June 26, 2017 at 10:50 am EDT | by Chris Johnson
Supreme Court rules for lesbian parents in Ark. birth certificate case
Kirby v. North Carolina State University, Supreme Court, gay news, Washington Blade

U.S. Supreme Court has reversed a decision against lesbian parents’ birth certificates.
(Washington Blade file photo by Michael Key)

The U.S. Supreme Court reversed Monday an Arkansas high court ruling allowing the state to refuse to place a lesbian parent’s name on the birth certificate of their child if the parent isn’t the birth mother.

In the case of Pavan v. Smith, the court in a per curiam decision issued a summary reversal of the Arkansas Supreme Court decision on the basis it contravened the 2015 decision in Obergefell v. Hodges extending marriage equality nationwide, which was handed down exactly two years to the day of the reversal.

“When a married woman gives birth in Arkansas, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate — regardless of his biological relationship to the child,” the decision says. “According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ we reverse the state court’s judgment.”

Observing that plaintiffs in the consolidated Obergefell litigation — namely those in the case of Henry v. Hines — explicitly challenged Ohio’s refusal to recognize same-sex marriages for the purposes of the birth certificates, the justices conclude the marriage equality decision “applies with equal force” to the Arkansas law in question.

The U.S. Supreme Court remanded the case “for further proceedings not inconsistent” with the Obergefell ruling in favor of same-sex marriage nationwide.

In December, the Arkansas Supreme Court ruled the state has no obligation to place the names of both lesbian parents on a child’s birth certificate as a result of litigation filed by three lesbian plaintiff couples to strike down a state law requiring the state to label on a birth certificate the “paternity of the person” when that person is born.

Not all justices were in agreement with the reversal of the Supreme Court decision. U.S. Associate Justice Neil Gorsuch — joined by U.S. Associate Justices Clarence Thomas and Samuel Alito — rejected the court’s conclusion that a summary reversal is appropriate in this case.

“Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders.” Gorsuch writes. “In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”

A trio of legal firms — the National Center for Lesbian Rights, Arkansas attorney Cheryl Maples, who represented the lesbian couples in the case before the Supreme Court, and the D.C.-based law firm Ropes & Gray — filed a petition for certiorari before the Supreme Court in February calling on justices to reverse the decision.

Doug Hallward-Driemeier, partner at Ropes & Gray who served as co-counsel in the case, praised the Supreme Court in a statement for reversing the Arkansas high court decision.

“Today’s Supreme Court decision protects same-sex married couples and their children from discrimination and strengthens the rule of law,” Hallward-Driemeier said. “Marriage equality is the law of the land, and this decision sends a clear message that states must follow the law and treat all married couples equally.”

Catherine Sakimura, family law director for the National Center for Lesbian Rights, commended the Supreme Court in a statement “for sending a clear message” attempts to undermine the Obergefell decision won’t be tolerated.

“Today’s decision means that millions of married same-sex couples across the country can breathe a sigh of relief, knowing that this type of blatant discrimination against their families will not stand,” Sakimura added. “Marriage equality is settled law and protects same-sex parents and their children from discrimination. Arkansas’ blatant refusal to follow Obergefell could not stand.”

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

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