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Friday, July 23, 2010
Hawaii lawsuit challenges use of racial identification on birth certificates
By Selected News Articles @ 9:51 AM :: 12063 Views :: Maui County, Education K-12, Energy, Environment, National News, Ethics

Lawsuit of the Day: Fun With Hawaii Birth Certificates

By David Lat  

Orly Taitz and the Birthers aren’t the only people obsessed with Hawaiian birth certificates. A young lawyer by the name of Adam Gustafson — a 2009 graduate of the Yale Law School and former vice president of the Yale Federalist Society, who’s currently clerking in Hawaii for Judge Richard Clifton (9th Cir.) — is making a federal case over them.

And Chief Judge Susan Oki Mollway, the district court judge who wound up with the case, is not impressed. She recently dismissed Gustafson’s complaint — in forceful fashion:

This case is an example of why people who overreact to situations are accused of “making a federal case out of nothing.”

Plaintiff Adam Gustafson and his wife… proceed pro se against various state officials. The Gustafsons complain about having been asked to state their race and any Spanish origin on a birth certificate registration form submitted in October 2009 for their Hawaii-born daughter. The Gustafsons articulated to the State their objection to a birth certificate identifying their races.

The court has no quarrel with the Gustafsons’ wish for a birth certificate devoid of such information. What follows, though, shows questionable judgment.

Ouch — quite the benchslap. Gustafson’s boss, Judge Clifton, should keep Gustafson far away from any appeals of decisions by Judge Mollway.

Filing a federal lawsuit in Hawaii, while clerking in Hawaii for a federal judge? It’s gutsy of Gustafson. At least he won’t have to travel far for any appearances.

So what about Gustafson’s case reflects “questionable judgment”?

It appears that the Gustafsons are like the Birthers: despite having received the requested birth documentation from Hawaii, they just won’t quit. From Judge Mollway’s order dismissing the complaint:

Within a few weeks of having articulated their objection [to providing their races on their daughter's birth certificate], and without having received a response from the State, the Gustafsons filed the present lawsuit. The State responded by issuing a birth certificate without any designation as to race or Spanish origin. Not satisfied, the Gustafsons filed a First Amended Complaint and now continue to seek damages.

That’s the big picture; let’s get into the nitty-gritty. The Gustafsons’ daughter was born in October 2009. After her birth, the Gustafsons submitted a birth registration for her, in which they left blank the spaces left for stating their races as her parents. The Gustafsons then requested two certified copies of her daughter’s birth certificate (just in case, you know, she might want to run for president someday).

Instead of getting the birth certificates, the Gustafsons received a letter from one “K. Lavarias,” an official in Hawaii’s “Office of Health Status Monitoring” (which sounds a trifle Orwellian). From Judge Mollway’s order (citations omitted):

The letter notified the Gustafsons that the birth registration form was incomplete because it omitted the race and Spanish origin of the parents. The letter stated, “The information on race is very useful and important on health and other factors associated with childbirth and infancy.” The letter said that the Gustafsons’ provision of information on their race and Spanish origin would be appreciated. Lavarias told the Gustafsons that, until such time as the requested information could be entered on the birth certificate, “certified copies of the certificate will not be issued.”

Somewhat confusingly, Lavarias concluded, “If we do not receive the requested information by the deadline date, [December 10, 2009,] we will enter ‘Information not given.’ on the birth certificate.”

The statement by Lavarias is key, insofar as it suggests that all the Gustafsons had to do was leave the race information blank and wait for the birth certificates to show up (which is, in fact, what eventually happened).

But the Gustafsons may have been more interested in filing a constitutional challenge to Hawaii’s policy of requesting race information than in actually getting birth certificates for their daughter. Check out how Adam Gustafson responded to the letter from Lavarias, as summarized in the court’s order:

On or about November 13, 2009, Adam Gustafson responded to Lavarias’s letter with two single-spaced pages of questions, including:

1. How should I decide what race to report for purposes of my daughter’s birth certificate? Is there a scientific test I can perform or a document I can look to for an authoritative determination of my race? Or is it simply what I say it is?

(Well, there’s an IQ test, you see. And if your score is low enough, then… oh, never mind.)

2. If my race is what I say it is, must I choose from a pre-established list of races, or may I invent a new word to describe my race? If the former, what races are on the list? If the latter, are there any limitations on the length or content of my self-reported race?

The Gustafsons: You can't handle the truth... about our races!

The idea of inventing a new word to describe your race sounds kind of… fun!

Let’s say that you, like Hawaii-born Barack Obama, have a white mother and a black father. Could you call yourself… Mocha? Or maybe limit yourself to Crayola’s 50 Favorite Colors. How would you like to be… Burnt Sienna?

In all seriousness, this is an interesting question. As interracial marriages and the number of biracial or multiracial people increase, “race” becomes increasingly complicated and difficult to define.

For example, check out the 2010 Census form, and mouse over questions #8 and #9. While I’m glad to see “Filipino” as an enumerated option — I checked it off myself — question #9 is starting to look ridiculous.

Back to the questions that Adam Gustafson — who’s super-cute, as you can see in the photo above — had for the State of Hawaii:

7. Is it possible to report race and Spanish-origin for statistical purposes yet require that they not be encoded or reported on the birth certificate?

Strange question — what would be the point of leaving that out? So your daughter can claim she’s an underrepresented minority and avail herself of affirmative action, without fear of documentary contradiction?

Instead of waiting for the State to respond to the two single-spaced pages of questions — given the speed at which state government bureaucracy operates, that would have taken a while — the Gustafsons made a dash for the federal courthouse:

The Gustafsons did not wait for the State to respond to either the letter of November 13, 2009, or [an additional] letter of November 24, 2009. On November 30, 2009, less than a week after sending the second letter, the Gustafsons filed the original Complaint in this matter, seeking the issuance of a birth certificate for their daughter with no designation of race.

