Brief: Birth-files limitation unlawful

State laws prohibiting married same-sex couples from putting their names on children’s birth certificates are discriminatory and unconstitutional, and should be voided by the state’s highest court, according to an attorney representing gay couples.

On Monday, Cheryl Maples filed with the Arkansas Supreme Court her response in an appeal being sought by state attorneys.

The state’s appeal seeks to reverse the December 2015 ruling by Pulaski County Circuit Judge Tim Fox that portions of the state’s laws governing birth certificates are unconstitutional in light of recent rulings that legitimized gay marriage.

In her response brief, Maples argued Fox correctly applied state case law — that struck down Arkansas’ bans on gay marriage in 2014, and a U.S. Supreme Court ruling that did so nationally in June — in his finding gay couples were entitled to have their names on their children’s birth certificates.

State attorneys argued — absent an adoption or court order — state law ties the hands of Arkansas Department of Health officials, which is why those officials are unable to include both same-sex couple’s names of the certificates.

Maples argued the state’s position “puts a significant burden” financially and emotionally on the children of same-sex couples and makes those “children as illegitimate.”

The action taken by state officials “singles out these children and punishes them for their parents’ sexual orientation and stigmatizes them as less worthy of dignity and respect than children of heterosexual couples,” Maples wrote. “The only difference between a heterosexual couple that conceived a child with donor sperm through artificial insemination and a homosexual couple that conceived a child with donor sperm through artificial insemination is the fact that the non-birth parent is, in this case, a lesbian female.”

Maples — who succeeded in getting a state judge to declare the state’s ban on gay marriage unconstitutional two years ago — filed suit against the Department of Health on behalf of three married lesbian couples that have children.

In December, Fox said the women in those cases were entitled to have their names on their children’s birth certificates. He voided the parts of state law relying on gender-specific designations.

He ordered the state to add the nonbiological parents’ names to the children’s certificates. That month, the Supreme Court agreed to stay Fox’s ruling while the case is under appeal.

In briefs filed in April, state Assistant Attorney General Colin Jorgensen argued the case poses important questions about public policy, but the prohibition doesn’t infringe on any constitutional rights.

Jorgensen argued neither the state nor federal rulings striking down gay marriage bans made any specific allowances or instructions for how to handle birth certificates.

He also argued the state law doesn’t discriminate, but relies on “biological parentage.” He contended the rights of parents don’t automatically flow through marriage.