations of injury flowing from the Registrar’s failure to comply with the statute satisfy the prerequisites of injury-in-fact for
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Adar v. Smith, 597 F.3d 697 (2010)

Article III standing purposes.20

18

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,

100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979).

19

See Lujan, 504 U.S. at 561–62, 112 S.Ct. 2130 (“When

the suit is one challenging the legality of government

action or inaction, the nature and extent of facts that

must be averred (at the summary judgment stage) or

proved (at the trial stage) in order to establish standing

depends considerably upon whether the plaintiff is

himself an object of the action (or forgone action) at

issue. If he is, there is ordinarily little question that the

action or inaction has caused him injury, and that a

judgment preventing or requiring the action will redress

it.”) (emphasis added).

20

Although not raised by any party, we also note in

passing that we and the district court have subject-

matter jurisdiction over these claims. The Plaintiffs–

Appellees’ claim is that, by refusing to give full faith

and credit to the out-of-state adoption decree, the

Registrar denies them the rights afforded by

Louisiana’s out-of-state adoption certificating statute.

This case therefore “arises under” the United States

Constitution.

B. Full Faith and Credit Turning to the substantive claims at issue, we first consider whether, under the United States Constitution, Louisiana owes full faith and credit to the New York adoption decree. The Registrar asserts several rationalizations why Louisiana does not owe full faith and credit to the decree as a constitutional matter, and she categorizes the argument based on them as an alternative to her argument that Louisiana’s out-of-state adoption statute does not, by its plain meaning, require her to issue a new Certificate. As we need consider LA.REV.STAT. ANN. § 40:76 only if Louisiana owes full faith and credit to the New York decree,21 we first address full faith and credit.

21

That is, if Louisiana does not owe full faith and credit,

then presumably LA.REV.STAT. ANN. § 40:76 would

not apply because the New York adoption decree likely

would not be a proper “final decree of adoption” that

Louisiana would have to recognize.

1. The Full Faith and Credit Clause
The Full Faith and Credit Clause of the United States Constitution reads:
*707 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.22

22

U.S. Const. art IV, § 1.

Congress enacted implementing legislation for the Clause in 179023 and has amended that legislation only once, in 1948.24 The Supreme Court first interpreted the Clause in Mills v. Duryee to require that an out-of-state judgment be given the same effect in the several states as it would be given in the adjudicating state.25 Such expansive full faith and credit was later held not to be owed to a statute enacted in another state, however, when the forum state is competent to legislate on the matter.26

23

1 Cong. Ch. 11, May 26, 1790, ch. 11, 1 Stat. 122.

(“That the acts of the legislatures of the several states

shall be authenticated by having the seal of their

respective states affixed thereto: That the records and

judicial proceedings of the courts of any state, shall be

proved or admitted in any other court within the United

States, by the attestation of the clerk, and the seal of the

court annexed, if there be a seal, together with a

certificate of the judge, chief justice, or presiding

magistrate, as the case may be, that the said attestation

is in due form. And the said records and judicial

proceedings authenticated as aforesaid, shall have such

faith and credit given to them in every court within the

United States, as they have by law or usage in the

courts of the state from whence the said records are or

shall be taken.”).

24

28 U.S.C. § 1738. In the 1948 revision of the Judicial

Code, the wording of the first implementing statute was

amended to include state statutes within the command

of the implementing statute:

The Acts of the legislature of any State, Territory,

or Possession of the United States, or copies

thereof, shall be authenticated by affixing the seal

of such State, Territory or Possession thereto.

....

Such Acts, records and judicial proceedings or

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Adar v. Smith, 597 F.3d 697 (2010)

copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

25

11 U.S. (7 Cranch) 481, 485, 3 L.Ed. 411 (1813).

26

Franchise Tax Bd. of California v. Hyatt, 538 U.S. 488,

494, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003) (“As we

have explained, ‘[o]ur precedent differentiates the

credit owed to laws (legislative measures and common

law) and to judgments.’ Baker v. General Motors

Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d

580 (1998). Whereas the full faith and credit command

‘is exacting’ with respect to ‘[a] final judgment ...

rendered by a court with adjudicatory authority over the

subject matter and persons governed by the judgment,’

id., at 233, 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d

580, it is less demanding with respect to choice of laws.

We have held that the Full Faith and Credit Clause does

not compel ‘ “a state to substitute the statutes of other

states for its own statutes dealing with a subject matter

concerning which it is competent to legislate.” ’ ”)

(citing Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108

S.Ct. 2117, 100 L.Ed.2d 743 (1988)) (quoting Pacific

Employers Ins. Co. v. Industrial Accident Comm’n, 306

U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939)).

[14] The Supreme Court’s most recent full faith and credit decision dealing with judgments, Baker ex rel. Thomas v. General Motors Corp.,27 both reiterates that full faith and credit is owed to out-of-state judgments28 and explains the “exacting”29 nature of this duty. Important to the instant appeal, the Court in Baker emphasized that there are no “roving public policy *708 exceptions” to the Clause;30 that is, the forum state may not refuse to recognize31 an out-of-state judgment on the grounds that the judgment would not obtain in the forum state.32 Although the duty of recognition that is owed is “exacting,” however, it is not absolute. For example, even though the forum state may not refuse to enforce the judgment of the adjudicating state, the forum state is not required to substitute the adjudicating state’s provisions for the enforcement of judgments for their own.33 The substantive issues adjudicated in that state are afforded full faith and credit; within particular bounds, the provisions for enforcing that judgment are determined by the law of the forum state.

