Calif. Court says Two 'Gay' 'Fathers' can have Their Names on Birth Certificate

NEW ORLEANS — A same-sex couple in California has won a federal court ruling that their adopted son's Louisiana birth certificate must bear the names of both adoptive fathers. The facts are so clear that no trial is needed, U.S. District Judge Jay Zainey wrote.

"What a great Christmas present for these guys!" said Kenneth D. Upton Jr. who represented Oren Adar and Mickey Ray Smith of San Diego.

In his ruling Monday, Zainey said Louisiana's Office of Vital Records must give full faith and credit to the New York State court in which Adar and Smith adopted the boy, he ruled Monday. The office had refused to issue a birth certificate listing both as the boy's legal parents.

Upton, reached at home Saturday evening, said he hopes to get a birth certificate in the coming week but doesn't know whether the Louisiana Attorney General's Office — which is in charge, although a state health department attorney argued the case — will decide to appeal.

The attorney general's office will look into the matter next week, said Tammi Arender Herring, spokeswoman for Attorney General James "Buddy" Caldwell.

Upton, of Lambda Legal Defense and Education Fund Inc. of Dallas, said it is the fourth case of its kind that he knows of. Cases in Oklahoma, Virginia and Mississippi also were decided in the parents' favor — the Mississippi case decided at trial about a month ago, he said.

Adar and Smith say they have practical and emotional reasons for wanting both of their names on the birth certificate of the boy, identified only as "J.C. A.-S."

Because Smith's name wasn't on the document, his employer initially refused to enroll the child on his insurance, Smith wrote in a sworn statement. Smith, an accountant, is the family's breadwinner.

The administrator eventually agreed to cover the boy, but "I am forced to go through this process each and every year" to keep him insured, Smith wrote.

"As an adopted child myself, I understand the need a child has to feel like he or she belongs," Smith wrote. "I remember as a child wanting to see my own birth certificate and to see my parents listed because it gave me a sense of belonging, a sense of identity and a sense of dignity."

Adar also said the family often travels, and because the boy is black and they are white, an airline worker once stopped them, thinking they were kidnapping the child. "Every time we fly, we fear this could happen again," he wrote.

J. was born about eight weeks prematurely in Shreveport, in late 2005. He spent his first month in the hospital, and weighed 5 pounds when his mother gave him to Adar and Smith that December, according to Adar's statement.

Their adoption was made final on April 27, 2006, their lawsuit states.

Refusing to name both fathers on the birth certificate "singles out unmarried same-sex couples and their adoptive children for unequal treatment for the improper purpose of making them unequal to everyone else," said the lawsuit filed by Upton and Regina O. Matthews of New Orleans.

Louisiana law does not let two unmarried people adopt a child together, regardless of sex, wrote Carol L. Haynes, representing the state health department and registrar Darlene W. Smith.

Earlier this month, New York state officials decided to let married same-sex couples list both their names on their children's birth certificates.

Zainey wrote that Louisiana law requires a new certificate when it gets an adoption decree, and the law does not include any limits or restrictions. The state's arguments would make the adoption law's "plain language ... meaningless by reading in restrictions and requirements that simply are not present in the text of the statute," he wrote.

Upton said most states have not had problems listing both same-sex parents on an adopted child's amended birth certificate. The difficulties crop up in states that don't allow adoption by same-sex couples, he said, and some registrars question whether a man's name should be in the space labeled "Mother," or a woman's name listed as "Father."

"A lot of states have recently started changing their form so it says 'Parent 1' and 'Parent 2,' which kind of resolves the problem," Upton said.