ACLU Secures Important Victory in Landmark Ruling for Lesbian and Gay Parent Families

(San Francisco, CA, April 22, 2005) — In a case brought by the ACLU of Virginia on behalf of four children adopted by same-sex couples, the Virginia Supreme Court ruled today that the Virginia Department of Vital Records must issue new birth certificates for children adopted by lesbian and gay parents and that the new certificates must list both parents.

The Virginia Supreme Court held that the Department of Vital Records must comply with a state law requiring that new birth certificates be issued to all adopted children: “Clearly the statute, Code Section 32.1-261, anticipates the listing of adoptive parents without specific restrictions.”

Prior to today’s ruling, the Department of Vital Records refused to issue new birth certificates for children adopted by lesbian and gay couples, on the ground that such adoptions are not permitted in Virginia and allegedly violate the public policy of Virginia. The children in this case were born in Virginia, but adopted by same-sex couples in the District of Columbia and New York.

The National Center for Lesbian Rights assisted Professor Joan Hollinger, one of the nation’s foremost scholars on adoption law, in filing an amicus brief in the case. “This is an important victory for adopted children and adoptive families,” said Professor Hollinger, who is one of the principal authors of the Uniform Adoption Act. “It ensures that any child born in Virginia and validly adopted by a same-sex couple in another state is entitled to receive a new birth certificate indicating the names of the child’s new adoptive parents. Having a new certificate is essential for proving the child’s identity and legal parentage. For example, without a new birth certificate, the child may have difficulty getting a U.S. passport, enrolling in school, obtaining medical treatment, inheriting from his or her adoptive parents, or proving that the child is eligible for Social Security and other state and federal benefits.”

In her amicus brief, Professor Hollinger argued that interstate recognition of adoption decrees is mandated by the federal constitution, as well as by state law. “Although the opinion is based on an appropriate reading of the Virginia statute,” said Professor Hollinger, “it is consistent with the requirement of the Full Faith and Credit Clause of the U.S. Constitution that every state must recognize and enforce a judgment of adoption issued under the laws of another state.”

Nationwide, more than half the states permit same-sex couples to adopt children. In addition, every state has a statute similar to Virginia’s, requiring the state to issue new birth certificates for adopted children who are born in that state.

In California, the Department of Health Services has long issued amended birth certificates including the names of both same-sex partners after the completion of a second parent adoption. More recently, to comply with California’s new domestic partnership law, the Department of Health Services has directed that both same-sex partners’ names be included on a child’s original birth certificate for children born to registered domestic partners after January 1, 2005.

The ACLU initially challenged the state’s refusal to issue new birth certificates for children adopted by lesbian and gay couples in 2002. The ACLU argued that the state’s policy violated the state’s birth certificate statute, the Equal Protection Clause, and the Full Faith and Credit Clause.

Lawyers representing the plaintiffs in the case are Rebecca K. Glenberg, legal director of the ACLU of Virginia; Michael Ward and David Lubitz with Swidler Berlin Shereff Friedman, LLP, Washington, D.C.; and Michelle Zavos, Washington, D.C. The case is Katherine Anne Fisher Davenport et. al v. Deborah Little-Bowser et al.

To read the decision or Professor Hollinger’s amicus brief, go to www.nclrights.org.

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.