27

522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998).

28

Id. at 233–35, 118 S.Ct. 657.

29

Id. at 233, 118 S.Ct. 657.

30

Id.

31

Although it may be possible to collaterally attack a

judgment as invalid in the forum state, e.g., when the

sister state lacked jurisdiction to effect the order, the

validity of the instant New York order is not at issue.

The Registrar conceded that the adoption order is a

valid and true judgment under New York law.

32

Milwaukee County v. M.E. White Co., 296 U.S. 268,

277, 56 S.Ct. 229, 80 L.Ed. 220 (1935) (“In numerous

cases this court has held that credit must be given to the

judgment of another state although the forum would not

be required to entertain the suit on which the judgment

was founded....”).

33

Baker, 522 U.S. at 234, 118 S.Ct. 657 (“Full faith and

credit, however, does not mean that States must adopt

the practices of other States regarding the time, manner,

and mechanisms for enforcing judgments. Enforcement

measures do not travel with the sister state judgment as

preclusive effects do; such measures remain subject to

the even-handed control of the forum law.”) (citing

McElmoyle ex rel. Bailey v. Cohen, 13 Peters 312, 325,

10 L.Ed. 177 (1839)).

2. Application
[15] As a threshold matter, there is virtually universal acknowledgment that Louisiana owes full faith and credit to the New York adoption decree and must recognize that the Adoptive Parents are Infant J’s legal parents. Numerous authorities hold that a state must afford out-ofstate adoption decrees full faith and credit.34 The parental rights and status of the Adoptive Parents, as adjudicated by the New York court, are not confined within that
7

Adar v. Smith, 597 F.3d 697 (2010)

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. In the face of this wellestablished legal principle, however, the Registrar tenaciously insists that there are exceptions to the application of the Clause that allow Louisiana to refuse to give full faith and credit to the instant adoption decree. The Registrar contends first that the “preclusive effects of an out-of-state judgment do not compel another State to alter its public records.” She asserts further that adoption decrees are “fundamentally different judgments” from those that must be given “categorical effect” under the Clause, because, unlike typical “money judgements,” adoption decrees “create new status, forge on-going family relationships, are typically the product of nonadversarial proceeding[s], and may subvert a State’s core domestic policies.” *709 Finally, the Registrar echoes her first contention by advancing that the Clause does not support extending the effects of an adoption decree to control the public records of another state. We consider each of these contentions in turn.

34

See, e.g., Hood v. McGehee, 237 U.S. 611, 615, 35

S.Ct. 718, 59 L.Ed. 1144 (1915) (“There is no failure to

give full credit to the adoption of plaintiffs, in a

provision denying them the right to inherit land in

another State. Alabama is sole mistress of the

devolution of Alabama land by descent.”) See also

Finstuen, 496 F.3d at 1156 (collecting authorities from

Oklahoma, Montana, North Carolina, Pennsylvania,

Florida, Illinois, Massachusetts, New Mexico, and

California that all hold adoption judgments are owed

full faith and credit). See also the position of the

Restatement (First) Conflict of Laws, § 143. Most

pertinently, Louisiana itself acknowledges that out-of-

state adoptions are to be afforded full faith and credit.

Alexander v. Gray, 181 So. 639, 645 (La.App. 2d

Cir.1938).

a. An Out-of-state Adoption Decree has only Preclusive Effect on Future Litigation
The Registrar’s first contention is in reality an argument that the Clause’s reach is coextensive with that of the traditional principle of res judicata and therefore does not constrain a forum state’s actions beyond such strictures. By way of example, the Registrar offers that an adjudicating state’s divorce decree would preclude the forum state from re-litigating the matters decided in that divorce, but would not mandate that the forum state alter its public records to reflect that judgment. From this premise, the Registrar propounds the argument that full

faith and credit, being no greater than res judicata, does not require the Registrar to “alter Louisiana’s vital records [in a manner] contrary to Louisiana’s substantive family law.” The Registrar takes this argument further by noting (correctly) that full faith and credit does not require a state to substitute its own statutes for those of another state. Therefore, she continues, because “categorical” recognition of the New York judgment (as opposed to giving it mere res judicata effect) would be tantamount to exporting New York’s public policy determination about who may adopt in Louisiana, requiring Louisiana to accept the New York judgment would be no different than requiring Louisiana to substitute a New York statute for one of its own. Consistent with her argument that full faith and credit is nothing greater than res judicata, the Registrar also contends that, because Louisiana was not party to the New York proceedings (“adjudicating her duty to register the New York adoption decree”), Louisiana is not required “to obey New York law”; that Louisiana’s processing of vital statistics is “collateral” to “the decree’s res judicata effects.”
[16] [17] These arguments fail for a number of reasons. First and foremost, full faith and credit is not merely a redundant reiteration of res judicata. At its core, the common law doctrine of res judicata is concerned with respecting the finality of litigation.35 In contrast, even though the Clause does promote this laudatory end,36 its primary purpose is to serve the modus vivendi of federalism by harmonizing the competing sovereign interests of the several states.37 A crucial difference between res judicata and the Clause is that res judicata is the voluntary restraint by a forum state from exercising its power *710 so as to respect the judgment of another state. Indeed, as to judgments, a forum state may and sometimes does choose to re-litigate issues as it sees fit.38 In contrast, the Clause is a mandatory, constitutional curb on every state’s sovereign power. With respect to judgments (although not to statutes), a state as a rule has no discretion to disregard a decision of another state on a matter over which that other state is competent to exercise jurisdiction.39

35

47 AM.JUR.2D JUDGMENTS § 465 (“[T]he doctrine

of res judicata is a manifestation of the recognition that

endless litigation leads to confusion or chaos. It reflects

the refusal of the law to tolerate a multiplicity of, or

needless, litigation to the harassment and vexation of a

party opponent.”) Additionally, res judicata is a

doctrine based on the equitable tradition of estoppel.

