Marisa and Terrah Pavan were two of the four plaintiffs in the birth certificate case where they prevailed at the US Supreme Court. | FACEBOOK.COM
In the final day of its term, the US Supreme Court ruled that 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.
The 6-3 ruling in Pavan v. Smith on June 26 reversed a decision by the Arkansas Supreme Court, and came on the second anniversary of the high court’s Obergefell v. Hodges marriage equality decision, which provided the basis for this latest LGBTQ rights victory. (June 26 is a big day in LGBTQ jurisprudence, with the victory over the Defense of Marriage Act in US v. Windsor coming on this date in 2013 and the Lawrence v. Texas sodomy decision having been announced exactly 14 years prior to Pavan.)
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, and each had 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.
Arkansas high court decision overturned, with telling dissent by Justice Neil Gorsuch
The Arkansas Health Department argued that this was compelled by a state law providing that when a married woman gives birth, her husband will be listed on the birth certificate. This “parental presumption” means that even if a woman conceives through donor insemination or gets pregnant by another man, her husband is recognized as the child’s father.
Incredibly, the Health Department justified its refusal to name both mothers on the birth certificates by saying the certificate’s purpose is to record biological lineage, even though the state pointed to a law requiring that the husband be listed regardless of whether he is biologically related to the child. And, Arkansas issues amended birth certificates when children are adopted, listing their new legal parents, who one assumes would not be biologically related to the children.
The women sued, and 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.”
The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying its biological lineage argument.
“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,” the state high court wrote, and so was not inconsistent with Obergefell.
The dissenters on the Arkansas Supreme Court, in contrast, wrote 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 on the US Supreme Court agreed with the Arkansas dissenters, finding the case so clear it simultaneously granted the petition for review and issued a decision, without waiting for briefing on the merits or oral argument. The decision was issued “Per Curiam,” without identifying an individual justice as its author.
The six-member majority 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. Noting that birth certificates are “used for important transactions like making medical decisions for a child or enrolling a child in school,” the high court concluded that “Obergefell proscribes such disparate treatment” as the Arkansas policy creates.
The majority pointed out that the Obergefell decision specifically 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’s opinion, 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 also specifically rejected Arkansas’ argument about biological lineage, citing as a prime example the parental presumption in cases 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,” the court found. “Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”
The six-member majority included all five justices who supported the Obergefell decision plus Chief Justice John Roberts, the principal dissenter in the 2015 marriage case. Roberts’ vote here is notable, given the vehemence of his dissent in Obergefell. It is apparent that he now accepts that ruling as precedent with which the Arkansas high court decision was inconsistent.
Not so the three dissenters — Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote the dissent on their behalf. When Gorsuch was nominated, it was predicted he would be as bad for LGBTQ 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,” and he did not view it as clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate when they were justified by a policy of recording biological ties.
Gorsuch took the narrow view of the 2015 marriage ruling that some lower courts have adopted 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 majority’s opinion demonstrated. Requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father clearly does not “ensure” that the biological parents of a child are listed on the certificate. In fact, as the Per Curiam opinion noted, if the biological father of a child is not the mother’s husband, he can be listed on the birth certificate only if he, the husband, and the mother all agree in sworn statements.
Gorsuch also noted that Arkansas officials now agree that a birth mother’s female spouse should be listed on the birth certificate — though state law has not been amended to reflect that change in policy — and so the newest justice professed to seeing no reason for the court’s ruling.
“It is not even clear what the Court expects to happen on remand [to the Arkansas courts] that hasn’t happened already,” Gorsuch wrote.
The proper action on remand, in fact, is an Arkansas judicial declaration that same-sex spouses are entitled to be listed on birth certificates and a permanent injunction requiring that result, something that is not a superfluous step, since the State Legislature has not amended the statute.
The Supreme Court’s ruling will affect pending litigation elsewhere. In Arizona, a panel of the state’s intermediate court of appeals ruled on June 22 that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the same court. The issue was recently granted review by the Arizona Supreme Court.
The Arizona panel that ruled against the lesbian co-parent on June 22 cited the Arkansas Supreme Court’s ruling as well as a 2015 decision by the Wisconsin Supreme Court. Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, though perhaps this new ruling will convince state officials there to drop their obstruction and accord equal treatment to same-sex married couples.
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, one of the attorneys who participated in the 2015 oral argument in the marriage equality cases, was counsel of record here, and might have argued the case had the Supreme Court scheduled a hearing.