Davenport v. Little-Bowser

• Decision Date: 22 April 2005
• Docket Number: Record No. 041180.
• Citation: 269 Va. 546,611 S.E.2d 366
• Parties: Katherine Anne Fisher DAVENPORT, et al. v. Deborah LITTLE-BOWSER, et al.
• Court: Virginia Supreme Court

611 S.E.2d 366

269 Va. 546

Katherine Anne Fisher DAVENPORT, et al. v. Deborah LITTLE-BOWSER, et al.

Record No. 041180.

Supreme Court of Virginia.

April 22, 2005.

Michael E. Ward (David M. Lubitz; Steven J. Tave; Rebecca K. Glenberg; Michele Zavos; Swidler, Berlin, Shereff, Friedman; American Civil Liberties Union of Virginia, on briefs), Washington, DC, for appellants.

William E. Thro, State Solicitor General (Jerry W. Kilgore, Attorney General; Maureen Riley Matsen, Deputy State Solicitor General; Matthew M. Cobb, Associate State Solicitor General; Courtney M. Malveaux, Associate State Solicitor General; David E. Johnson, Deputy Attorney General; Howard M. Casway; Senior Assistant Attorney General, on brief), for appellees.

Amicus Curiae: Lambda Legal Defense and Education Fund, Inc. (John L. Squires; Gregory R. Nevins; Jack H. Senterfitt; Squires Law Office, on brief), in support of appellants.

Amicus Curiae: Professor Joan Heifetz Hollinger (Stephen W. Bricker; Shannon P. Minter; Bricker & Herring, on brief), in support of appellants.

Amicus Curiae: Family Research Council (Benjamin W. Bull; Glen Lavy; Kevin H. Theriot; Joel L. Oster; Alliance Defense Fund, on brief), in support of appellees.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and COMPTON, S.J.

LEMONS, Justice.

This appeal involves the claims of four children and three sets of adoptive parents ("Petitioners") that the Commonwealth must issue new birth certificates listing both adoptive parents on the certificates for each of the four children. Each of the children was born in Virginia and adopted pursuant to judgments issued by courts of competent jurisdiction in other states. The three sets of adoptive parents are each "same-sex" adoptive parents. None of the seven petitioners resides in Virginia.

Petitioners sought the issuance of new birth certificates listing both adoptive parents on each certificate pursuant to Code § 32.1-261. Deborah Little-Bowser, Registrar of Vital Records and Health Statistics ("Registrar"), refused their requests. Petitioners filed a Bill of Complaint and Petition for Writ of Mandamus against the Registrar and Robert B. Stroube, State Health Commissioner ("Commissioner"), in the Circuit Court of the City of Richmond, seeking a declaration that the Registrar and the Commissioner must issue such new birth certificates and requesting the issuance of a writ of mandamus or an injunction to enforce the declaration. The trial court decided the issues on cross-motions for summary judgment, granting the motions of the Registrar and Commissioner and denying the motions of the Petitioners.

I. Proceedings Below

A. Background

Katherine Anne Fisher Davenport was born in Arlington, Virginia on March 26, 1990 and a birth certificate was issued. Timothy M. Fisher is her biological father and has not been divested of his parental rights. The parental rights of the biological mother were terminated by order dated April 13, 1990. W. Scott Davenport filed a petition to adopt Katherine in the Superior Court for the District of Columbia and a Decree of Adoption was entered on April 19, 1992. After providing a certified copy of the adoption decree to the Registrar and requesting the issuance of a new birth certificate, the Registrar issued a new birth certificate that listed only Mr. Davenport as Katherine's father and excluded any mention of Mr. Fisher, who is the biological father. Efforts to have yet another birth certificate issued have been rejected by the Registrar and the Department of Health.

Cameron Fredrick Fisher Davenport was born on May 18, 1992, in Arlington, Virginia and a birth certificate was issued. Mr. Fisher is his biological father and has not been divested of his parental rights. The parental rights of the biological mother were terminated by order dated May 20, 1992. Mr. Davenport filed a petition to adopt Cameron in the Superior Court for the District of Columbia and a Decree of Adoption was entered on August 6, 1993.

On March 16, 2000, the Superior Court for the District of Columbia issued Amended Final Decrees of Adoption for both Katherine and Cameron. In each decree, the court found that the child had been in the "legal care, custody and control of the natural father," and that adoption by Mr. Davenport would be "for the best interests of the adoptee." Upon receipt of the Amended Final Decrees of Adoption, the Registrar issued new birth certificates for Katherine and Cameron each indicating Mr. Davenport as "father" and excluding Mr. Fisher, despite his status as biological father who has not been divested of custody or parental rights. Requests to have new birth certificates issued to reflect both adoptive parents on the certificates have been refused.