See 47 AM.JUR.2D JUDGMENTS § 466.

36

See Baker, 522 U.S. at 235, 118 S.Ct. 657 (noting that

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Adar v. Smith, 597 F.3d 697 (2010)

full faith and credit has a “preclusive” effect on litigation in forum states).

37

Milwaukee County, 296 U.S. at 276–77, 56 S.Ct. 229

(“The very purpose of the full-faith and credit clause

was to alter the status of the several states as

independent foreign sovereignties, each free to ignore

obligations created under the laws or by the judicial

proceedings of the others, and to make them integral

parts of a single nation throughout which a remedy

upon a just obligation might be demanded as of right,

irrespective of the state of its origin.”). See also

generally Stewart E. Sterk, The Muddy Boundaries

Between Res Judicata and Full Faith and Credit, 58

WASH. & LEE L.REV. 47 (2001).

38

See, e.g., Amerson v. La. Dep’t of Transp. & Dev., 570

So.2d 51, 54 (La.App. 5th Cir.1990) (discussing some

judicially created exceptions to the bar of res judicata).

39

See Magnolia Petroleum Co. v. Hunt, 320 U.S. 430,

438, 64 S.Ct. 208, 88 L.Ed. 149 (1943) (“We are aware

of no ... considerations of local policy or law which

could rightly be deemed to impair the force and effect

which the full faith and credit clause and the Act of

Congress require to be given to ... a judgment outside

the state of its rendition.”).

There are limited exceptions to the mandate of the

Full Faith and Credit Clause that look behind the

judgment to original court proceedings—such as

attacking the validity of the judgment under the

forum state’s law—which are inapplicable here and

are not advanced by the Registrar.

[18] The Registrar’s second argument, that the New York adoption decree is a judgment cum statute to which Louisiana does not owe full faith and credit, is a leap too far. Although she is correct that, under the Clause, a statute is not owed the same exacting obeisance as is a judgment, the Registrar cites no authority for the proposition that some kinds of judgments may be treated as statutes for purposes of full faith and credit analyses. She appears to be arguing that, because the New York court’s adoption decree embodies both the public policy of New York and New York’s adoption statutes (as interpreted by New York courts), the decree may be ignored by Louisiana as an attempt to substitute New York’s statute for Louisiana’s. But, if credited, this shallow, circular attempt to conflate “judgment” and “statute” would swallow the Clause’s curb on the states.40 If the Registrar’s argument were correct, its natural

conclusion would be that only those judgments that are rendered on purely common law grounds—unadulterated by any statutory nexus, effect, or derogation—would have to be afforded protection under the Clause. Under this reasoning, to the extent that a judgment incorporates the statutory—and repugnant—public policy of the adjudicating state, a forum state would be free to ignore the adjudicating state’s judgment as an improper substitution for the forum state’s statute. Such a reading, for the purpose of interstitially importing such an illicit “public policy exception” to the reach of the Clause, is utterly contradicted by precedential full faith and credit jurisprudence.

40

See also Finstuen, 496 F.3d at 1153 (discrediting a

similar argument).

[19] [20] We acknowledge, as the Registrar observes, that an out-of-state judgment may not force the forum state to “accomplish an official act within its exclusive province.”41 But, this exception refers to judgments that themselves purport to compel action by (not in) another state.42 Even though the Clause may not serve as a puppeteer to empower an adjudicating state to govern a forum state by judicial decree, that is not occurring here. The *711 New York court has not ordered Louisiana, or any other state, to do or refrain from doing anything. It has merely adjudicated a parent-child relationship between the Adoptive Parents and Infant J. Thus, the question here is not what has a New York decree purported to compel Louisiana to do or not to do; rather, the question here is what respect does Louisiana owe to New York’s adoption decree. The obvious answer is that Louisiana owes “exacting” full faith and credit to the New York adoption decree.43

41

Baker, 522 U.S. at 235, 118 S.Ct. 657.

42

Id. (noting that the Court has struck down decrees by

one state that purported to transfer title between parties

in another state, even though the judgment was

preclusive on the parties themselves) (citing Fall v.

Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909)). See

also Finstuen, 496 F.3d at 1154.

43

The Registrar’s argument that Louisiana is not bound

because it was not party to the adoption decree is even

more specious. The Supreme Court has made

abundantly clear that non-parties may be bound by

judgments under the Clause. See, e.g., Johnson v.

