IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30036

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

Appeals from the United States District Court

for the Eastern District of Louisiana

Before JONES, Chief Judge, 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

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 12, 2011

Lyle W. Cayce

Clerk

 Judge King and Judge Graves did not participate in this decision. *

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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 of Vital

Records and Statistics, refused their request. The Registrar took the position

1

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 of this 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 banc. 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 of Appellees’

claims and their jurisdictional basis. Rather than parse the litigation history in

detail, this discussion will demonstrate the following propositions:

The Registrar’s duty to maintain vital statistics and records is created within 1

Louisiana’s Public Health and Safety Law. LA. REV. STAT. ANN. tit. 40, ch. 2.

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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 of Cont’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 of both Smith and Adar as parents–the practical

significance of which is undisputed–and through this action seek to redress the

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.

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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 of action 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 federal law 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

Acts, Records and Proceedings shall be proved, and the Effect

thereof.

In pertinent part, the statute states:

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§ 1738. State and Territorial statutes and judicial

proceedings; full faith and credit.

. . .

Such Acts, records and judicial proceedings or copies thereof [of any

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 of Infant 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 of reasoning is superficially appealing, but it cannot be squared

with the Supreme Court’s consistent jurisprudential treatment of the full faith

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

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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 of the subsequent

forum state. The forum’s failure properly to accord full faith and credit is subject

to ultimate review by the Supreme Court of the United States. Section 1983 has

no place in the clause’s orchestration of inter-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 of this 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 of the

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

‘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

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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 of its 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 v. Duryee, 11 U.S.

(7 Cranch) 481, 485, 3 L. Ed. 411 (1813) (Story, J.); Hampton v. 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 of comity with a constitutional duty of states to honor the

laws and judgments of sister states. Estin v. 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 of comity and thus basically altered the status of the States

as independent sovereigns”). With respect to judgments, this meant that other

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.

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2002) [hereinafter “WRIGHT & MILLER”]; Magnolia Petroleum Co. v. Hunt,

320 U.S. 430, 439, 64 S. Ct. 208, 214 (1943) (noting that “the clear purpose of the

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 v. Duke, 375 U.S. 106, 109, 84 S. Ct. 242, 244 (1963)

(quoting Riley v. 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

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.

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at 664. For this reason, a state satisfies its constitutional obligation of full 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 (10th 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. All of these principles are

2

inconsistent with stating a claim remediable by § 1983.

The Supreme Court has described the full faith and credit clause as

imposing a constitutional “rule of decision”on state courts. While the Court has

3

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

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.

Thompson v. Thompson, 484 U.S. 174, 182-83, 108 S. Ct. 513, 518 (1988) (“[T]he 3

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

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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 of full

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

denies the validity of a sister state’s law or judgment. See Allen v. Alleghany

4

Co., 196 U.S. 458, 464-65, 25 S. Ct. 311, 313 (1905); Johnson v. N.Y. Life Ins.

the court is sitting.’”) (quoting Minnesota v. 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).

 In cases arising under federal diversity jurisdiction, full faith and credit issues may 4

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).

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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. v. 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). Consequently, since the duty of

5

affording full faith and credit to a judgment falls on courts, it is incoherent to

speak of vindicating full faith and credit rights against non-judicial state actors.

6

Fifth Circuit law confirms this point. See White v. 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

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

See also 16B AM. JUR. 2D Constitutional Law § 1030, at 998-99 (1964) (“In order to 5

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). 

One might argue that this interpretation of the clause is curious given that the 6

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 of its 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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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

(“[B]efore a court is bound by the judgment rendered in another State, it may

inquire into the jurisdictional basis of the foreign court's decree. If that 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

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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. Id. at 185-

87, 108 S. Ct. at 519-20.

In making this point, the Court distinguished between enforcement of the

PKPA by federal courts and a “full faith and credit approach,” which simply

imposed a federal duty on states vis-à-vis sister-state decrees. Id. The Court

held that the PKPA embodied the latter approach because Congress had

expressed no intention of involving federal courts in the enforcement of full 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

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“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.” Id. 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.

Id. 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.” Id.

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,

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

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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 of the

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. 10-

12571, 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 (10th 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 relief under § 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 of the 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

argued, that (1) the clause has hitherto been enforced only as to court decisions

denying recognition of out-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

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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 of a 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 CHARLES ALANWRIGHT ET AL.,FEDERAL PRACTICE AND

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 of the 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 of jurisdiction”); 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

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

of jurisdiction over such claims, federal district courts may not hear such cases.

