In emphatic language, the Supreme Court of the United States Monday reversed the Arkansas Supreme Court’s lopsided decision to deny non-birth parents in a same-sex marriage a place on their child’s birth certificate.
In a per curiam order, not a decision, in Marisa N. Pavan, et al. v. Nathaniel Smith, the six-member majority further staked out the court’s landmark decision in Obergefell v. Hodges (2015) that legalized same-sex marriage nationwide.
“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. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples …. Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage,' id., at _ (slip op., at 17), we reverse the state court’s judgment.”
Joining the liberal bloc — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in the majority were Chief Justice John Roberts and the court’s “swing vote,” Justice Anthony Kennedy.
Fellow Republican appointees, Justices Clarence Thomas and Samuel Alito, along with President Donald Trump’s pick, Justice Neil Gorsuch, disagreed with the order. In fact, Gorsuch wrote the dissent.
“Summary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’ (Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting). Respectfully, I don’t believe this case meets that standard.”
In other words, perhaps the matter should have gotten its due day in court.
He also said, almost as a secondary consideration, that the Arkansas Supreme Court is right in its opinion to wish to treat a birth certificate as proof of genetic lineage, a biological record, and such birth certificates to same-sex couples would not do that, though neither do existing certificates issued by the Arkansas Department of Health to straight couples when the putative father is not the biological one.
The difference of opinion between the federal bench’s order resting the case, and the state Supreme Court’s earlier one supporting the traditional practice, is stark. Little Rock couples Marisa and Terrah Pavan and Jana and Leigh Jacobs petitioned the U.S. Supreme Court after the Arkansas Supreme Court’s decision late last year.
The Arkansas Supreme Court’s majority ruled that “it does not violate equal protection to acknowledge basic biological truths.”
Only two Arkansas justices appeared to believe then that the practice of denying same-sex couples’ wish that both be named on their child’s birth certificate was wrong, and now Chief Justice Howard Brill and Justice Paul Danielson are gone. (Brill was a temporary appointment; Danielson retired.)
Washington lawyer Douglas Hallward-Driemeier was involved in Obergefell, and he was the council of record for the Arkansas couples' petition.
“A summary reversal is really only appropriate in cases where the outcome is already crystal clear based on what the [U.S.] Supreme Court has decided in earlier cases. And, in fact, we were hoping that’s what the court would do in this case because we felt very strongly that Obergefill v. Hodges two years ago … already answered this question,” Hallward-Driemeier says.
In fact, “a number of the couples who were plaintiffs in the Obergefell case were couples whose claims related to birth certificates, as well as death certificates. And so, the court had already looked at that issue, and in the decision in Obergefell, they didn’t just talk about the right to a marriage license. It was the right to equal access to all of the rights and responsibilities and benefits of marital status.”
In March, state Sen. Joyce Elliott (D-Little Rock) introduced a bill that would have corrected the practice. Specifically, the proposed measure would have changed the presumption of parentage under the state's artificial insemination and surrogacy laws. It failed to get enough votes in the Senate Judiciary Committee.
Attorney General Leslie Rutledge declined to be interviewed, but in a brief press statement, she called the majority’s opinion “flawed” and the dissent “well-reasoned.”
‘A PARENT, NOT A STEPPARENT’
Jana and Leigh Jacobs live in a historic home near Central High School. Their second son, Finch, was born the very day of the Obergefell ruling in 2015. His birthday, and that anniversary, also took place Monday.
The Jacobs are listed as Finch’s birth parents, and Marissa and Terrah Pavan are listed as their daughter's birth parents. Both sets of parents applied during a brief period after the Obergefell ruling when the state was acting on the presumption of such changes.
But this time, with Willa, Jana and Leigh didn’t even try to get Jana’s name on their daughter’s birth certificate.
“It’s a very vulnerable kind of feeling, to know that in the eyes of the legal community, that you don’t really matter, you’re a blank space, even though you’ve been with your children from conception through their birth,” Jana Jacobs says.
“Not that I feel any external threats to my claim to them, but, like with Willa, I still don’t have that established — even taking her to the pediatrician last week, I was not able to check her in. Leigh had to add me as someone who’s authorized to take her.”
The couple have two other children, all born to Leigh Jacobs, and she says it hurts that the highest court in the state would so strongly deny her wife the parental rights they extend to men in the same situation.
“It makes you wonder if indeed the Arkansas Supreme Court does, in fact, reflect the mindset of Arkansas as a whole. And if so, then it doesn’t make families like ours feel very happy here, and it makes you wonder if it’s the right place for your kids to grow up, and that’s sad, because we do have great friends here and family who are supportive and wonderful,” she said.
“But you never want your child to be put in a situation where somebody is going to make them feel less-than, or question their family structure.”
Across town Marisa Pavan shushes and shoos three dogs ranging in size from a mastiff to a small dachshund, even as she wants to be quiet because her wife and her daughter, Tucker Ruth, 2, are napping.
She says, for her, it’s a matter of being two parents, like she and her wife are, not a parent and a stepparent, like lesbians have had to do for so many years.
“I mean for me, it was a really big deal. I mean, I was there since before we even thought about having babies. I mean, from thinking about it to making it happen, through all the doctor’s appointments, the hospitalizations. … I could have just been OK with a stepparent adoption. I love stepparents, I have stepparents, they’re wonderful people, but I am not a stepparent. I did not go into this being a stepparent. I wanted to be the only other parent other than Terrah. And I wanted it for other people, because I knew plenty of other parents in this situation.”
Gay marriage may be settled, and now recognizing non-biological parents on birth certificates, but equal treatment is evolving.
It’s not clear if the court’s decision will apply to married men who use surrogate mothers to begin their families. University of Arkansas law professor Danielle Weatherby says there’s still a lot that’s unresolved, but as there are states like Arkansas that wish to test the limits of Obergefell, there will be further clarity.
“I call it a Backlash Narrative. There’s this narrative post-2015 where states opposed to same-sex marriage are pushing the limits to see how far [Obergefell] reaches. We’re going to see all of the implications of marriage equality play out in the courts, and this is one of those implications.”
In fact there’s the case of a Denver-area baker who refused — on religious grounds — a gay couple’s request for a wedding cake.
State commissions and courts in Colorado roundly rejected his claims, but the Supreme Court Monday decided it would hear the case in the fall.
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