9

Adar v. Smith, 597 F.3d 697 (2010)
Muelberger, 340 U.S. 581, 588–89, 71 S.Ct. 474, 95 L.Ed. 552 (1951) (holding that, under the Clause, a daughter may not challenge the validity of her deceased father’s Florida divorce on jurisdictional grounds in New York court when Florida law would not allows such an attack). It is true that the Supreme Court held, in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948), that a judgment rendered in another state would only be enforced if the other state had personal jurisdiction over the parties to the judgment. As the Tenth Circuit noted when dismissing an argument similar to the Registrar’s, however, Estin only applies when one attempts to enforce a judgment against a non-party. See Finstuen, 496 F.3d at 1155. Here, as in Finstuen, the Plaintiffs–Appellees are only seeking to be afforded the rights under Louisiana law to which the judgment entitles them. The New York judgment is not, for example, a damage award or injunction against Louisiana or the Registrar.
b. Adoptions Decrees are Fundamentally Different from Those Judgments that Must Be Given Categorical Effect
under the Full Faith and Credit Clause.
Arguments like those of the Registrar—that adoption decrees are fundamentally different kinds of judgments and are not owed full faith and credit—have either been rejected by those courts that have considered them or simply reflect a fundamental misapprehension of the law and the Constitution. First, as already noted, multiple authorities—including Louisiana—have demonstrated virtually universal agreement that adoption decrees are judgments for purposes of full faith and credit.44 Furthermore, although the Supreme Court itself has not addressed this precise issue, it has held that other types of domestic-law judgements are to be afforded full faith and credit. For example, the very case on which the Registrar would rely for her argument, New York ex rel. Halvey v. Halvey,45 recognized that the results of custody proceedings are owed full faith and credit. In Halvey, the Court considered a mother’s attempt to have a New York court enforce her Florida-adjudicated child-custody determination. The New York state court had given effect to the determination, but had modified its terms. After the mother challenged this modification under the Clause, the Supreme Court held that (1) New York may alter the custody decree because under Florida law, such decrees are modifiable by a Florida court, but (2) New York could do so only to the same extent as could a Florida court.46 In reaching this result, the Court reiterated the general principle that out-of-state judgments are due full faith and credit, stating “[t]he general rule is that this command [the

Full Faith and Credit Clause] requires the judgment of a sister State to be given full, not partial, *712 credit in the State of the forum.”47

44

See supra note 34.

45

330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). The

Registrar’s specific citation of authority is to Justice

Frankfurter’s concurrence.

46

Id. at 614–15, 67 S.Ct. 903.

47

Id. (citing Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83

L.Ed. 26 (1938); Williams v. State of North Carolina,

317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942)).

[21] The Registrar’s claim that adoptions fall within a “category” of judgments that are not owed full faith and credit is likewise unavailing. The dichotomy she purports to identify would describe judgments as either prospective or retrospective, with retrospective judgments being owed full faith and credit but prospective judgments not being owed such respect by forum states. According to this contention by the Registrar, the Clause would apply to such retrospective judgments as money judgments, but not to prospective judgments (to which subset she would assign adoption decrees). This assertion echoes the argument dismissed by the Supreme Court in Baker that there is some per se difference under the Clause between money judgments and equitable judgments. The Baker Court held unequivocally that both kinds of judgments are afforded full faith and credit under the Constitution.48

48

522 U.S. at 234, 118 S.Ct. 657.

The Registrar cites no authority for her proposed prospective-retrospective dichotomy of judgments. Instead, she confuses the broad full faith and credit obligation owed by a forum state to out-of-state judgments with the tightly restricted obligation of the forum state to respect an out-of-state court’s ability to determine post-judgment activity in the forum state.49 This distinction was articulated most recently in Baker, when the Court noted that, although respect for judgments is exacting, the Clause does not require one state “to adopt the practices of other States regarding the time, place,
10

Adar v. Smith, 597 F.3d 697 (2010)

manner, and mechanisms for enforcing judgments.”50

49

See generally Sterk, supra note 37, for a discussion of

this dichotomy.

50

Baker, 522 U.S. at 235, 118 S.Ct. 657.

The Registrar would support her distinction by a negative analogy, seeking to show that, unlike money judgments or divorces, which are “final,” an adoption judgment “concern[s] the new and ongoing parent-child status created in the originating State.” This description of the nature of an adoption is misleading, however: Like divorce decrees between spouses, adoption decrees seek to make legally final the relationship between the adoptive parents and the adopted child.51 The parent-child status is no more “ongoing” or less final than any other legally determined domestic relationship. That is, the adoption decree creates a legal relationship that remains in effect until and unless it is subsequently changed by legal processes. No one questions that adoptive parents may lose or surrender their parental rights through judicial action just as spouses may divorce and later remarry each other; but this truism does not in any way mitigate the obligation of one state to give full faith and credit to the status judgments of other states.52

51

See, e.g., Matter of Male Infant D., 137 Misc.2d 1016,

1019 523 N.Y.S.2d 369 (New York Family Ct.1987).

(“Since certainty and finality in an adoption proceeding

are highly desirable, both from the point of view of the

child, who has a substantial interest in a secure home,

and from the point of view of the adoptive parents,

whose bonding with the child should be unimpeded by

fears of possible loss of the child, it is of great

importance that an adoption be final when completed

and not subject to future attack or controversy.”)

52

Likewise, the Registrar’s argument that adoptions are

not “judgments” because they are not the product of

adversarial proceedings is wholly without merit. See

supra note 34 and accompanying text.