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See, e.g., Chicago & A.R. Co., 108 U.S. at 22, 1 S. Ct. at 615. Thus, the Fifth

7

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, for full faith and credit doctrine

8

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.,

315 U.S. 343, 349, 62 S. Ct. 608, 612 (1942); McElmoyle ex rel. Bailey v. 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

See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.2.1, at 275 (5th ed. 2007) 7

(“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 of Artice 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.”).

For example, Louisiana law provides that “[a] writ of mandamus may be issued in all 8

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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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 v. 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 v. 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

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

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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 of other

States regarding the time, manner, and mechanisms for enforcing judgments.”

Id. at 235, 118 S. Ct. at 665. Rather, enforcement of judgments is “subject to the

evenhanded control of forum law.” Id. “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 of their 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

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

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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 v. Rosner, 294 U.S. 629, 642,

55 S. Ct. 589, 592 (1935). Importantly, in Estin v. 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 v.

Eastin, 215 U.S. 1, 30 S. Ct. 3 (1909).

These principles applied in Hood v. 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. Id. 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

plaintiffs, in a provision denying them the right to inherit land in another state.”

Id. Justice Holmes wrote that Alabama “does not deny the effective operation

of the Louisiana [adoption] proceedings” but only says that “whatever may be the

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status of the plaintiffs, whatever their relation to the deceased . . . the law does

not devolve his estate upon them.” Id.

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 of its 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 of limitations 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

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

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preclusive between [the former employee] and GM” in Michigan did not prevent

the employee from testifying if permitted by Missouri courts. Id. 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.” Id. 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” of that state. Id. 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. Id. 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

§ 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

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if the New York order had explicitly stated that plaintiff need not register in

New York or any other state, Illinois’s recognition of the 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 of a foreign judgment that envisioned

less restrictive requirements being imposed on the relevant sex offender.” Id. 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.” Id.

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 if the 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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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 of unmarried parents

is a suspect classification. While Appellees rely heavily upon the Levy v.

Louisiana line of cases to support the inference that heightened scrutiny is

10

nonetheless required here, the classification described in those cases relates to

Appellees rely on the broad purposes of § 1983 to bolster their claim. In Dennis v. 9

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’ rightto recognition of their out-of-state adoption decree has not been abridged, only

the enforcement in terms of a revised birth certificate.

 391 U.S. 68, 88 S. Ct. 1509 (1968).

10

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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. And, since adoption is not a fundamental right, the

11 12

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 of Dep’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 of unmarried

partners–furthers the interests of adopted children. In fact, research institution

Child Trends released a report underscoring the importance of stable family

structures for the well-being of children. In particular, the report noted that

13

marriage, when compared to cohabitation, “is associated with better outcomes

Importantly, even if the classification at issue were based on illegitimacy,

11

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.

See, e.g., Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 811 (11th

12

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.

Kristin Anderson Moore et al., Marriage from a Child's Perspective: How Does 13

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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for children,” since marriage is more likely to provide the stability necessary for

the healthy development of children. This fact alone provides a rational basis

14

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.

Id. at 2. The report explains that “cohabiting unions are generally more fragile than 14

marriage.” As a result, such children are more likely to “experience instability in their living

arrangements,” which “can undermine children’s development.” Id.

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REAVLEY, Circuit Judge, concurring:

I concur in the court’s opinion by Chief Judge 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 decision where

1

Oklahoma had prohibited its courts and agencies from any recognition of foreign

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 of their names

on an amended birth certificate.

But the disturbing theme of the 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 of action.”

2

The Court supports that statement by citing Minnesota v. Northern Securities

3

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

Finstuen v. Crutcher, 496 F.3d 1139 (10 Cir. 2009).

1 th

Thompson v. Thompson, 484 U.S. 174, 182; 108 S. Ct. 513, 518 (1988). 2

Minnesota v. Northern Securities, 194 U.S. 48, 72, 24 S. Ct. 598, 605 (1904).

3

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given to the judgment. As Justice Scalia said, concurring in Baker v. General

4

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.