A lawyer for the State of Hawaii tried to resolve the matter by sending the Gustafsons two certified copies of their daughter’s birth certificate, which did not mention the Gustafsons’ race. But the Gustafsons pushed forward with their lawsuit, which is how they wound up on the business end of Judge Mollway’s dismissal order.

The Gustafsons asserted a whole host of claims under 42 U.S.C. § 1983 (“Section 1983″), which allows plaintiffs to sue when a person acting under color of state law has violated their federal constitutional rights. The Gustafsons claimed that Hawaii’s policy of getting parents to declare their races for inclusion on birth certificates constitutes “an unreasonable search and seizure, infringement of their freedom to travel and freedom of speech, due process deprivation[], and equal protection violation[].”

(Bar exam studiers: GO!)

Some of these claims sound — well, a bit impressionistic, in a “penumbras and emanations,” Yale Law School kind of way. They might fly on appeal — certain judges on the Ninth Circuit have a weakness for using Section 1983 to advance creative constitutional lawyering — but Judge Mollway gave them short shrift. She dismissed all of them, citing multiple grounds (e.g., waiver, lack of cognizable injury, and lack of ripeness).

This was one of the more interesting parts of Judge Mollway’s analysis (citations omitted):

The Gustafsons depend on their right of informational privacy, which they say protects them from having to disclose certain personal matters, such as sexual activity, medical information and treatment, and financial matters. The Gustafsons analogize their racial background to medical and financial information. It is not clear to the court that the analogy is apt. Although not always discernible on sight, race is at least sometimes obvious without the utterance of a single word.

That last sentence is definitely fodder for a law school classroom discussion. Is it still true today? And is it true with respect to Hawaii’s notion of “race”? In his motion for reconsideration, Gustafson argued:

Whether or not [the obviousness of race] is true of some conceptions of race, it is not true of the subjective racial declaration the Department requires. Defendants admit that the race printed on a Hawaiian birth certificate is self-reported by the child’s parents and that the Department of Health performs no verification of its accuracy…. “Race” for the Department’s purposes is therefore an intimately personal expression of a person’s own racial self-identity.

Judge Mollway: Is her race discernible on sight?

Disagreeing with Judge Mollway on whether race is obvious doesn’t necessarily change the outcome of the case — the court goes on to note that “the Gustafsons were not actually forced to disclose their race to obtain their child’s birth certificate,” and “were not even clearly asked to do so on pain of being denied the birth certificate” — but it’s still interesting to think about.

So Judge Mollway dismissed the Gustafsons’ federal claims (and declined to exercise supplemental jurisdiction over remaining state-law claims). The Gustafsons filed a motion for reconsideration — and received some sass from Her Honor, in her denial of the motion:

On July 16, 2010, Plaintiffs filed a motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. On July 19, 2010, without citing any authority allowing them to do so, Plaintiffs filed a Revised Memorandum. This filing appears to have been necessary because Plaintiffs were unable to finish the memorandum in time to comply the deadline set forth in Rule 4(a)(4)(A)(vi) of the Federal Rules of Appellate Procedure.

Adam Gustafson has graduated from law school and is currently clerking for a judge on the Ninth Circuit Court of Appeals. This court assumes that Adam Gustafson expects a document filed as an opening brief in any appeal to be a complete document rather than something preliminary filed by a deadline only to be followed by the real brief after the deadline. This court nevertheless considers
Plaintiffs to be proceeding pro se and considers the revised memorandum.

Wow — we heard that benchslap all the way here on the mainland! I had the pleasure of meeting Judge Mollway this spring, when I spoke at the District of Hawaii Judicial Conference, and she was exceedingly friendly and welcoming; I had no idea she had such snark in her.

(Judge Mollway: If you get tired of this whole “judging” thing, Your Honor, there’s a spot for you here at Above the Law.)

Setting snark aside, there is a real issue here: Is it appropriate for a state to require parents to declare their races so they can be stamped on to their children’s birth certificates, where they will remain in perpetuity? As of 1993, only five states had such policies in place. Now, over 15 years later, we have a multiracial president in the White House. Is it still necessary to insist upon racial identification on birth certificates — or is it time to discard such policies as outdated and counterproductive?

What valid purposes are served by such policies? Don’t they just exacerbate the problem of excessive race-consciousness in this country? To quote the wise words of Chief Justice John Roberts, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And the way to stop discriminating on the basis of race is to stop knowing or caring what race a person is. [FN1]

In hindsight, trying to reform social policy by bringing a lawsuit in federal court might have been ill-advised (a view that conservatives have been pushing for years, and one that Adam Gustafson, a former officer of the Yale Federalist Society, should have also understood). But even if Gustafson’s lawsuit wasn’t ripe in a technical, legal sense, Hawaii’s policy of asking for race on birth certificates may be ripe for review — by the elected branches and the people of the state.


[FN1] Note how I’ve framed the question, in terms of “valid purposes.” Hawaii may be curious about parental race because Native Hawaiians — not simply “people born in Hawaii,” but descendants of indigenous Polynesians — are eligible for special programs and benefits from the state. Whether facilitating the distribution of state benefits according to race is a “valid purpose” is very open to question. 

Background: Hawaii media coverage 

To learn more about the lawsuit, Gustafson v. Fukino, browse through the docket (PACER registration required), or check out selected documents via the links below. We reached out to Adam Gustafson for comment, but he declined to provide a statement.


U.S. District Court for the District of Hawaii:
Gustafson v. Fukino: Order Dismissing First Amended Complaint
Gustafson v. Fukino: Revised Memorandum in Support of Motion for Reconsideration
Gustafson v. Fukino: Order Denying Motion for Reconsideration



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