Arkansas Supreme Court won’t allow lesbian moms to be listed on birth certificate
Judges said it should be left to legislators, not courts, to amend the law to acknowledge same-sex couples
The Arkansas Supreme Court reversed a lower court’s ruling and found that parents in same-sex relationships do not have the same right to be listed as parents on their children’s birth certificates as do heterosexual parents, reports the Arkansas Democrat-Gazette.
The high court reversed and dismissed a decision by Pulaski County Circuit Judge Tim Fox, who had struck down part of the Arkansas law prohibiting same-sex couples from being listed automatically on the birth certificates. Three same-sex lesbian couples had sued, alleging that the state statute violates equal protection under the law. All three couples were given birth certificates listing only the biological mother as a parent and no father. To be listed on the children’s birth certificate, same-sex couples are forced to go through an expensive and often drawn-out second-parent adoption process.
The high court overturned Fox’s ruling in a 6-1 decision, saying the statute was not discriminatory because it reflected the Health Department’s interest in recording biological lineage, not the sex of the parent raising them. Justice Josephine Linker Hart wrote for the majority that listing a same-sex couple on the birth certificate fails “to acknowledge basic biological truths.”
In her opinion, Hart also criticized Fox for making “inappropriate remarks” when he issued his decision. Hart alleged that Fox said the high court would deprive same-sex couples of their rights if they granted a temporary stay of his ruling, which it eventually did.
“A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity and impartiality,’ not only of this court, but also of the entire judiciary,” she wrote.
A spokeswoman for Attorney General Leslie Rutledge said the attorney general was “gratified” by the high court’s decision. Rutledge has maintained that it should be left up to the state legislature to change the law if it sees fit, rather than the courts.
Two of the justices who ruled to overturn Fox’s decision called on the legislature or the executive branch to change the law to fix the problem facing same-sex couples. Chief Justice Howard Brill and Justice Rhonda Wood agreed that the U.S. Supreme Court’s decision in Obergefell v. Hodges makes parts of Arkansas law outdated, but that it is not up to the court to rewrite the law. Wood also dissented from the court’s decision to admonish Fox.
Justice Paul Danielson, the dissenting vote, wrote that the U.S. Supreme Court, in Obergefell, had specifically listed birth and death certificates as one of the benefits attached to marital status. Furthermore, he said, one of the cases that was reviewed in the decision involved a same-sex married couple challenging the law that would not allow the non-biological parent to be listed on their child’s birth certificate.
“Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry ‘safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,'” Danielson wrote. “The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.”
Cheryl Kathleen Smith Maples, the attorney representing the lesbian couples, promised to appeal the decision. She expects that she will appeal the decision to the U.S. Supreme Court. Maples argues that it is unconstitutional to require same-sex couples to have to obtain a court order to prove their parenthood, while heterosexual couples do not. Echoing Danielson’s conlusion in citing the Obergefell decision, Maples said: “I don’t know how the [U.S. Supreme Court] could be more clear on what their intent was. This decision is in error.”
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