 13D Wright, Miller & Cooper, Federal Practice and Procedure § 3563, 4

Baker v. General Motors, 522 U.S. 222, 241, 118 S. Ct. 657, 668 (1998). 5

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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 v. 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

of this 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 v. Crutcher, 496 F.3d 1139 (10th Cir. 2007). The

Eleventh Circuit has also spoken. See Stewart v. 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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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 (Weiner, 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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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 of why

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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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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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.1 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 banc majority is my

rejection out of hand of the linchpin of their 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

of the 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 banc 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 of the 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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several states, (2) the right is concrete, specific, and judicially cognizable, and (3)

the provision was intended to benefit the party bringing the action. As I shall

1

do my best to show, all three of these 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 judicial ledgermain, is the en banc 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 of which 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

Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989). 1

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she refuses to recognize the out-of-state judgment that defines Appellees as

“adoptive parents”?

I lament that, in its determination to sweep this high-profile and

admittedly controversial case out the federal door (and, presumably, into state

court), the en banc majority:

! Strips federal district and appellate courts of subject matter

jurisdiction over violations of the FF&C Clause.

! Unduly cabins, if not emasculates, Ex parte 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 of this case

or point elsewhere to any recitation of the facts, reference may be made to its

See Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007). See also Rosin v. Monken,

2

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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factual and procedural posture as detailed in the panel opinion. I here

3

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 C A-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 of that state. That court made the adoption final by issuing a valid

order of adoption; neither the Appellant nor the en banc majority questions

either the validity or finality of that 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 of the 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. Still following Louisiana’s statute,

4

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

See Adar v. Smith, 597 F.3d 697, 701-02 (5th Cir. 2010). 3

The Registrar remains so even though the family now lives in California and even 4

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 Infant J, lives or plans to live

in Louisiana. It 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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updated birth certificate following adoptions, and Louisiana law directs the

5

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 of an adopted child on his Louisiana birth certificate, irrespective of his

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 of out-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

Adar and Smith are, after all, the only legal parents Infant J has—not even the 5

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. 

Adar, 597 F.3d 713-19. 6

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violates that Clause by impermissibly classifying Appellees 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 banc, which brings us to today.

II. ANALYSIS

A. The Full Faith and Credit Clause Claim

To begin with, the en banc 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. But this just is

7

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

See En Banc Majority Opinion at 5 (“Infant J was adopted in a court proceeding in 7

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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certificate,” as the en banc majority misleadingly asserts. Instead, Appellees

8

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 banc 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, and,

9

(2) alternatively, the Registrar “has not denied recognition” to Appellees’ New

York adoption decree. When read in proper context, however, both assertions

10

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 banc majority’s first misstep is to read words into the FF&C Clause

that simply are not there. The FF&C Clause states:

Id. 8

Id. at 5, 16. 9

See id. at 18 (emphasis in original).

10

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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 of each 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 of inter-court comity,”

as—out of thin air—the en banc majority claims. By its terms, the FF&C

12

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. It is a foundational principle of constitutional interpretation that clauses

13

of the Constitution that are worded differently are presumed to carry different

meanings. The en banc majority ignores this principle when it assigns the

14

“each State” language of the FF&C Clause the same meaning as the “Judges in

every State” language of the Supremacy Clause.

15

 U.S. CONST. art. IV, § 1 (emphases added). 11

 En Banc Majority Opinion at 6 (emphasis added).

12

See U.S. CONST. art. § VI, cl. 2 (“This Constitution . . . shall be the supreme Law of 13

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 v. Maryland, 17 U.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)).

Additionally, in the political-question context, it has long been settled that a clause

15

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 banc 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

banc majority’s second misstep, then, is its twisting of Supreme Court

precedent—Thompson v. Thompson and its progeny—which holds only that

16

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 banc 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; or, on the other hand, that

17

Congress did not intend to create a private remedy to enforce the rights created

by the FF&C Clause. But, if we were to read Thompson and its progeny as

18

others, only when the clause evinces a “textually demonstrable commitment” to that branch.

Nixon v. United States, 506 U.S. 524, 228–29 (1993) (citing Powell v. McCormack, 395 U.S.

486, 519 (1969); Baker v. Carr, 369 U.S. 186, 217 (1962)). 

 484 U.S. 174, 187 (1988).

16

See id. at 183 (“Unlike statutes that explicitly confer a right on a specified class of 17

persons,the PKPA is a mandate directed to state courts to respect the custody decrees of sister

States.” (citations omitted)).

See id. at 179 (“‘[T]he legislative history of a statute that does not expressly create 18

or deny a private remedy will typically be equally silent or ambiguous on the question.’”