*713 The Registrar concludes her argument on this point with the statement that “categorically enforcing sisterstate adoption decrees will inevitably undermine core social policies of the second State in a way that simple money judgments or even divorce decrees do not.” To the extent that this assertion is meant to cast doubt on whether

Louisiana must give full faith and credit to the subject New York adoption decree, the Supreme Court has made pellucid that there is no “roving public policy exception” to the Full Faith and Credit Clause.53 Again, the specific question here is not whether Louisiana may refuse to recognize the New York adoption (which it clearly may not), but whether that recognition requires it to issue a Certificate under the terms of its own statute. Whether the New York adoption contravenes Louisiana’s “public policy” is simply irrelevant and immaterial. Put another way, the new Certificate merely records the action done by the New York court and expresses nothing about what Louisiana would or would not do in matters of its solely domestic concern.

53

Baker, 522 U.S. at 233, 118 S.Ct. 657.

c. The Clause Does Not Support Extending the Effects of an Adoption Decree to Control the Public Records of
Another State.
The Registrar’s argument here is that the Clause does not “command[ ] complete recognition of a sister-state adoption in another State’s public records.” This is nothing more than a rehash of her earlier argument that adoptions are not a specie of judgment that is owed universal recognition under the Clause. It is equally unavailing.
C. LA.REV.STAT. ANN. § 40:76. Having determined that Louisiana owes full faith and credit to the instant New York adoption decree, we turn to the Registrar’s arguments concerning Louisiana’s duty vel non to give effect to that decree. She contends that Louisiana’s out-of-state adoption birth certificate statute is an “enforcement mechanism,” and therefore, even if Louisiana owes full faith and credit to the New York adoption decree, is not required to enforce the decree by issuing a Certificate to Infant J. Alternatively, the Registrar urges us to certify the question of § 40:76’s application to the Supreme Court of Louisiana. We address certification before addressing the Registrar’s proffered interpretation of the State’s statute.
1. Certification of the Question of Interpretation of §
11

Adar v. Smith, 597 F.3d 697 (2010)
40:76 to the Louisiana Supreme Court.
[22] Rule 12 of the Louisiana Supreme Court authorizes us to certify questions of state law to that court. The Registrar urges us to certify the “proper construction” of § 40:76 to the Louisiana Supreme Court. She offers as support for this request that (1) the state law is unsettled on this question; (2) a definitive interpretation would “impact the constitutional question”; and (3) the “the state law implicates sensitive family-law and interstate comity issues.” Because we hold that the statute’s meaning is clear and unambiguous, we decline the Registrar’s request for certification under Rule 12.

2. Section 40:76 is an Enforcement Mechanism for Purposes Full Faith and Credit.
The Registrar does not point to any direct authority for her bald assertion that a statute such as § 40:76 is a “time [and] manner ... mechanism[ ] for enforcing *714 judgments.”54 The Plaintiffs–Appellees counter not only that the statute is not an enforcement mechanism, but that it would be immaterial if that were not clear because, even if the statute were an “enforcement mechanism,” under Baker, the Registrar has failed to enforce the statute in an “evenhanded” manner.

54

Baker, 522 U.S. at 235, 118 S.Ct. 657.

[23] We are at least doubtful that the adoption statute is an “enforcement mechanism.” But even if we assume arguendo that it is such a mechanism, the Registrar cannot prevail. If the plain language of Louisiana’s own statute requires that a new, corrected birth certificate be issued to Louisiana-born adopted minors and their adoptive parents55 (as it clearly does), that requirement must be applied in an “evenhanded” manner.56 The pertinent question thus turns on the language of Louisiana’s statute.

55

See Finstuen, 496 F.3d at 1154 (noting that, even

though a California judgment is owed full faith and

credit by Oklahoma, “[w]hatever rights may be

afforded [by virtue of the judgment] flow from an

application of Oklahoma law, not California”). See also

McElmoyle ex rel. Bailey v. Cohen, 13 Peters 312, 325,

10 L.Ed. 177 (1839) (holding judgment may only be

enforced as laws of enforcing forum permit).

56

Baker, 522 U.S. at 224, 118 S.Ct. 657.

3. Interpreting LA.REV.STAT. ANN. § 40:76. Neither the parties’s citations nor our research reveals that any other court, state or federal, has interpreted § 40:76. Proceeding on a blank slate, therefore, we must look to analogous decisions of Louisiana’s courts for guidance in construing its statutes: When we interpret state law, we are “bound to apply the law as the state’s highest court would.”57 With regard to judicial interpretation of state statutes, the Louisiana Supreme Court has held:

57

FDIC v. Abraham, 137 F.3d 264, 267–68 (5th

Cir.1998) (citations omitted).

As a general rule, “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters’ [in which case] the intention of the drafters, rather than the strict language controls.”58

58

State v. Ste. Marie, 723 So.2d 407, 409 (La.1998)

(quoting United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235, 243, 109 S.Ct. 1026, 103 L.Ed.2d 290

(1989) (internal citation omitted)).

Furthermore: While it is true that the Civil Code directs that laws on the same subject matter should be construed with reference to one another, it is also true that it is only when one statute is unclear that another on the same subject should be called in aid to explain it. Otherwise, where there is no ambiguity, the words of a statute are to be read in their most usual significance, that is, according to their general and popular use.59

59

Crescionne v. Louisiana State Police Retirement Bd.,

455 So.2d 1362, 1363 (La.1984) (citing LA. CIVIL

CODE art. 17 which was amended in 1987 to be

reassigned as LA. CIVIL CODE ANN. art. 13).

