Birth-certificate flow cut off
Governor’s order on same-sex couples restarts process
Arkansas stopped issuing birth certificates for a few hours Friday morning as a court order brought to a grinding halt a basic government function whose execution same-sex couples have argued for more than two years treats them unequally.
Then, in a move to resume the state’s daily work of issuing hundreds of birth certificates, Gov. Asa Hutchinson ordered his state health director to immediately begin issuing certificates naming the spouses of new mothers, whether the spouse is a man or woman.
Those certificates must accurately record both persons, Hutchinson ordered, suggesting that two women be listed “‘Parent 1’ and ‘Parent 2.’” The state must also issue two corrected birth certificates, free of charge, to couples who had previously been denied such records. The order doesn’t apply to same-sex couples who are men; they follow adoption law.
Left undetermined Friday was whether Hutchinson’s order settled an on-
going legal challenge to the state’s birth certificate laws. Neither the circuit judge handling the case nor the state Supreme Court responded to the governor’s action.
Minutes before Arkansas’ vital records office opened for business Friday, Pulaski County Circuit Judge Tim Fox, citing appeals by the state to change his orders for mediation in the case, ordered the state to immediately stop issuing new and amended birth certificates until its procedures for doing so — ruled to be illegal by the U.S. Supreme Court — can be applied evenly to both samesex and opposite-sex couples.
The hiatus lasted until around noon, when the Department of Health announced it would resume normal operations, which was quickly followed by the announcement of the governor’s order.
Attorney General Leslie Rutledge quickly accepted the governor’s directive. Cheryl Kathleen Smith Maples, the lawyer who led the legal challenge against the state’s birth certificate laws, was more hesitant.
“That should take care of the majority of our problem,” Maples said.
Maples represented three married couples — all women — who sued the state in 2015 after the Health Department refused to issue them birth certificates naming two mothers for their children. The women had conceived their children through artificial insemination.
The case originated in Fox’s court, who struck down a portion of the birth certificate laws. The Arkansas Supreme Court overturned Fox, only to have its decision reversed by the U.S. high court earlier this year. After the case was sent back to Arkan- sas, the state’s Supreme Court justices ordered Fox to come up with a solution.
Fox had previously warned that he would shut down the birth certificate process if state attorneys and the couples’ lawyer could not reach an agreement by
Jan. 5.
On Friday,
Fox canceled his own prior order for Rutledge to appear in person for mediation. Rutledge had appealed that directive to the Arkansas Supreme Court, challenging the legality of the courts issuing such orders to constitutional officers such as herself.
“It has come to the attention of the court that the defendant has refused to mediate utilizing the mediation parameters and framework that this court has ordered. The defendant has filed pleadings with the Arkansas Supreme Court concerning this court’s mediation requirement that threaten to indefinitely postpone the final resolution of this case,” Fox wrote in his order.
“Whether such refusal is based in good faith or is a further delaying tactic by the defendant is immaterial. This case has been pending for over two years and it has been more than six months since the United States Supreme Court ruled the Arkansas statutory scheme unconstitutional. There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis.
“As the defendant is unwilling to mediate using the framework outlined by this court there is no need to further delay implementation of the United States Supreme Court’s mandate.”
Rutledge, who in a statement said her office had already reached an agreement with the couple’s attorney that mirrored the governor’s order, accused the judge of thwarting a solution.
“Judge Fox has been preventing this agreement from becoming effective and we hope he will accept this reasonable solution,” Rutledge said in a press release.
Maples, the couple’s attorney, said there was such an agreement but that “it was not in final form.”
At the vital records office in Little Rock on Friday morning, new parents, foster families and other people who for one reason or another needed a new birth certificate were met with a sign informing of the “unexpected court order.”
“Just overhearing conversation,” was how Christina Cameron, 27, of Fayetteville heard the news after traveling three hours with her husband, Stevie, to get birth certificates for his two children, ages 5 and 9.
The state vital records office in Little Rock and the Pulaski County Health Unit are the only places in the state that issue birth certificates in person, according to Health Department spokesman Meg Mirivel. People can also apply for the records online or through the mail.
Inside the state office, about four staff members for the agency hurried to meet families at the door to explain what they could do: take their forms and contact information, and reach out as soon as the agency knew more.
The Health Department counted 41 people who came in seeking birth certificates while the court order was in effect, Mirivel said.
The Camerons, like several other people who spoke to reporters, said they had been unaware of the ongoing litigation and were just getting filled in.
After sitting down with agency staff, and with the help of a friend who got his paperwork in order, 65-yearold Keith Carpenter of Horatio said he left pleased after his two-hour drive to get to the Little Rock office.
“They were very helpful and they got me sat down to finish my work,” Carpenter said of the staff. “Very professional.”
Carpenter said he lost his birth certificate years ago while moving and needed a new one so that that he could travel to Mexico in hopes of saving some money on dental work.
When told of the court case that led to the delay, Carpenter said he had no issues with same-sex couples appearing together on their children’s birth certificates. “Let ’em have it,” he said. Lawmakers, however, have declined to take action as the courts examined legal challenges to Arkansas’ birth certificate laws. When legislation was introduced in the Senate Judiciary Committee earlier this year to rewrite the state’s artificial insemination law with gender neutral language — a solution first proposed by the Republican attorney general’s office — the proposal died after the only Democrat on the committee failed to get anyone to back a motion to consider it.
“I think we should have already solved this issue,” said state Sen. Joyce Elliott, D-Little Rock, one of Senate Bill 580’s sponsors. She said she believed Fox did the right thing Friday and that the governor’s directive “sounds as if it’s an attempt to be reasonable.”
One of the Senate committee’s Republicans who declined to back Elliott’s bill, Sen. Trent Garner of El Dorado, said he withheld support for the legislation to see “the legal process play out,” but on Friday he called Fox’s ruling “an extreme step of judicial activism.”
Garner said he felt both sides of the lawsuit were headed toward the solution eventually ordered by the governor, which he said was “reasonable.”
While saying she was mostly pleased with the governor’s directive, Maples said she was concerned that it was written to apply to only one section of the birth certificate laws, while Fox’s ruling mentioned two sections of law.
The section of law left out of the governor’s order, Arkansas Code Annotated 20-18-406, deals with adoption and the legitimization of children born out of wedlock. That law is gender neutral. Maples said she received verbal assurance from Solicitor General Lee Rudofsky of Rutledge’s office that the state would treat same-sex couples the same when issuing birth certificates under that section of law.
Rudofsky and the attorney general’s office declined to comment.
Other same-sex couples, including two men, who have children through adoption or surrogacy already have to go through the same processes as heterosexual couples to obtain birth certificates, Maples and the Health Department said.
In June, after the U.S. Supreme Court ruled against Arkansas’ process for issuing birth certificates, the Health Department began issuing birth certificates to same-sex couples naming two mothers when conception was through clinical artificial insemination. The governor’s decision expanded that policy to all female couples, no matter how they conceived.
Same-sex marriage was legalized in Arkansas in 2015 as a result of the U.S. Supreme Court’s Obergefell v. Hodges decision.