ADAR UPDATE

October 18, 2010 § Leave a comment

The Adar decision issued by a three-judge panel of the Fifth Circuit was the subject of a post I made October 1, 2010.  You can read my post here.  The ruling, issued in February and amended in March, was that a same-gender adoption judgment in New York was entitled to full faith and credit in Louisiana. 

On the very day I made my post, the Fifth Circuit en banc vacated the three-judge panel ruling on a petition for re-hearing:

 On October 1, 2010, the Court announced that a majority of the Circuit Judges in regular active service voted in favor of granting En Banc rehearing. By operation of Fifth Circuit Rule 41.3, that decision automatically vacated the Panel decision of February 18, 2010.

That leaves us for now where the case started, which is with a pending appeal to the Fifth Circuit, which now will take the matter up in the full panel.

Stay tuned.

Thanks to attorney Bill Jacob for bringing this to my attention.

FULL FAITH AND CREDIT AND SAME-GENDER COUPLE ADOPTIONS

October 1, 2010 § 1 Comment

In order to adopt a child under Mississippi law, the adoptive parent(s) must be either an unmarried individual or a married couple with both partners joining.  MCA § 93-17-3 specifically states that “Adoption by couples of the same gender is prohibited.” 

What about the situation where a same-gender couple adopt a Mississippi child in a state where it is legal for them to do so, and they ask Mississippi to alter the birth certificate?  Is Mississippi required to recognize the legality of that adoption and enforce their rights here? 

In the case of Adar v. Smith, 597 F.2d 697 (5th Cir. 2010), a New York same-gender couple in a New York proceeding adopted a Louisiana child.  They applied to Louisiana to change the child’s birth certificate to reflect the adoption.  Louisiana objected and took the position that the New York judgment was not entitled to full faith and credit because it was repugnant to Louisiana public policy embodied in its laws that prohibited adoption by unmarried couples. 

The U.S. Court of Appeals for the Fifth Circuit held that the full faith and credit clause of the U.S. Constitution requires states to recognize the valid judgments of other states, even where the judgment of the other state violates public policy in the state where it is sought to be enforced; there is no public policy exception.

Some may ask how this impacts Mississippi law that our state will not recognize same-gender marriages performed in other states.  The distinction for now, until the courts address the question, is that marriage is a bureaucratic, administrative act, as opposed to a judgment entitled to full faith and credit.

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