(quoting Cannon v. Univ. of Chicago, 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 of last resort on FF&C Clause issues. By contrast, if

19

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 banc

majority for the proposition that the FF&C Clause only affords a rule of decision

predicate for implication of a private remedy plainly does not exist.”); id. at 180 (“[T]he

context, language, and legislative history of the 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. Sierra Club, 451 U.S. 287, 297 (1981))).

See, e.g., Manhattan Life Ins. Co. of N.Y. v. Cohen, 234 U.S. 123, 134 (1914) 19

(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 of jurisdiction 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 of want of jurisdiction, 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 of the [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 of the 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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in state courts ), the defendant was a private citizen, not a state official! This

20 21

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 judgment (and

22

See En Banc Majority Opinion at 16. 20

See, e.g., Thompson, 484 U.S. at 178 (suit by an ex-husband against an ex-wife); 21

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).

See Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir. 1992) (“[U]nder the common

22

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 of the fifty states have

enacted some version of the Revised Uniform Enforcement of Foreign 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 . . . .” Thus, a parish clerk of court—a

24

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

of law and without a state judge’s application of the FF&C Clause’s alleged “rule

of decision.” In this way, the en banc 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.”).

The Act, promulgated in 1964 by the National Conference of Commissioners on 23

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). 

 LA. CONST. art. V, § 28 (emphasis added).

24

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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 of those states and even

the Louisiana Constitution.

Lastly, the en banc 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 of its government” that “a State defines

itself as a sovereign.” This is why there is no provision anywhere in the

25

Constitution that removes from the states the discretion to discharge the

obligations that the Constitution imposes on them however they see fit. This

26

constitutionally mandated solicitude toward the states’ prerogative to arrange

their own affairs is the reason that we have the clear-statement rule of statutory

construction. By declaring that the FF&C Clause requires the states to use

27

only their courts, and not also their non-judicial officials, to fulfill their full-faithGregory v. Ashcroft, 501 U.S. 452, 460 (1991). 25

The closest the Constitution comes is in the Republican Form of Government Clause, 26

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).

See Gregory, 501 U.S. at 460 (“If Congress intends to alter the usual constitutional 27

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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and-credit obligations, the en banc 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 banc 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.” Yet again, in a precedential non sequitur, the majority relies

28

exclusively on Thompson v. 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 of official violation

of federally protected rights.” With this maxim firmly entrenched, the Court

29

has willfully extended the aegis of § 1983 enforcement to non–Fourteenth

Amendment rights, such as, for example, those guaranteed by the dormant

Commerce Clause.

 En Banc Majority Opinion at 13 (citing Thompson, 484 U.S. 174). 28

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 700-01 (1978). See 29

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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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 of non-individual constitutional

rights. Dennis v. Higgins is a prime example. There, a motor carrier filed a

31

§ 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. The

32

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.” The Supreme

33

Court nevertheless directed that “[a] broad construction of § 1983 is compelled

by the statutory language . . . . The legislative history of the 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

13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, RICHARD D. 30

FREER, JOAN E. STEINMAN, CATHERINE T. STRUVE, VIKRAM DAVID AMAR, FEDERAL PRACTICE

AND PROCEDURE § 3531.6 (3d ed. 2010).

 498 U.S. 439 (1991). 31

See id. at 441 (“In his complaint, petitioner complained, inter alia, that the taxes and 32

fees constituted an unlawful burden on interstate commerce and that respondents were liable

under 42 U.S.C. § 1983.”).

Id. at 442 (internal quotation marks omitted).

33

Id. at 443 (internal footnote and quotation marks omitted).

34

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attempts to limit the types of constitutional 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.” The Court had identified three factors that initially help

36

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.” The Dennis Court

37

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

Id. at 445.

35

493 U.S. at 106 (quotation marks and citations omitted). Because the Registrar has 36

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.

Id. (quotation marks, alterations, and citations omitted).

37

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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.” The Court disagreed, explaining that the individual plaintiffs were

39

“within the ‘zone of interests’ protected by the Commerce Clause.” Additionally,

40

the regulation of the states in this instance was for the plaintiffs’ benefit.

41

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

498 U.S. at 446-47 (internal quotation marks and citations omitted and emphases 38

added).

Id. at 449.

39

Id. 40

See id. 41

See, e.g., Estin, 334 U.S. at 545-46 (“The Full Faith and Credit Clause . . . substituted 42

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 . . . .”).

