When a child is born to a woman married to another woman, both women should be listed as parents on the child’s birth certificate. So ruled the U.S. Supreme Court, voting 6-3 and summarily reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term. The date was coincidentally the second anniversary of the Court’s historic marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which provides the basis for this new ruling in Pavan v. Smith, No. 16-992 (June 26, 2017), reversing 505 S.W.3d 169 (2016).
The petitioners in this case were two married same-sex couples, Leigh and Jana Jacobs and Terrah and Marisa Pavan. Both couples resided in Arkansas when their children were born in 2015, having previously married out of state. Both couples filed paperwork with the state seeking birth certificates listing both mothers as parents. The state turned them down, issuing birth certificates listing just the birth mothers and leaving the space for fathers blank.
The state’s Health Department argued that this was compelled by a state statute that provides that when a married woman gives birth, her husband will be listed on the birth certificate. (This is frequently referred to as the parental presumption.) This is so even if the woman conceives through donor insemination and her husband is not the biological father of the child, or even if some other man got the wife pregnant. Incredibly, the Health Department sought to justify its refusal to name both parents on birth certificates by saying that the purpose of the birth certificate is to record biological lineage, which is pretty strange if husbands get listed regardless of their biological relation to the child. Furthermore, Arkansas, like other states, issues amended birth certificates if children are adopted, listing their new legal parents, again regardless of the fact that one or both of the adoptive parents are not biologically related to the child.
The women sued the Health Commissioner. The trial court agreed with them that this result was unconstitutional under Obergefell, because the statute “categorically prohibits every same-sex married couple from enjoying the same spousal benefits which are available to every opposite-sex married couple.” In Obergefell, the Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples, which means they are entitled to be treated the same by the state for all reasons of law.
The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying the incredible argument that birth certificates are supposed to be a record of biological lineage. Wrote the Arkansas court, “The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” and so it was consistent with Obergefell. Not so, argued the dissenters, writing that under Obergefell “a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple.”
The majority of the U.S. Supreme Court agreed with the dissenters, finding this case so clear that it simultaneously granted the petition for review and issued a summary decision, without waiting for briefing on the merits or oral argument. The decision was issued per curiam.
The Supreme Court concluded that the Arkansas Supreme Court’s decision “denied married same-sex couples access to the ‘constellation of benefits that the State has linked to marriage’” in violation of the Obergefell ruling. Under Arkansas’s statute, “same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. Obergefell proscribes such disparate treatment.”
The Court pointed out that in the Obergefell decision, it had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage to which same-sex couples are entitled on the same basis as different-sex couples. “That was no accident,” said the Court, as “several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates. In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.” The Court said this applied with “equal force” to the Arkansas statute.
Rejecting Arkansas’s argument that birth certificates were all about biological relationships, the Court insisted, to the contrary, that “Arkansas law makes birth certificates about more than just genetics,” citing as a prime example the provision involving donor insemination. “Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: 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,” the Court continued, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.” The case was sent back to the Arkansas courts for “further proceedings not inconsistent with this opinion.”
The majority of the Court included all of the justices who had voted in the majority in Obergefell plus, possibly, Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ failure to join the dissent in this case is notable, given the vehemence of his dissent in Obergefell, but perhaps, accepting that Obergefell is now a precedent and that there are not five votes on the Court to overturn it, Roberts was willing to agree that the Arkansas Supreme Court’s ruling was inconsistent. Alternatively, some have speculated that Roberts, whose vote was not needed to make up a majority and would not make any difference if he joined the dissent, merely preferred to be silent on the question for now. Perhaps he could not bring himself to sign Justice Gorsuch’s dissent.
The three overt dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote an opinion that they joined, did not agree that Obergefell automatically decided this case. When Gorsuch was nominated, it was predicted that he would be as bad for LGBT rights as his predecessor, Justice Antonin Scalia, if not worse. His dissent here vindicated that view.
First, he scolded the Court for deciding the case summarily, arguing that the law in question is not “settled and stable.” He did not deem it clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate, when justified by a policy of recording biological ties.
He took a narrow view of Obergefell, as some lower courts have done in birth certificate litigation around the country, arguing that “nothing in Obergefell spoke (let alone clearly) to the question whether [the Arkansas statute], or a state supreme court decision upholding it, must go. 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.” This is, of course, incorrect, as the per curiam opinion demonstrated. The state’s rules, requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father, clearly do not “ensure” that the biological parents of a child are listed on the certificate. Indeed, as the Court noted in passing in its opinion, the “rules” in Arkansas even provide that if the birth mother, her husband, and the actual biological father of the child all agree in sworn statements, the actual father can be listed instead of the husband, but otherwise the husband would be listed despite his lack of biological connection to the child. Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.
Gorsuch misrepresented the Obergefell opinion when he said that nothing in Obergefell “spoke to the question” in this case. As the Court’s opinion pointed out, the Obergefell opinion specifically mentioned birth certificates and some of the plaintiffs in that case had specifically confronted the refusal of states to place their names on birth certificates as one of the ways in which states had unconstitutionally refused to recognize their marriages and accord them the same rights associated with different-sex marriages. Gorsuch’s comment is, at least, disingenuous, and at worst, dishonest.