With these general principles in mind, we examine the 12

Adar v. Smith, 597 F.3d 697 (2010)
text of the subject statute itself. LA.REV.STAT. ANN. § 40:76 reads:
A. When a person born in Louisiana is adopted in a court of proper jurisdiction in any other state or territory of the United States, the state registrar may create a new record of birth in the archives upon presentation of a properly certified copy of the final decree of adoption or, if the case has been closed *715 and the adoption decree has been sealed, upon the receipt of a certified statement from the record custodian attesting to the adoption decree.
B. The decree is considered properly certified when attested by the clerk of court in which it was rendered with the seal of the court annexed, if there is a court seal, together with a certificate of the presiding judge, chancellor, or magistrate to the effect that the attestation is in due form. The certified statement is considered proper when sworn to and having the seal of the foreign state or territory’s record custodian.
C. Upon receipt of the certified copy of the decree, the state registrar shall make a new record in its archives, showing:
(1) The date and place of birth of the person adopted.
(2) The new name of the person adopted, if the name has been changed by the decree of adoption; and
(3) The names of the adoptive parents and any other data about them that is available and adds to the completeness of the certificate of the adopted child.
The district court interpreted the plain language of § 40:76(C) to mandate that the Registrar issue a Certificate for Infant J that identifies both Adoptive Parents. The Registrar takes issue with the district court’s interpretation for two reasons. First, she asserts that § 40:76(A) vests her with the discretion to decide whether to issue a new birth certificate (“the state registrar may create a new record of birth in the archives ....”), and that § 40:76(C)’s mandatory language (“Upon receipt of the certified copy of the decree, the state registrar shall make a new record ...”) applies only to the contents of the new certificate. This reading, she argues, renders her decision whether to issue a new Certificate wholly discretionary and not subject to challenge. The Registrar further contends that the phrase “adoptive parents” should be construed in pari materia with those provisions of the Louisiana Civil Code that prohibit adoptions within the state by unmarried couples. The Registrar does not offer, and our research does not reveal, any place where the phrase “adoptive parents” is expressly defined in the

Louisiana Civil Code, the State’s statutes, or the case law.
The crux of the Registrar’s first argument is that each word in the statute must be given effect;60 accordingly, giving effect to this permissive language in § 40:76(A) renders the entire statute discretionary as to whether a Certificate is issued. Thus, according to the Registrar, (1) § 40:76(A) affords her broad discretion in deciding whether to issue a Certificate on the basis of an out-ofstate adoption; (2) § 40:76(B) establishes the authentication requirements for an out-of-state decree; and (3) § 40:76(C) mandates only the contents of the Certificate, when and if the Registrar should choose to issue one.

60

See Burmaster v. Plaquemines Parish Gov’t, 982 So.2d

795, 804 (La.2008) (“[E]very word in a statute must be

given meaning, if possible, and no word, clause, phrase

or sentence of a statute shall be deemed meaningless or

surplusage if a construction can be legitimately found

that will give force to and preserve every word of the

statute.”).

[24] [25] Dealing as we are with a statutory grant of ministerial authority, we look to Louisiana precedent on this matter as a guide for our interpretation. Under the State’s constitution, a statutory grant of ministerial authority must comport with that document’s separationof-powers clause, which prohibits “[unconstitutional] delegation” of authority by the legislative *716 branch of state government to another branch.61 Delegation of authority by the legislature to the executive branch must not be so broad as to impinge the mandatory separation of powers.62 In considering this issue, Louisiana courts have traditionally distinguished between two types governmental authority: (1) ministerial or administrative authority, which may be delegated; and (2) purely legislative authority, which may not be delegated.63 As for the former, Louisiana’s highest court has observed that:

61

State v. All Pro Paint & Body Shop, Inc., 639 So.2d

707, 711 (citing LA. STAT. ANN. art. II § 2).

62

Id.

63

Id.

the complexity of our social and industrial activities ... 13

Adar v. Smith, 597 F.3d 697 (2010)

[have lead the court’s] decisions to hold as nonlegislative the authority conferred upon boards and commissions.... [T]he Legislature may make the operation or application of a statute contingent upon the existence of certain conditions, and may delegate ... the power to determine the existence of such facts and carry out the terms of the statute. So long as the regulation or action ... does not determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature.64

64

Schwegmann Brothers Giant Super Markets v.

McCrory, 237 La. 768, 112 So.2d 606, 613 (1959)

(footnotes omitted).

As for the delegation of legislative authority, that court has stated:
When the delegated authority is unfettered ..., its exercise becomes legislative, not administrative, in nature, and contravenes the mandate of Article 2, Section 2 of the Louisiana Constitution.65

65

State v. Taylor, 479 So.2d 339, 343 (La.1985)

(emphasis added).

[26] [27] The Supreme Court of Louisiana has fashioned a

three-pronged test for determining whether a statute

unconstitutionally delegates legislative authority:

Delegation of authority to an

administrative

agency

is

constitutionally valid if the

enabling statute (1) contains a clear

expression of legislative policy, (2)

prescribes sufficient standards to

guide the agency in the execution

of that policy, and (3) is

accompanied by adequate

procedural safeguards to protect

against abuse of discretion by the

agency.66

66

All Pro Paint & Body, 639 So.2d at 711.

Whenever possible, a court should avoid interpreting a statute in a way that renders it unconstitutional.67 If the Registrar’s interpretation of § 40:76 would render it

unconstitutional under the All Pro Paint & Body test, then it should be rejected in favor of a more constrained construction, assuming one is available.