50

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judicially cognizable; and the FF&C Clause was intended to benefit individual

43

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-à-vis the States, and those provisions which

allocate power between the Federal and State Governments.” He concluded

45

that “[t]he former secure rights within the meaning of § 1983, but the latter do

not.” Thus, Justice Kennedy distinguished all “supposed right[s]” secured by

46

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, prohibiting

47

See, e.g., Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. 43

Guar. Ass’n, 455 U.S. 691, 693-94 (1982).

See Thomas v. Wa. Gas Light Co., 448 U.S. 261, 278 n.23 (1980) (“[T]he purpose of 44

[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. v. 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 v. Denckla, 357 U.S. 235, 246 n.12

(1958).

Dennis, 498 U.S. at 452-53 (Kennedy, J., dissenting). See also Golden Transit, 493 45

U.S. at 116 (Kennedy, J., dissenting) (“[Section 1983] thus distinguishes secured, rights,

privileges, and immunities from those interests merely resulting from the allocation of power

between the State and Federal Governments.”).

Dennis, 498 U.S. at 453 (Kennedy, J., dissenting). 46

 114 U.S. 317 (1885). 47

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a § 1983 action for a Contracts Clause claim. In Carter, the Court had

48

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 of the attempt to

impair its obligation. This is the only right secured to him by that

clause of the constitution.

49

Justice Kennedy insisted that this construction of the Contracts Clause applied

equally, if not more so, to the Commerce Clause:

At least such language [of the 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—an Article 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

See Dennis, 498 U.S. at 457-58 (Kennedy, J., dissenting). 48

 114 U.S. at 322. 49

Dennis, 498 U.S. at 458 (Kennedy, J., dissenting). 50

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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 finality

of judgments obtained by individuals in one state vis-à-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” —here, the Registrar’s refusal to

51

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 banc majority errs absolutely in concluding otherwise.

 Id. 51

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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”—making three distinct pronouncements:

(1) “[a] final judgment in one State . . . qualifies for recognition throughout the

land” and thereby “gains nationwide force”; (2) although “[e]nforcement

52

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”; and

53

(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

Baker, 522 U.S. at 233 (citations omitted and emphasis added).

52

 Id. at 235 (citation omitted and emphasis added).

53

Id. (citations omitted and emphasis added). Interestingly enough, the Registrar

54

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 of the

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 of political thin

air.

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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 banc 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.” But, the Supreme Court has only

55

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 v.

Crutcher, the en banc majority’s conclusion “improperly conflates [Louisiana]’s

 En Banc Majority Opinion at 21. 55

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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.” Louisiana’s birth certificate statute

56

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 banc majority’s reliance on the Supreme Court century-old case of

Hood v. McGehee aptly illustrates its error in confusing “recognition” with

57

“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

 496 F.3d at 1153 (emphasis added).

56

 237 U.S. 611 (1915). 57

See id. at 615.

58

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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 banc majority asserts. The

59

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

of them, 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 of Alabama in Hood, and—for the same reasons that

Alabama’s law did not violate the FF&C Clause—the Registrar’s actions

ineluctably do.

The en banc majority also improvidently relies on Rosin v. Monken, a

Seventh Circuit case that the majority mislabels “instructive.” Rosin does not

60

support the majority’s position, however. To the contrary, it exemplifies exactly

 En Banc Majority Opinion at 20-21. 59

Id. at 22. 60

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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. The Seventh Circuit held that the absence of a 61

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.” Nevertheless, the defendant’s New York

62

“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

See Rosin, 599 F.3d at 575.

61

Id. at 577.

62

Interestingly enough, in this “instructive” case, the plaintiff brought a FF&C Clause

63

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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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

See, e.g., Williams v. North Carolina, 325 U.S. 226, 230 (1945) (“Since divorce, like

64

marriage, creates a new status, every consideration of policy 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 of out-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 of the certificate of the adopted child.

65

This specialized statute unequivocally directs the Registrar to record all validly

66

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.

 LA. REV. STAT. ANN. § 40:76 (emphases added). 65

The Registrar has argued, and the en banc majority has agreed, that § 40:76(A)’s 66

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 of determining whether the certification furnished

by the applicants is satisfactory. For a more extended discussion on why the Registrar and the

en banc majority is mistaken, see Adar, 597 F.3d at 715-18.

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The en banc majority is simply off target 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.” I repeat, Louisiana is declining to recognize the New York decree

67

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 banc majority’s contention that the

Registrar’s offer to reissue the birth certificate, but only with the name of either

Adar or Smith, both “compl[ies] with Louisiana law” and “recognizes Appellees

as the legal parents of their adopted child.” These assertions are puzzling to

69

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. If anything, the en

 En Banc Majority Opinion at 5 (emphasis added).

