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Kennedy Retirement from Supreme Court May Doom LGBT Rights Agenda

Posted on: June 27th, 2018 by Art Leonard No Comments

Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy for President Donald J. Trump to fill with the assistance of the bare majority of Republican United States Senators, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments.  Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.

Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case.   In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination.  Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, leading Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional.

Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people.  (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.)  This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage.

His opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote for five members of the Court that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples.  In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage.  Scalia’s dissent was prophetic, as just two years later the Court ruled in Obergefell that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes.  In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriage unconstitutional.  Kennedy’s vote with the majority in the per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states.

Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a student group that overtly discriminated against gay students.

When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case.  Thus, Kennedy was able to assemble a 7-2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.

Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5-4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).  However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.

While Justice Kennedy’s majority opinions in the major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development.  The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges.  There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.  Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings.  Indeed, three justices dissenting in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan – whether Arkansas had to list lesbian co-parents on birth certificates – and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees.  While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent.

Justice Kennedy’s retirement effective July 31, 2018, seemed to signal a likely retreat from LGBT rights leadership by the Supreme Court. Assuming that President Trump will nominate and the Republican majority in the Senate will confirm a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would most likely be missing, although Supreme Court appointments are a tricky business.  In the past, some presidents have been astounded at the subsequent voting records of their appointees.  President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing.  Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that upheld Georgia’s felony sodomy law, calling a claim to constitutional protection by gay people “at best facetious.”  President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and vigorous dissenter in Bowers v. Hardwick.  President Ronald Reagan appointed Anthony Kennedy assuming he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that joined with the remaining Democratic appointees to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than expected.  Souter was so disillusioned by the Court’s 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely.

In other words, the past records of Supreme Court nominees are not inevitably accurately predictive prologues to how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched over 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service.  Also, the Supreme Court is like no other court in the United States, in which the constraints of precedent faced by lower court judges are significantly loosened, since the Supreme Court can reverse its prior holdings, and in which theories and trends in constitutional and statutory interpretation evolve over time.  The examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out a total surprise appears diminished, but it is not entirely gone.  One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch orbit, although that may be unduly optimistic when it comes to LGBT issues.  In his first full term on the Court, Justice Gorsuch has not cast 100 predictable votes. . .

U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

Posted on: December 5th, 2017 by Art Leonard No Comments

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

Supreme Court Rules that Same-Sex Spouses are Entitled to Be Listed on Birth Certificates

Posted on: June 26th, 2017 by Art Leonard No Comments

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 Supreme Court, voting 6-3 and reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term, which 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 Commissioner of the health department 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.” 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 U.S. Supreme Court agreed with the dissenters, finding this case so clear that 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” (Latin for “by the Court”) without identifying an individual justice as its author.

The 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 Per Curiam Court included all of the justices who had voted in the majority in Obergefell plus Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ vote in this case is notable, given the vehemence of his dissent in Obergefell, but apparently, 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 with it.

Not so the three dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote a dissent on their behalf. 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 Per Curiam 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.  Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.

Gorsuch also noted that since this litigation has been under way Arkansas officials have come around to agree that the birth mother’s spouse should be listed on the birth certificate. Since the state has now agreed (without amending its statute) that it should list same-sex spouses on birth certificates, Gorsuch professes 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 is a judicial declaration that same-sex spouses are entitled to be listed on birth certificates, and a permanent injunction requiring that result. This is not superfluous, since the state legislature has not amended the statute.

The Court’s decision will 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.  The Turner decision cited the Arkansas Supreme Court’s ruling in this case, 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.

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 who might have argued the case had the Court scheduled a hearing.

NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

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.