Hillary Anne Dalton-Moffit was born in Arlington, Virginia on August 15, 1991 and a birth certificate was issued. On September 19, 1995, the Superior Court for the District of Columbia entered a Final Decree of Adoption "establishing the relationship of parents and child for all purposes" between Mark M. Dalton, Bruce H. Moffit, and Hillary. After providing proof of the adoption, Mr. Dalton requested that the Registrar issue a new birth certificate listing both Mr. Moffit and Mr. Dalton as parents. His request was denied.

John Doe was born on February 27, 1999, in Falls Church, Virginia and a birth certificate was issued. On December 23, 1999, an order of adoption was entered in the Family Court of Dutchess County, New York, decreeing Jean Doe and Jane Doe to be the adoptive parents of John Doe. After providing proof of the adoption, Jane Doe requested the issuance of a new birth certificate reflecting both adoptive parents' names. Her request was denied.

B. Proceedings Below

Petitioners filed a bill of complaint and petition for writ of mandamus against the Registrar and the Commissioner contending that the refusal to provide new birth certificates listing the names of both adoptive parents in each case violates Code §§ 32.1-261(A) and 8.01-389, 28 U.S.C. § 1738 (2000), and both the Full Faith and Credit Clause of Article IV, Section 1, and the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. They sought an injunction or writ of mandamus requiring the Commonwealth to issue the requested birth certificates, a declaration that the Commonwealth's conduct was unlawful, nominal damages, and reasonable attorneys' fees and costs.

The Commonwealth filed a demurrer, which was subsequently denied, and then an answer. After discovery, Petitioners moved for summary judgment and the Commonwealth filed a cross-motion for summary judgment. Both parties submitted briefs to the trial court. After oral argument, the trial court granted the Commonwealth's motion for summary judgment and denied Petitioners' motion for summary judgment. In its final order, the trial court held that "there is no issue of material fact" and that the Commonwealth was "entitled to judgment as a matter of law."

Petitioners filed a timely petition for appeal. We granted three assignments of error: whether the trial court's grant of summary judgment violated "the Full Faith and Credit Clause, Article 4, Section 1 of the United States Constitution [sic], and Section 8.01-389 of the Virginia Code [sic]"; whether the trial court's grant of summary judgment was contrary "to Section 32.1-261(A) of the Virginia Code [sic]"; and whether the trial court's denial of the Petitioners'"Motion for Summary Judgment Interprets Virginia Law So As to Deny [Petitioners] the Equal Protection of the Laws."

II. Analysis

A. Standard of Review

The three assignments of error are questions of law which we review de novo. Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003); Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002). Because Petitioners argue that Virginia law requires the Commonwealth to issue a new birth certificate listing both adoptive parents in each case, we will consider this assignment of error first. See Volkswagen of America, Inc. v. Smit, 266 Va. 444, 454, 587 S.E.2d 526, 532 (2003) (it is an "established principle of constitutional law that a court will not rule upon the constitutionality of a statute unless such a determination is absolutely necessary to decide the merits of the case").

B. Issuance of Birth Certificates Under Virginia Law

In its ruling, the trial court gave two reasons for granting the Commonwealth's motion for summary judgment. First, the trial court held that "under current Virginia law, birth certificates can only list the name of a mother and a father. Birth certificates cannot list the names of two mothers or the names of two fathers. It just cannot be done." Second, the trial court held that "what [it] is being asked to do in directing the registrar to change the birth certificates, in spite of the language that the [Petitioners] try to couch their argument in, is asking [it] to recognize a status that Virginia does not accord to its own citizens." In support of this second reason, the trial court stated that Petitioners were asking it "to do something which the public policy of Virginia just simply does not allow. Whether that is right or whether that is wrong, is not for this [court] to determine. It is something that needs to be addressed by the legislature, if it is addressed at all."

At the outset, it is important to state what this case is not about. There was much discussion in the trial court, and some before this Court, concerning homosexual marriage. This case is about issuing birth certificates under the provisions of Virginia law; it is not about homosexual marriage, nor is it about "same-sex" relationships, nor is it about adoption policy in Virginia.

The primary statutory provision governing the issuance of a new Virginia birth certificate upon proof of adoption, legitimation, or determination of paternity is Code § 32.1-261. When...