67

 Reissuing a revised birth certificate to Appellees would also be consistent with the 68

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).

 En Banc Majority Opinion at 19. 69

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banc 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. This flies in the face of that unambiguous

70

statute which explicitly governs out-of-state adoptions of Louisiana-born

children and just as explicitly mandates the listing of every adoptive parents on

presentation of the 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. Appellees challenge only the constitutionality of the Registrar’s policy

71

Furthermore, although not raised by Appellees, if the Registrar were to issue a birth

70

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 re Adoption 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”).

Appellees presumably could have brought a mandamus action in state court for an 71

order commanding the Registrar to issue a revised birth certificate under Louisiana law (an

action that, under Pennhurst State School and Hospital v. Halderman, 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 if legally 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

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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 banc majority opinion creates a circuit split.

The en banc majority superficially dismisses Finstuen v. Crutcher as “an

outlier to the jurisprudence of full faith and credit,” implicitly disrespecting the

72

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.

 En Banc Majority Opinion at 16. 72

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the natural relation of child and parent shall thereafter exist

between the adopted child and the adoptive parents of the 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

statutes.

73

Oklahoma only differed from Louisiana, however, in that Oklahoma’s legislature

forthrightly enacted an additional statute that excluded specific subsets of outof-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

of this 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.

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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 of non-recognition of only particular—but not all—out-of-state adoption

decrees.

 OKLA. STAT. tit. 10, § 7505-6.5(A). 73

 OKLA. STAT. tit. 10, § 7502-1.4(A) (emphasis added).

74

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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 banc majority makes a flawed distinction when it

asserts that “[t]he bulk of the [Finstuen] opinion is devoted to analysis of the

allegedly unconstitutional state non-recognition statute, a problem different

than the one here.” This blesses Louisiana’s cynical ploy of having its Registrar

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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 of the FF&C Clause, the Tenth Circuit clearly read the FF&C Clause

as binding on every branch of a state’s government, and not just on state judges,

which is in direct tension with the en banc majority’s reading of the FF&C

Clause.

The en banc 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

 En Banc Majority Opinion at 15. 75

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the Full Faith and Credit Clause.” Here, the Registrar’s uncodified policy of

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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 banc 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 banc majority refuses to acknowledge that there are important

prudential reasons for this appellate court—sitting en banc 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 banc 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 of law the “proper

resolution [of which] . . . is beyond any doubt.” As I respectfully but strongly

78

disagree with the en banc majority’s conclusion that the proper resolution of

Finstuen, 496 F.3d at 1141. 76

In addition, the en banc majority is simply wrong to claim that “[o]nly one federal 77

court decision has permitted a full faith and credit claim to be brought in federal court

pursuant to § 1983,” citing Finstuen. En Banc 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.

Vogt v. Bd. of Comm’rs of Orleans Levee Dist., 294 F.3d 684, 697 (5th Cir. 2002).

78

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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 if for no other

reason than to demonstrate that the resolution of this claim is definitely not

“beyond any doubt.”

1. 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.” Here, Appellees challenge the Registrar’s policy of denying an

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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

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

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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 banc 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. Appellees’ claim has

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absolutely nothing to do with adoption laws—particularly not Louisiana’s

adoption laws as found in the Louisiana Children’s Code —and has everything

81

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

“Vital Statistics Laws” are Chapter 2 of Title 40, “Public Health and Safety,” of 80

Louisiana’s Revised statutes. See generally LA. REV. STAT. ANN. §§ 40:32-356.

See LA. CHILD. CODE ANN. arts. 1198, 1221. 81

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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. Consequently, because the Registrar has failed to

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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

banc 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 of the en banc 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

If anything, there is an argument that denying Appellees an accurate birth certificate

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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.

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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 of Infant J by virtue of the 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 of birth of the child only if the father

and mother have signed a voluntary acknowledgment of paternity

or a court of competent jurisdiction has issued an adjudication of

paternity.

84

This is not to say that I don’t believe that Appellees have a viable claim under the 83

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 reflectthe parental status of unmarried couples, i.e., unmarried biological parents.

 LA. REV. STAT. ANN. § 40:34(B)(1)(h)(ii). 84

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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 of an

unmarried couple as parents when they are the biological parents of the 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.

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What’s the legal difference? Where’s the Equal Protection? Can there be

any question that the en banc 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 banc 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.

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