Also a bit odd was his citation of Michael H. v. Gerald D., 491 U. S. 110, 124-125 (1989), for the proposition that “a birth registration regime based on biology” does not offend the 14th Amendment. In Michael H., Justice Scalia wrote for the Court that California had not violated the due process rights of the biological father of a child of a married women with whom he was having an affair by refusing to allow the man to seek parental rights. Under California law, the mother’s husband would be treated as the legal father unless he sought to disclaim parenthood and was vindicated by genetic testing proving he was not the father. The default position under the California statute was that the husband would be deemed the child’s legal parent, regardless of lack of biological connection, even when the married couple were living thousands of miles apart and it was physically impossible for the husband to have impregnated his wife in light of the child’s birthdate. This hardly supports the point for which Gorsuch cited it.
Gorsuch also noted that since this litigation has been under way, some Arkansas officials have come around to agreeing that the birth mother’s spouse should be listed on the birth certificate in an artificial insemination case. Since the state has allegedly de facto agreed (without amending its statute) that it should list same-sex spouses on birth certificates in some circumstances, Gorsuch professed to see no reason for this ruling. “Indeed,” he wrote, “it is not even clear what the Court expects to happen on remand that hasn’t happened already. The Court does not offer any remedial suggestion, and none leaps to mind. Perhaps the state supreme court could memorialize the state’s concession.” Indeed, exactly so, the proper action on remand could be a judicial declaration that same-sex spouses are entitled to be listed on birth certificates of children born to their spouses, and a permanent injunction could be issued requiring that result. This is not superfluous, since the state legislature has not amended the statute and the state could change its informal policy at any time if not restrained by the courts.
On June 29, the Arkansas Democrat Gazette reported that the state’s Department of Health had announced, in response to the Supreme Court’s decision, that married same-sex couples who were issued birth certificates naming only one parent of a child conceived through donor insemination were welcome to apply for new birth certificates naming both parents. Despite this announcement, there was agreement by the parties to the lawsuit that they still needed a decision from the Arkansas Supreme Court on remand to give “clarity” to the situation. Cheryl Maples, counsel for the plaintiffs, saw the Department’s announcement as “progress,” but said, “I don’t want to limit it to artificial insemination. The birth certificate needs to be completely gender neutral. There doesn’t need to be any husband or wife reference in there.” The state solicitor general’s office submitted a letter to the Arkansas Supreme Court suggesting that the court ask the parties to submit briefs explaining how they wished the court to proceed. One possibility would be a remand to the Pulaski County Circuit Court, which had ruled for plaintiffs earlier in the case. A Health Department spokesperson indicated that three couples had contacted the agency seeking amended certificates within days of the Supreme Court ruling, and there would undoubtedly be more. The Department had been issuing birth certificates listing both same-sex parents when presented with court orders showing that children had been conceived by agreement through surrogacy or had been legally adopted by the non-biological parent. The Health Department insisted that any other situation would require further clarification from the courts, and some of the state’s supreme court justices had already expressed a preference for legislative clarification.
The Supreme Court’s decision will likely affect pending litigation elsewhere. In Arizona, the state’s intermediate court of appeals ruled on June 22 in Turner v. Steiner, 2017 WL 2687680, that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the court of appeals, McLaughlin v. Jones, 382 P.3d 118 (2016), which was recently granted review by the Arizona Supreme Court. McLaughlin held that Obergefell governed; Turner, anticipating Gorsuch’s position, insisted that Obergefell simply involved the right to marry and to have out-of-state marriages recognized and did not address the birth certificate issue – a position now repudiated by the Supreme Court. Ironically, the oral argument before the Arizona Supreme Court in McLaughlin was held the day after the Pavan decision was announced. The Turner decision cited the Arkansas Supreme Court’s ruling in Pavan, as well as a Wisconsin Supreme Court ruling from 2015, In re P.L.L.-R., 876 N.W.2d 147. Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, if necessary, but perhaps Pavan v. Smith will encourage state officials to drop their obstructions and accord equal treatment to same-sex married couples through administrative changes or new legislation. The Pavan ruling could also affect litigation in Texas about whether Obergefell requires the state to extend spousal benefits eligibility to same-sex spouses of public employees. Opponents of the benefits have argued that the state has a right to distinguish between same-sex and different-sex spouses in deciding who is entitled to benefits – an argument that seems clearly wrong after Pavan.
The plaintiffs in this case were represented by the National Center for Lesbian Rights, with local counsel Cheryl Maples of Heber Springs, Arkansas. Attorneys from the Washington and Boston offices of Ropes & Gray, LLP, worked on the case in collaboration with NCLR, and R&G’s Douglas Hallward-Driemeier, who shared the oral argument in the marriage equality cases two years ago, was Counsel of Record. He might have argued the case had the Court scheduled a hearing.