The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.
The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.
The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016). In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits. That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell. They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition. They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.
NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination. In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born. In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother. The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.
The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate. That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers. The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly. The trial court refused to stay its decision pending appeal, so the certificates were issued.
The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose. However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons. This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.
The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right. Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children. In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages. Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!
Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry. Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child. By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment. And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws. In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.
NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel. Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case. Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges. GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.