SAME-SEX MARRIAGE
Arkansas denied female couples place on kids’ paperwork
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