Some bad news yesterday: The Arkansas Supreme Court has reversed a lower-court decision and ruled that same-sex spouses do not have a constitutional right to put both their names on their children’s birth certificates.
We cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect.
The case was brought by three married two-mom couples, two who had children after marrying, and one after. All used assisted insemination and an anonymous donor. In the ruling, written by written by Associate Justice Josephine Linker Hart, the Court asserted:
The purpose of the [birth certificate] statutes is to truthfully record the nexus of the biological mother and the biological father to the child. On the record presented, we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.
Additionally, they said:
In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.
It explained further that because the plaintiffs were making an equal protection claim, the defendant (the state Department of Health, which controls Vital Records) must establish that classifying and treating same-sex and different-sex separately “serves an important governmental objective.”
In this instance, the Court said the Department of Health had indeed provided sufficient evidence that “tracing public-health trends and providing critical assistance to an individual’s identification of personal health issues and genetic conditions” was such an objective, and “the means employed—requiring the mother and father on the birth certificate to be biologically related to the child” was “substantially related to the achievement of those objectives.”
The ruling was not unanimous, however. Associate Justice Paul Danielson dissented and Chief Justice Howard Brill and Justice Rhonda Wood dissented in part and concurred in part. Both Brill and Wood called for legislative action to clarify matters and allow the state to conform to the U.S. Supreme Court’s Obergefell marriage equality decision.
Brill even quoted two verses from Bob Dylan’s The Times They Are A-Changin’, including the line, “Come senators, congressmen/Please heed the call.”
The times indeed are a-changin’, All three branches of the government must change accordingly. It is time to heed the call.
“The times indeed are a-changin’,” he wrote. “All three branches of the government must change accordingly. It is time to heed the call.”
Danielson went further in his dissent, saying that Obergefell is even now the determining factor:
The United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status….
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.”
He points out the inequity of the majority’s focus on biological relationships (my bold):
The majority errs in suggesting that the right to be named as a parent on a birth certificate is not a benefit associated with marriage and likewise errs in holding that the specific statutes at issue here focus on biological relationships rather than marital ones. [Arkansas law] provides that the name of the “husband” of the mother shall be entered on a birth certificate as the father of the child, without regard to any biological relationship and on the sole basis of his marriage to the mother—specifically, if he is married to the mother at the time of either conception or birth or between conception and birth. The obvious reason for this is to legitimate children whenever possible, even when biological ties do not exist. Thus, there can be no reasonable dispute that the inclusion of a parent’s name on a child’s birth certificate is a benefit associated with and flowing from marriage. Obergefell requires that this benefit be accorded to same-sex spouses and opposite-sex spouses with equal force.
The majority opinion stands, however. It’s an awful ruling, and we’re still awaiting commentary from our LGBTQ legal organizations on what exactly this means for same-sex couples in Arkansas, and what steps to take if you’re expecting a child. My initial understanding (though I’m not a lawyer) is that while same-sex parents may not have the automatic right to have both their names on the birth certificate, this doesn’t mean they are forbidden to have them there. (Wood observed, “According to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied.”) The case could also be appealed to the U.S. Supreme Court.
Same-sex couples in other states have also had to sue, even after Obergefell, to get accurate birth certificates listing them as parents of their children, but have so far been successful. Most recently, two North Carolina moms won their case; in September, a Wisconsin two-mom couple won theirs.
I’ll point out, as I always do, that even if you can get both of your names on your children’s birth certificates (which brings a host of benefits), LGBTQ legal experts still recommend doing a second-parent adoption. Here’s why. Yes, it’s a pain, financially and emotionally. No, in a just world, we shouldn’t have to do this. At the moment, though, it seems that anything you can do to further secure your family ties is a prudent path.