Northwest Arkansas Democrat-Gazette
State gays win birth-certificate ruling
List same-sex couples’ names, U.S. high court says in reversing state justices
WASHINGTON — Gay couples who are married are entitled to have both their names listed on their child’s birth certificate, the U.S. Supreme Court ruled Monday.
The nation’s high court rejected an Arkansas law that treated gays differently from heterosexuals, overturning a state Supreme Court ruling that upheld the state statute.
Monday’s 6-3 ruling was handed down on the second anniversary of the Obergefell v. Hodges decision, which struck down state bans on same-sex marriage by a 5-4 vote.
The court reached its decision in a summary reversal, opting not to hear oral arguments or request lengthy legal briefs before ruling.
Quoting a phrase from Obergefell, the majority said the Arkansas law denies same-sex couples “the constellation of benefits that the States have linked to marriage.”
The suit had been brought by four Pulaski County women who are raising young children. The couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, said the nonbiological mothers had helped plan, arrange and pay for the artificial insemination.
The couples’ Arkansas attorney, Cheryl Kathleen Smith Maples, welcomed Monday’s news.
“June 26 is a major day for the LGBT community. June 26 needs to become a national holiday,” she said. LGBT are the initials for lesbian, gay, bisexual and transgender.
Maples said the wasn’t shocked by Monday’s ruling.
“I kind of halfway expected it because the Arkansas Supreme Court’s decision was so clearly wrong,” she said.
Maples said she’ll ask the state to award attorneys’ fees. She did the same thing after successfully challenging Arkansas’ ban on same-sex marriage.
“You would think, if it’s going to cost the state of Arkansas money, they would be more careful about what they decide to appeal,” she said.
The couples welcomed the ruling, commenting on social media and issuing written statements through one of their lawyers.
In an interview, Marisa Pavan said she spent Monday absorbing the high court’s ruling in the case that carries her name: Marisa N. Pavan, et. al. v. Nathaniel Smith. Smith is the director of the state Department of Health.
“I’m still trying to wrap my head around the fact that it’s not just Arkansas but the whole country that’s going to have to listen to this [ruling],” she said in a phone interview, taking breaks to feed snacks to her now 2-year-old daughter.
When her daughter was born to Marisa’s wife, Terrah, the Department of Health initially refused to have Marisa’s name placed on a birth certificate without a court order.
After Pulaski County Circuit Judge Tim Fox ordered the state to do so, Marisa Pavan said she called all the couples she knew with similar situations and had them amend their certificates. The court’s ruling would have an effect on couples well beyond her circle, she said.
Fox ruled in late 2015. The state Supreme Court ruled in December 2016. In February, the Arkansas mothers asked the U.S. Supreme Court to hear their case.
Under Arkansas law, the male spouse of a pregnant woman is automatically listed, by default, as the father when a baby is born, even if the child was conceived through artificial insemination. To change that, the husband, wife and the biological father — or a “court of competent jurisdiction” — must say otherwise.
But Arkansas refuses to list the female spouses of pregnant women who have also opted for artificial insemination.
The state’s attorneys had argued that Arkansas had a legitimate interest in listing biological parents on birth certificates.
It’s an argument the Arkansas Supreme Court accepted.
In a 6-1 ruling, the state Supreme Court had ruled that the law was not discriminatory.
“The purpose of the statutes is to truthfully record the nexus of the biological mother and the biological father to the child,” Justice Josephine Linker Hart wrote in the majority opinion.
She rejected the idea that the statute infringed on the fundamental constitutional rights of nonbiological parents.
The statute, the court said, merely acknowledges “basic biological truths.”
But the U.S. Supreme Court disagreed, ruling that the disparate treatment was unconstitutional.
Married same- sex couples are entitled to the same “rights, benefits, and responsibilities” as other married couples, the majority said in its five-page ruling.
Chief Justice John Roberts, who dissented from the Obergefell decision, sided with the majority this time.
Justice Neil Gorsuch, who was named to the court earlier this year, wrote a three-page minority opinion that was joined by Justices Clarence Thomas and Samuel Alito.
The dissenting judges said that summary reversals are unusual, typically issued when “the law is settled and stable, the facts are not in dispute, and the decision [from the lower court] is clearly in error.”
They questioned the need for “the strong medicine of summary reversal.”
They also noted that Arkansas has two relevant laws related to the listing of parents on birth certificates. The one that was challenged, Arkansas Code 20-18-401, is general. Another, 9-10-201, addresses the paternity of babies born through artificial insemination.
The nonbiological mothers “didn’t actually challenge 9-10201 in their lawsuit,” Gorsuch wrote.
In Monday’s ruling, the court said it was returning the case to Arkansas’ highest court “for further proceedings not inconsistent with this opinion.”
Gov. Asa Hutchinson said
it’s unclear what will happen next.
“I’m looking forward to a more complete analysis, but what the state of Arkansas was looking for was some guidance as to how to proceed on this issue, and I think they gave us some guidance, although, as the dissent pointed out, they didn’t really point us in the right direction as to a solution. So they just said the current situation is not adequate — constitutional — but they did not point us in the right direction as to what is a constitutional solution. So we’ll have to take a look at this again. I’ll be working with the Department of Health to see what ideas they have in light of that decision.”
Meg Mirivel, a spokesman for the Arkansas Department of Health, said the agency is awaiting instructions but plans to act swiftly once they arrive.
In the meantime, the office will do what it can to help those affected by the ruling.
“If same-sex couples would like to come in now, they’re more than welcome to leave their information and once we get guidance from the Arkansas Supreme Court, we will expedite their request,” she added.
Josh Silverstein, a law professor at the University of Arkansas at Little Rock’s W.H. Bowen School of Law, said a summary decision without oral arguments is “relatively rare, but it’s certainly not unheard of. The court does do this with cases that it believes are relatively straightforward.”
And this was a straightforward case, he said.
“Whether you disagree or agree with this result, it is not any dramatic change. It is simply applying the basic logic of Obergefell to this particular context of birth certificates,” he said.
Arkansas Attorney General Leslie Rutledge suggested that the court had reached the wrong conclusion.
“I disagree with the majority’s flawed reasoning and strongly agree with the conclusions of Justices Gorsuch, Thomas and Alito in their well-reasoned dissent,” she said in a written statement. “Nonetheless, the Supreme Court has spoken, and I will continue to review [ Monday’s] decision to determine the appropriate next steps upon remand to the Arkansas Supreme Court to ensure that the law is followed properly.”
Supporters of gay rights welcomed Monday’s ruling.
Sarah Warbelow, legal director for the Washingtonbased Human Rights Campaign, called it a major victory for lesbian, gay, bisexual and transgender parents.
“This is an important win for same-sex parents not just in Arkansas, but across the country,” said Warbelow, an attorney for the nation’s largest gay rights group. “Children deserve to have the full benefits of parental recognition from the time they are born, and this decision ensures married same-sex spouses have the same legal parental rights as different-sex spouses.”
Jerry Cox, president of the Family Council, said the U.S. Supreme Court’s ruling is disturbing.
“Birth certificates are issued for the sake of children — not for the sake of adults. They are not simply pieces of paper. They are vital records that need to be accurate and deserve respect. We should not let them become mere political ploys in the ongoing debates about marriage,” he said in a written statement.