Jun 04, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

Richmond, Va. — The American Civil Liberties Union has asked the Virginia Supreme Court to review a lawsuit on behalf of three same-sex couples that were denied new birth certificates by a state agency for their four adoptive children.

The ACLU filed its request in the wake of a Richmond judge’s decision justifying the right of the Virginia Department of Public Records to refuse to comply with the couples’ request.

Richmond Circuit Judge Randall G. Johnson ruled in early February that requiring the state to list the names of the children’s adoptive parents on new certificates directly conflicts with Virginia’s policy prohibiting joint adoption by unmarried couples.

“We’re disappointed in the decision. But lower court judges in Virginia rarely make laws, and we expected the appeal,” said Kent Willis, the executive director of the Virginia ACLU. “This should be a straightforward process in which the adoptive parents, regardless of their gender, fill out a simple form and obtain new birth certificates for their children.

“But this is Virginia, where lawmakers just banned civil unions and other kinds of contracts between gay and lesbian couples. The anti-gay bias runs deep here.”

Ordinarily, the Department of Vital Records automatically honors petitions made by adoptive parents to substitute their names for those of the birth parents. But in the case of gay parents Scott Davenport and Timothy Fisher — a Washington, D.C. couple named in the lawsuit — Vital Records refused, despite a D.C. Superior Court’s decision four years ago to award them official adoption decrees for both of their children, who were born in Virginia.

Despite an inch-thick envelope containing a judge’s adoption decree and powers of attorney, which permanently remains in the glove compartment of their car, Davenport and Fisher say they have still encountered difficulty in emergency situations that necessitate a birth certificate. Seven years ago daughter Kati awoke screaming in the middle of the night from an attack of colic, and hospital staff queried Fisher extensively about his status.

“There I was with a crying child in my lap trying to explain to them who I was exactly because they didn’t quickly understand from the other certificates,” Fisher said. “We anticipated all sorts of problems as gay men adopting; we could never have foreseen such a problem with a simple paperwork procedure.”

Another appeal possible
The ACLU lawsuit has charged that the department’s action violates not only the Full Faith & Credit Clause of the U.S. Constitution, but also the Equal Protection Clause of the 14th Amendment. Willis also says Vital Records’ denial also runs contrary to its own birth certificate statute.

Virginia’s statute authorizes only limited circumstances in which the state registrar shall not issue a new birth certificate upon receipt of a certified copy of the adoption decree: if the court decreeing the adoption so requests, or if the parents and child — upon becoming 18 years of age — so request, according to Willis.

The lawsuit argues that when none of those conditions is present, Vital Records complies with its own code only when the adoptive parents are of different sexes, and deprives gay families equal protection under the U.S. Constitution, he said.

If the Supreme Court doesn’t find for the ACLU on the Equal Protection Clause, Willis said the state of Virginia has unquestionably breached the Full Faith & Credit Clause, which directs states to honor each other’s judicial decrees. A decision from the high court contrary to the ACLU’s argument could result in an appeal to the U.S. Supreme Court.

“They’re saying, ‘We don’t issue this birth certificate because we don’t allow same-sex adoption.’ We’re saying that doesn’t matter,” Willis said. “These couples are allowed to adopt children in the states where they live, and therefore Virginia should respect laws of other states and issue the birth certificate — even if it does not allow same-sex couples to adopt.”

Virginia is the last state to prohibit out-of-state, same-sex adoptive parents from having both names on a birth certificate, according to Rebecca Glenberg, the legal director of the ACLU of Virginia. Other traditionally conservative states, such as North Carolina, Georgia and Mississippi, recently amended their protocols with regard to these types of requisitions.

The Supreme Court has not indicated whether it will even consider the ACLU’s petition, but the ACLU expects a decision within the summer months.

A recent Harris Interactive poll found that support of adoption of children by same-sex couples has doubled from 15 to 35 percent in the past eight years, and the percentage of those opposed ...