December 9, 2016 at 12:02 am EST | by Chris Johnson
Ark. court rules against lesbian parents on birth certificates

same-sex marriage, gay news, Washington Blade

The Arkansas Supreme Court has ruled against lesbian parents in a birth certificate case.

The Arkansas Supreme Court ruled on Thursday the state has no obligation to place the names of both lesbian parents on a child’s birth certificate, drawing criticism that justices are running afoul of the nationwide decision in favor of same-sex marriage.

In a 37-page decision written by Associate Justice Josephine Linker Hart, the court denies the request of three lesbian plaintiff couples to strike down a state law requiring the Arkansas to label on a birth certificate the “paternity of the person” when that person is born.

Arkansas Department of Health Director Richard Smith cited that law defending the department’s decision to place the name of the birth mother, but not the spouse, on the birth certificates of the children for each of the lesbian plaintiff couples.

“We conclude that the evidence presented by Smith — the affidavit of the vital records state registrar — established that the challenged classification serves an important governmental objective — tracing public-health trends and providing critical assistance to an individual’s identification of personal health issues and genetic conditions — and that the means employed — requiring the mother and father on the birth certificate to be biologically related to the child — are substantially related to the achievement of those objectives,” Hart writes.

Plaintiffs in the case first sought to overturn the state birth certificate law on the basis that it violated the state circuit court decision in the Wright case, which briefly brought marriage equality for seven days to Arkansas before the Arkansas Supreme Court placed a stay on the decision. But the Arkansas Supreme Court determined the marriage ruling doesn’t apply to birth certificates.

“A fair reading of the Wright orders indicates that the orders did not address the issues presented here relating to birth certificates,” Hart writes. “In fact, birth certificates are not mentioned at all in the orders. Instead, in examining the Wright orders, the Wright court ruled on the constitutionality of amendment 83 and statutes governing marriage.”

Plaintiffs also made the case the refusal to place both names of both lesbian parents on a child’s birth certificate runs afoul of the U.S. Supreme Court decision extending across the nation, but the Arkansas Supreme Court also denied this ruling affects the state’s birth certificate law.

“The question presented in this case does not concern either the right to same-sex marriage or the recognition of that marriage, or the right of a female same-sex spouse to be a parent to the child who was born to her spouse,” Hart writes. “What is before this court is the narrow issue of whether the birth-certificate statutes as written deny the appellees due process.”

Dissenting to the majority ruling is Associate Justice Paul Danielson, who determined the Arkansas marriage decision in state court applies to the birth certificate law, even though the statute wasn’t named, as well as the U.S. Supreme Court decision for same-sex marriage.

“The majority errs in suggesting that the right to be named as a parent on a birth certificate is not a benefit associated with marriage and likewise errs in holding that the specific statutes at issue here focus on biological relationships rather than marital ones,” Danielson writes.

Kate Oakley, senior legislative counsel for the Human Rights Campaign, blasted the majority decision as an attempt to undermine the U.S. Supreme Court ruling for nationwide same-sex marriage.

“It is clear that including both married spouses’ names — regardless of whether they are same-sex or opposite sex — on a child’s birth certificate is exactly the kind of benefit of marriage that the U.S. Supreme Court ruled should be extended to same-sex couples,” Oakley said. “This disappointing ruling from the Arkansas Supreme Court is a clear violation of equal protection for married, same-sex couples, as affirmed by the U.S. Supreme Court in Obergefell, and it is a deliberate attempt to undermine the rights of couples who have been guaranteed equality under the law when it comes to marriage.”

The decision reverses the ruling of the circuit court below the Arkansas Supreme Court, which found Arkansas state law on birth certificates contravened decisions in state court and the U.S. Supreme Court in favor of same-sex marriage. Last year, the Arkansas Supreme Court placed a stay on the circuit court decision pending appeal.

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, filed a friend-of-the-court brief in the case and said Arkansas Supreme Court is taking an approach different from other state high courts in Wisconsin, Florida, Indiana, Texas, Utah, Iowa and Mississippi.

“Non-biological fathers are added to Arkansas birth certificates without need of court order (under assisted reproduction laws) and there is no reason to treat non-biological same sex parents different than non-biological opposite sex parents,” Dickson said.

A spokesperson for Arkansas Attorney General Leslie Rutledge, who defended the birth-certificate law in court on behalf of Arkansas Department of Health, on the other hand expressed support for the decision.

“Attorney General Rutledge is gratified that the State Supreme Court agreed that the circuit court far exceeded its authority by unilaterally re-writing major sections of statutes passed by the General Assembly,” Rutledge spokeperson Judd Deere said. “If any changes are appropriate it is the job of legislators to do so, not the circuit court.”

Representing the plaintiff couples in the case was Searcy-based attorney Cheryl Maples, who said she was “disappointed in the decision and disagree with it” when asked if she would file a petition of certiorari before the U.S. Supreme Court to seek review.

“I am weighing our options at this point and have a meeting scheduled for today to discuss,” Maples said. “It is likely, though, that we will appeal.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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