67

Crown Beverage Co. v. Dixie Brewing Co., 695 So.2d

1090, 1093 (La.App. 4th Cir.1997) (“If a statute can be

interpreted in either of two ways, one of which raises a

serious question of the statute’s constitutionality and

one of which does not, then the court should favor the

interpretation which avoids the constitutional

question.”) (citing Norman Singer, SUTHERLAND’S

STATUTORY CONSTRUCTION § 45.11 (5th ed.

1992 rev.)).

The Registrar’s interpretation fails at least prongs two and three of the All Pro Paint & Body test. First, even if the Registrar were correct that the permissive “may” in § 40:76(A) allows her unfettered discretion to issue or not to issue a birth certificate, there is still no accompanying legislative guide to implementing the legislative *717 policy (assuming there is one) in furtherance of this grant of discretion. Under the Registrar’s own argument it would be within her sole decision whether to issue a birth certificate: No standards for making that decision, outside of mere whimsy, are to be found in the statute.68 By the same token, this absence of any guiding policy is linked to the absence of any procedural safeguards. Because, under the Registrar’s interpretation, she would have the unlimited discretion to issue (or to decline to issue) birth certificates for out-of-state adoptions, she in her discretion may simply choose not to issue a birth certificate for a Louisiana-born child to a married couple who could legally adopt in Louisiana. Her proffered reading of the statute would thus afford such a couple no safeguard in their access to a new, corrected birth certificate. The Legislature’s intent in enacting § 40:76, at a minimum, is surely not to allow the Registrar—for any reason or for no reason at all—to deny birth certificates to out-of-state adopters who could have adopted the Louisiana-born child under Louisiana law. The statute’s plain language suggests no such legislative intent.

68

The Registrar has in fact described how the application

of such unguided discretion might look. In her

deposition, the Registrar noted that it has been her

policy, when previously faced with a request for a birth

certificate for an out-of-state adoption by persons

unable to legally adopt in Louisiana, to issue the

certificate with only one parent’s name. Yet, she cites

no statutory authority for this practice other than

Louisiana’s in-state adoption provisions. Certainly

nothing in § 40:76 authorizes this practice or indicates

that it furthers the legislature’s policy with regard to

out-of-state adoptions.

14

Adar v. Smith, 597 F.3d 697 (2010)

In the framework of All Pro Paint & Body, we do not find the Registrar’s excessively broad interpretation of § 40:76 to be persuasive or reasonable. Under the Registrar’s interpretation, she would enjoy absolute discretion in issuing or denying birth certificates for out-of-state adoptions, without any legislative guidance or limitation whatsoever. Furthermore, there is some authority which holds that when a statute directs a public official to perform some act, the otherwise permissive auxiliary “may” is in fact read as mandatory, if to deem it discretionary would thwart the act’s very purpose.69

69

See Sanders v. Department of Health & Human

Resources, 388 So.2d 768, 770 (La.1980) (“If a

requirement is so essential to the statutory plan that the

legislative intent would be frustrated by non-

compliance, then it is mandatory.”). See also Norman

Singer,

SUTHERLAND’S

STATUTORY

CONSTRUCTION § 57.14 (5th ed. 1992 rev.) (“Courts

have also stated that where the intent of the legislature

was to impose a duty on a public officer rather than a

discretionary power, even the word ‘may’ has been

held to be mandatory.”). But see Bannister v.

Department of Streets, 666 So.2d 641, 646 (La.1996)

(“[P]rovisions designed to secure order, system, and

dispatch in proceedings by guiding the discharge of a

governmental official’s duties are usually construed as

directory even if worded in the imperative, especially

when the alternative is harshness or absurdity.”).

We need not go so far as to hold that the language in § 40:76(A) is mandatory, however, because a facially reasonable reading of that statute would restrict the applicability of the “may” in that section to that section only, limiting the Registrar’s discretion to issue a birth certificate for an out-of-state adoption to the determination whether the out-of-state decree is “properly certified,” or, in the case of sealed records (as is the case here), on receipt of a certified statement. This more circumspect reading affords the Registrar the discretion of the permissive language in the exercise of her ministerial function, i.e., in determining the validity and sufficiency of the certification furnished, without granting her the plenary and arbitrary *718 power to decide which Louisiana-born children will receive Certificates and which will not.
[28] We hold that the correct interpretation of § 40:76(A) is that its use of “may” affords the Registrar the limited discretion of determining whether the certification furnished by the applicants is satisfactory. The discretion afforded her is that she need issue a certificate only when

she is satisfied that the certification is satisfactory, a decision that is guided in turn by § 40:76(B)’s list of the required contents of such certification. Finally, if the decree’s certification is proper, then § 40:76(C) mandates that the Registrar issue a new, corrected birth certificate. This interpretation avoids the Registrar’s manifestly strained and unconstitutional attempt to go beyond the plain language of the statute.
In her second statutory-interpretation argument, the Registrar notes that construing § 40:76(C) as requiring her to issue a birth certificate that lists both adoptive parents whenever, under § 40:76(A), she determines that the proffered certification satisfies § 40:76(B), is a reading improperly isolated from the rest of Louisiana’s substantive law, specifically articles 1198, 1221, and 1243 of the Louisiana Children’s Code, which authorize joint adoptions by married couples only, and article 3520(B) of the Louisiana Civil Code, which limits state recognition to married heterosexual persons only.70 Thus, according to the Registrar’s interpretation, because (1) the Adoptive Parents are an unmarried, same-sex couple, and (2) adoption provisions other than § 40:76 would deny them the right to adopt in Louisiana, § 40:76 should likewise require such a prohibition for out-of-state adoptions by referential implication.

