Metro Weekly

SCOTUS says Arkansas must list same-sex parents on children’s birth certificates

Court found state's birth certificate policy discriminated against same-sex couples

Photo: WiLPrZ, via Wikimedia.

In a 6-3 decision, the U.S. Supreme Court has overturned an Arkansas ruling that barred same-sex married couples from being listed as parents on their children’s birth certificates.

The case, Pavan v. Smith, was brought by two lesbian couples who had sued over the exclusion of the non-biological mother from the child’s birth certificate.

The Arkansas Department of Health claimed that only the birth mother was listed because the state has an interest in recording a child’s biological heritage. That reasoning was upheld by the Arkansas Supreme Court.

But the U.S. Supreme Court rejected that, pointing out that Arkansas has a “presumption of parentage” statute whereby a male married to the mother of a child is legally considered to be the father of that child, even if he has no biological ties to it.

“Echoing the court below, the State defends its birth certificate law on the ground that being named on a child’s birth certificate is not a benefit that attends marriage. Instead, the State insists, a birth certificate is simply a device for recording biological parentage — regardless of whether the child’s parents are married. But Arkansas law makes birth certificates about more than just genetics,” the majority opinion reads.

“The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”

Justice Neil Gorsuch dissented, along with Justices Samuel Alto and Clarence Thomas, arguing that the state’s rationale for listing only biological parents was justified.

“To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether…the Arkansas Code, or a state supreme court decision upholding it, must go,” Gorsuch wrote. “The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.

“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.

“In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed,” Gorsuch continued. “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.”

LGBTQ advocates celebrated the decision, declaring victory for same-sex couples who wish to be legally recognized as their children’s parents.

“We are grateful to the Court for sending a clear message that it will not tolerate attempts to flout the Court’s clear holding in Obergefell that married same-sex couples must be given the full panoply of protections tied to marriage under state law,” Catherine Sakimura, family law director of the National Center for Lesbian Rights, who represented the couples.

“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. Marriage equality is settled law and protects same-sex parents and their children from discrimination.”

“This decisive ruling is strong medicine for states and others that think they can resist the full equality due to same-sex couples and their children, mandated as the law of the land in the Supreme Court’s landmark Obergefell decision issued exactly two years ago today,” Susan Sommer, associate legal director and director of constitutional litigation for Lambda Legal, said in a statement.   

“The Arkansas Supreme Court’s decision flew in the face of Obergefell, undermining the dignity and equality of LGBT families and the government’s obligation to protect children,” Sommer added. “It was also an outlier; every other state that had considered this question got it right and ruled in favor of treating LGBT families equally.

“The historic ruling in Obergefell explicitly tells us that the spouses of birth parents, regardless if they are of the same sex or different sex, must be listed on the birth certificates of their children. Obergefell is crystal clear: marriage is marriage, and equal is equal.”

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