Louisiana AG asks for full trial in birth certificate lawsuit

Posted on 19 Jan 2009 at 10:26am
By By Janet McConnaughey Associated Press

Upton compares AG’s reasoning to segregation

NEW ORLEANS — The state attorney general has asked a federal judge to reconsider his ruling that both fathers’ names must be added to the birth certificate of a boy born in Shreveport and adopted by a gay couple from out-of-state.

Court papers filed Wednesday, Jan. 14 in New Orleans ask U.S. District Judge Jay Zainey either to hold a full trial or to ask the state Supreme Court to interpret the state law at the heart of the matter.

Zainey ruled without a trial in December, saying the facts were so clear that none was needed. He ordered the state Office of Vital Records to put the names of both Oren Adar and Mickey Ray Smith on the amended birth certificate that is standard for adoptions.

The mother gave them custody of the boy, identified in court papers as "J.C. A.-S." and "Infant J," shortly after his birth in late 2005. The adoption became formal in April 2006 in New York, where officials decided earlier this month that same-sex couples could list both their names on their children’s birth certificates.

Under Louisiana law, a single person or a married couple may adopt a child, but two single people may not. However, Zainey ruled that because the adoption became formal in New York, the Office of Vital Records must recognize that state’s adoption law on this matter.

Smith and Adar said that because they didn’t have a birth certificate for their son, they had problems getting him insured through Smith’s health insurance and were detained at an airport because a security guard thought they had kidnapped the boy — he is black; Smith and Adar are white.

Both matters were resolved, and worries that they might recur "are conjectural, hypothetical and non-imminent," said S. Kyle Duncan, a lawyer with the attorney general’s office.

The brief also contends that Adar and Smith don’t have any legal right to sue, because they could get a birth certificate with either Adar’s or Smith’s name on it. Problems they say have been caused by lack of a birth certificate wouldn’t exist if they accepted the certificate offered, the state contends.

"That is just offensive. I can’t believe the state actually made that argument," said Kenneth D. Upton Jr. of Dallas, the Lambda Legal Defense and Education Fund, Inc. attorney representing Adar and Smith.

He compared it to defending restrictions overturned decades ago on African-Americans by saying, "You don’t have a transportation problem — you just sit in the back of the bus."

If Zainey doesn’t call for a full trial, Duncan argued, he should ask the Louisiana Supreme Court to decide whether a birth certificate listing an unmarried couple as parents would violate state law.

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