State policy to change

Certificates for gay couples will list both parents’ names

Married gay couples in Arkansas who were issued birth certificates naming only one parent of a child conceived via artificial insemination can get new documents naming both parents, the Department of Health announced Wednesday.

The decision to begin issuing amended birth certificates reversed in part the agency’s wait-and-see response earlier this week to the U.S. Supreme Court’s declaration that Arkansas’ birth certificate law, as it applies to same-sex couples, violates the U.S. Constitution.

The ruling from the nation’s highest court overturned a December decision by the Arkansas Supreme Court upholding the state law.

The Arkansas law in question presumes that the husband of a woman who gives birth through artificial insemination is the father, and he is automatically named on the birth certificate.

Same- sex couples had sought the same default consideration, but, before Wednesday, the Department of Health refused to issue birth certificates naming both same-sex parents without a court order.

The U.S. justices sent the case back to the state court to reconsider.

That left the state with no clear answer on how to implement the ruling — as well as room for officials to criticize the decision as vague.

Health Department spokesman Meg Mirivel announced the policy change late Wednesday, saying the agency had consulted with the offices of the governor and attorney general.

Attorney General Leslie Rutledge’s office had defended the birth certificate statutes in the lawsuit brought by female couples in Little Rock. The couples said the law treated them differently from heterosexual couples.

Those on both sides of that lawsuit said Wednesday that the Arkansas Supreme Court still would have to rule to give clarity to the issue, despite the new policy of the Health Department.

“That’s major progress,” said Cheryl Kathleen Smith Maples, an attorney for the Little Rock couples, upon learning of the change.

“I don’t want to limit it to only artificial insemination,” she continued. “The birth certificate statute needs to be completely gender neutral. There doesn’t need to be any husband or wife reference in there.”

Rutledge spokesman Judd Deere said the attorney general

Attorneys for the state argued the intent of the birth certificate statutes was to reflect biological lineage — but conceded in front of the state Supreme Court last fall that the statute dealing specifically with artificial insemination could be amended to accommodate same-sex couples.

believes the new policy fulfills the changes required by the U.S. Supreme Court decision, but added the Arkansas justices will have to weigh in on how to proceed with the current birth certificate statute struck down by the higher court.

Earlier this week, Solicitor General Lee Rudofsky of Rutledge’s office submitted a letter to the Arkansas Supreme Court suggesting the justices take 30 days to solicit briefs from both sides explaining how they wish the court to proceed.

In response, Maples said she wants the high court to remand the case to Pulaski County Circuit Court, where a judge previously sided with her clients.

The Arkansas Supreme Court has not given any indication on when it will respond, and justices could depart for a summer recess without handling the matter.

Mirivel said the Health Department’s change was effective immediately. Couples who go to department offices in person will be able to leave with an amended certificate, while others will be mailed out.

Three couples had contacted the agency seeking amended certificates since the U.S. Supreme Court’s decision Monday, according to Mirivel.

Maples said the new policy would affect the “greatest majority” of lesbian couples who had sought birth certificates under the law, but noted that couples — not all of whom are married — can conceive children in a variety of ways.

The Health Department had already been issuing birth certificates naming both same-sex parents who had children through adoption or surrogacy, according to Mirivel. Couples who adopt need a court order showing they did so to get a birth certificate, she said.

“Any other changes that come out of this case will require further guidance from the court,” Mirivel said in an email.

Attorneys for the state argued the intent of the birth certificate statutes was to reflect biological lineage — but conceded in front of the state Supreme Court last fall that the statute dealing specifically with artificial insemination could be amended to accommodate same-sex couples.

In the split decision in December, the Arkansas high court declined to do so, and it overturned a Pulaski County judge’s ruling to strike sweeping sections of the birth certificate code.

In addition to a single dissenting opinion, two Arkansas justices wrote concurring opinions supportive of the women’s arguments that they were entitled to equal treatment under the U.S. Supreme Court’s Obergefell v. Hodges decision to legalize same-sex marriage.

However, the state justices who concurred in part with the majority said it was up to the Legislature to rewrite the laws.

The Legislature declined to do so when it met for a regular session earlier this year. A proposed bill — which would have changed the artificial insemination statute to the same effect as the Health Department’s new policy — died in committee after failing to get a second on a voting motion.

Little Rock Sens. Will Bond and Joyce Elliott, Democrats who sponsored the failed bill, both expressed optimism Wednesday that the Arkansas Supreme Court would provide closure to the issue.

“There’s no point in continuing to drag this out,” Elliott said.

Since the court last handled the issue, its roster has changed. The lone dissenter in last year’s case, Justice Paul Danielson, departed the court along with Chief Justice Howard Brill, who concurred in part and dissented in part.

The pair were replaced by Chief Justice Dan Kemp and Justice Shawn Womack.