70

LA. CIV.CODE ANN. art. 3520(B) (“A purported

marriage between persons of the same sex violates a

strong public policy of the state of Louisiana and such a

marriage contracted in another state shall not be

recognized in this state for any purpose, including the

assertion of any right or claim as a result of the

purported marriage.”).

The Registrar relies on Article 13 of the Louisiana Civil Code, which directs that statutes are to be construed with reference to one another. Assuming arguendo (and not without serious doubts as to its validity) that the statutory provisions which the Registrar cites are relevant or salient to the meaning of “adoptive parents,” the Registrar’s reasoning nevertheless fails to account for the strictures established by the Supreme Court of Louisiana when interpreting the Civil Code’s Article 13. The court held in Crescionne that other statutes are to be consulted “only when one statute is unclear.”71 In essence, the Registrar’s entire argument rests on construing the term “adoptive parents” not to include “same-sex couples” for purposes § 40:76 because an in-state adoption can be effected only by married, heterosexual couples. Nowhere does she argue, however, that the term “adoptive parents” is ambiguous or unclear.

15

Adar v. Smith, 597 F.3d 697 (2010)

71

455 So.2d at 1363 (emphasis added). The court in

Crescionne considered Article 17, which was later re-

codified as present Article 13. The reassignment “did

not change the law.” See Revision Comments.

The court’s decision in Crescionne is instructive here. In that case, the parties disagreed about the meaning of the phrase “surviving spouse” in a particular state statute. The court reasoned that:
The ordinary meaning of the word “spouse” is one’s husband or wife, and marriage is dissolved only by death, divorce, judicial decree of nullity, or the contracting of another marriage on account *719 of absence when authorized by law. Had the legislature intended that a use of the term other than the one usually and generally understood, it could have given the words “surviving spouse” a legal definition....
.... Since there is no special statutory definition of the term “surviving spouse,” we hold that it must be given its ordinary, commonly understood meaning....72

72

Crescionne, 455 So.2d at 1364.

[29] [30] Like “surviving spouse,” the term “adoptive parents” is nowhere defined in the statute, or elsewhere in the codes or the case law of Louisiana. When we parse the term for its plain meaning, we find that a common dictionary definition of “parent” is “father or mother,”73 and that the meaning of “adoptive” is “of or involving adoption ... acquired or related by adoption.”74 Thus, when effect is given to the ordinary meaning of the words of the statute, the plain meaning of “adoptive parents” is a “father or mother who adopts a child.” It is obvious to us that this construction is the ordinary, commonly understood one. As the meaning of “adoptive parent” is clear and unambiguous, our inquiry is over; we need not consult other statutes for interpretive guidance.75 Neither shall we overstep our mandate by importing the strained and attenuated reading that the Registrar urges by reference to other statutory provisions of at best uncertain applicability. The New York adoption decree constitutes both Adar and Smith as a “father” “related by adoption” to Infant J. Accordingly, under the plain meaning of the term “adoptive parents,” written as it is in § 40:76, and by virtue of the New York adoption decree, we hold that Adar and Smith are the “adoptive parents” of Infant J for purposes of §§ 40:76 and 40:77.

73

WEBSTER’S ENCYCLOPEDIA UNABRIDGED

DICTIONARY OF THE ENGLISH LANGUAGE

(1989 ed.).

74

Id.

75

Likewise, the Registrar’s argument that

LA.REV.STAT. ANN. § 40:34(D) prohibits altering

vital birth records in violation of state law is without

force; the out-of-state adoption provision,

LA.REV.STAT. ANN. § 40:76, expressly requires the

“adoptive parents” to be named on the new, corrected

birth certificate, and it controls. See, e.g., Morton v.

Mancari, 417 U.S. 535, 550–51, 94 S.Ct. 2474, 41

L.Ed.2d 290 (1974) (“Where there is no clear intention

otherwise, a specific statute will not be controlled or

nullified by a general one, regardless of the priority of

enactment.”).

IV. CONCLUSION
We hold that under the plain meaning of the statutes, Adar and Smith are the “adoptive parents” of the minor J.C. A.-S. for purposes of LA.REV.STAT. ANN. §§ 40:76 and 40:77, and that under the Full Faith and Credit Clause of the Constitution of the United States, Louisiana owes full faith and credit to the New York adoption decree that declares J.C. A.-S. to be the adopted child of Adar and Smith. We hold further that said § 40:76 does not vest the Registrar with discretion to refuse to make a new, correct birth certificate for a Louisiana-born child when, as here, his out-of-state adoption decree is evidenced by documentation that indisputably satisfies the requirements of § 40:76(A) and (B). We also hold that § 40:76 mandates that the Registrar make a new record for J.C. A.-S. and issue a new, correct birth certificate for him containing all statutorily directed information.
We therefore LIFT our stay of the district court’s order; AFFIRM the district court’s grant of a mandatory injunction; and ORDER that the Registrar comply *720 with the district court’s injunction forthwith.76

76

Because we affirm the district court’s grant of summary

judgment on these grounds, we decline to address

Plaintiffs–Appellees’ equal protection arguments.

16