Arkansas Court OKs Leaving Lesbian Spouse Off Birth Certificate

By Published on December 10, 2016

The Supreme Court of Arkansas ruled late this week that LGBT persons who are married to a child’s birth parent but not biologically related to the child do not have a constitutional right to be listed on the child’s birth certificate.

The plaintiffs were three married lesbian couples. All had children via artificial insemination through anonymous sperm bank donors. In each case, the Arkansas Department of Health declined to list the spouse not biologically related to the child on its birth certificate.

The couples sued, alleging the ADH’s decision violated the same equal protection and due process rights which establish a constitutional right to same-sex marriage. The department argued that state law dictates parental rights are established by biology, not marriage.

Justice Josephine Hart wrote for a five-justice majority that ruled that state law requires the listing of only biological parents, and that the spouse’s interests in being listed on a birth certificate is not a fundamental constitutional right established and protected by the U.S. Supreme Court’s ruling in Obergefell v. Hodges. The key passage reads:

The question presented in this case does not concern either the right to same-sex marriage or the recognition of that marriage, or the right of a female same-sex spouse to be a parent to the child who was born to her spouse. What is before this court is the narrow issue of whether the birth-certificate statutes as written deny the appellees due process. The purpose of the 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.

Chief Justice Howard Brill disagreed with this constitutional finding, and filed a separate opinion that opened with lyrics from Bob Dylan’s 1964 classic “The Times They Are A Changin’.” Though he dissented from the portions concerning constitutional questions, he joined other parts of the ruling. He also suggested that the state legislature amend state records rules to prevent confusion in this area of the law.

Justice Paul Danielson dissented from the ruling in its entirety. In Arkansas, members of the state supreme court are elected in nonpartisan elections (that is, candidates do not run on party lines) and serve eight year terms.

If the couples choose to fight on, they must appeal to the U.S. Supreme Court.

 

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