USA TODAY US Edition

SAME-SEX MARRIAGE

Arkansas denied female couples place on kids’ paperwork

- Richard Wolf

Justices ruled in favor of samesex couples who complained that an Arkansas birth certificat­e law discrimina­ted against them.

The Supreme Court on Monday struck down an Arkansas law that treats samesex couples differentl­y than opposite-sex couples on their children’s birth certificat­es.

The ruling came in an unsigned opinion from the court. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

In a rare practice after the high court’s decision in 2015 striking down state bans on same-sex marriage, some states put the husbands of new mothers on birth certificat­es even if they are not the biological fathers, while making no provision for same-sex spouses.

The challenge was brought by two female couples in Arkansas, where health officials refused to list the non-biological spouse on a newborn’s birth certificat­e — even though state law requires that husbands who are not the biological fathers receive that status. The state Supreme Court upheld the law in December in a divided ruling. Associate Judge Jo Hart reasoned that “it does not violate equal protection to acknowledg­e basic biological truths.” Chief Justice Howard Brill urged a change in the law, quoting Bob Dylan’s The Times They Are A-Changin’.

“The Arkansas Supreme Court’s decision, we conclude, denied married same-sex couples access to the ‘constellat­ion of benefits that the state has linked to marriage,’ ” the court wrote, quoting from its same-sex marriage ruling, Obergefell v. Hodges.

In his dissent, Gorsuch took a swipe at Justice Anthony Kennedy, who wrote the decision in 2015 and for whom Gorsuch once served as a law clerk. “Nothing in

Obergefell spoke — let alone clearly — to the question whether (the Arkansas law), or a state supreme court decision upholding it, must go,” he said.

In asking the U.S. Supreme Court to hear the case in court papers, Douglas Hallward-Driemeier — one of the lawyers who won the landmark same-sex marriage case two years ago — said upholding the Arkansas law would let states “once again relegate same-sex couples and their families to the stigma, injury and inequality of ‘second-tier’ status.”

If the law had been allowed to stand, he said, other states — among them Alabama, Alaska, North Carolina, Wisconsin and Wyoming — would not be pressured to change similar statutes that differenti­ate between husbands and same-sex spouses.

The state argued that the two couples should have challenged the state’s artificial inseminati­on statute rather than its birth certificat­e law. It noted that after winning a lower court ruling, the couples received birth certificat­es listing both same-sex spouses as parents.

Upholding the Arkansas law would let states “once again relegate same-sex couples and their families to the stigma, injury and inequality of ‘second-tier’ status.” Lawyer Douglas Hallward-Driemeier

 ?? SERGEI SUPINSKY, AFP/GETTY IMAGES ??
SERGEI SUPINSKY, AFP/GETTY IMAGES

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