Adar v. Smith

REAVLEY, Circuit Judge,

concurring:

I concur in the court’s opinion by Chief Judge Jones but respond briefly to the disappointing dissent. My dissenting colleagues go beyond our due to fault the *163Louisiana official for her construction of the Louisiana statute. And then they claim the court here conflicts with the Tenth Circuit’s decision1 where Oklahoma had prohibited its courts and agencies from any recognition of foreign adoptions by same-sex couples. Whatever the correctness of that opinion may be, it is not the case on appeal where the forum state has not refused to recognize the foreign adoption. As the dissent acknowledges, the only contest here is whether plaintiffs may require the Registrar to put both of their names on an amended birth certificate.

But the disturbing theme of the dissent is that the “Full Faith and Credit Clause creates a federal right that is actionable against state actors via 42 U.S.C. § 1983.” That ignores all of the authority to the contrary as the majority opinion shows. Remember that the Supreme Court said in Thompson v. Thompson, that the “Full Faith and Credit clause, in either its constitutional or statutory incarnations, does not give rise to an implied federal cause of action.”2 The Court supports that statement by citing Minnesota v. Northern Securities3 and Wright and Miller who wrote that it had long been understood that a judgment in another state does not present federal question jurisdiction simply because the plaintiff alleges that full faith and credit must constitutionally be given to the judgment.4 As Justice Scalia said, concurring in Baker v. General Motors, the full faith and credit clause only gives general validity, faith and credit to foreign judgments as evidence.5

The dissent would isolate us from controlling precedent of many years.

. Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir.2009).

. Thompson v. Thompson, 484 U.S. 174, 182, 108 S.Ct. 513, 518, 98 L.Ed.2d 512 (1988).

. Minnesota v. Northern Securities, 194 U.S. 48, 72, 24 S.Ct. 598, 605, 48 L.Ed. 870 (1904).

. 13D Wright, Miller & Cooper, Federal Practice and Procedure § 3563.

. Baker v. General Motors, 522 U.S. 222, 241, 118 S.Ct. 657, 668, 139 L.Ed.2d 580 (1998).