specially concurring:
Because of my respect for my colleagues with different views, I open with the observation that we are in untraveled territory. There are divergent understandings being stated by these opinions. The sole purpose of each is to reach the correct destination as charted by the Constitution and the Supreme Court. The charts, though, are not well-marked. It is to be expected that different judges making diligent examinations will discern different courses.
In summary, I conclude that the dissent of Judge Wiener has validly analyzed some of the language in what is perhaps the most relevant decision, Thompson v. Thompson, 484 U.S. 174, 178-79, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988). Yet still I reach the same conclusion as does the majority as to the overall effect of that decision. I would not decide the other issues resolved in the majority opinion, namely, that the Defendant has in fact recognized the foreign adoption or that there is no violation of Equal Protection.
As to the Full Faith and Credit Clause, the majority has quite properly observed that considering Section 1983 to be a remedy for purported violations of this Clause is a new, if not quite brand-new, argument. The validity of the Tenth Circuit’s opinion in a related case has been discussed in the other opinions. See Finstuen v. Crutcher, *164496 F.3d 1139 (10th Cir.2007). The Eleventh Circuit has also spoken. See Stewart v. Lastaiti, No. 10-12571, 2010 WL 4244064 (11th Cir.2010) (unpublished). It held Section 1983 was not a vehicle for a claim under the Full Faith and Credit Clause, though its holding was stated softly in an unpublished opinion. Id. at *1-2.
The majority relies heavily on Thompson. That opinion certainly held “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.” Thompson, 484 U.S. at 182, 108 S.Ct. 513 (citations omitted). That strong statement does not clearly resolve our issue. By referring to a “cause of action,” the Court might have been concluding that strictly based on the specific statute there involved and on the Constitution itself, there was not both a personal right and a remedy for a violation. See Larry W. Yackle, Federal Courts 243-44 (3d ed.2009). The Court did not consider Section 1983. It is not clearly reasonable to conclude that Section 1983 was the unaddressed but ready escape from all the barriers thrown in front of the Thompson plaintiff. Still, I am trying to understand what the Supreme Court must be held to have concluded. The most we know from this language in Thompson is that neither the specific statute involved nor the Full Faith and Credit Clause itself provided both the right and the remedy.
The dissent may also have the better of it by noting that the Supreme Court has referred to the Full Faith and Credit Clause in terms of “rights.” See Dissent infra at note 19 (Weiner, J., dissenting). That starts us down the road to considering that all that is needed is a vehicle such as Section 1983 by which to enforce the right.
I cannot continue down that road, and therefore part company with the dissent, because of the language in Thompson that immediately follows the statement about no implied cause of action. The Court gave a clear and quite limited explanation of the reach of the Full Faith and Credit Clause, namely, that it “ ‘only prescribes a rule by which courts, Federal and state, are to be guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records, and judicial proceedings of a State other than that in which the court is sitting.’ ” Thompson, 484 U.S. at 182-83, 108 S.Ct. 513 (quoting Minn. v. N. Sec. Co., 194 U.S. 48, 72, 24 S.Ct. 598, 48 L.Ed. 870 (1904); see 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3563, at 50 (1984)).
Had this 1904 language not been pulled into Thompson, I might more readily consider that Northern Securities was an anachronism from a day before the rediscovery of Section 1983. Though what is now denominated as Section 1983 was adopted in 1871, it had almost from its inception lay dormant until given life in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); See Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability Under Section 1983, 62 S. Cal. L.Rev. 539, 549 (1989).
Another reason to treat the old construction of Full Faith and Credit as outdated would have been the points Judge Wiener makes in his analysis of why the dormant Commerce Clause was found to create individual rights assertable in a Section 1983 action. See Dennis v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991). The majority analytically rele*165gates Dennis to a footnote, concluding that the jurisprudential treatment of the dormant Commerce Clause and the Full Faith and Credit Clause are distinguishable, the former but not the latter often being written in terms of “rights.” See Majority-Opinion supra note 9.
The dissent’s good arguments nonetheless fail in light of the adoption of the Northern Securities definition of this Clause in Thompson. Explaining the 1904 language away as a relic of a different era will not do. This is too recent and clear an explanation of the effect of the Full Faith and Credit Clause to be ignored. Nothing suggests the language was limited to the kind of case the Court was considering, namely, a suit between two private parties. The Supreme Court was explaining the work that the Full Faith and Credit Clause could be made to do — in Thompson and in all other cases.
Having decided that the Full Faith and Credit Clause does not create an individual right on which a Section 1983 suit may be based, I would not address whether the actions of the Louisiana State Registrar constituted a failure to recognize the New York adoption decree. The issue is not necessary to reach, and I would leave it for a case in which it is relevant.
Finally, as to the Equal Protection argument, the usual practice is not to consider an issue until it has first been addressed by the district court. See F.D.I.C. v. Laguarta, 939 F.2d 1231, 1240 (5th Cir.1991). I would follow that practice here.