SCOTUS strikes part of AR birth certificate statute because of same-sex marriage

[Joel]

Note: Please refrain from debating same-sex marriage itself in this thread. This case and its reasoning takes for granted that (for better or worse) there are legally-recognized same-sex marriages.

This week SCOTUS struck down a statute that had been upheld by the AR supreme court.
Here is my understanding of the case:

Arkansas had a statute (I'll call it X for short) that says that by default the parents listed on a birth certificate must be biological parents. Additional statutes (Y, Z, etc) modify that by exceptions to X, allowing non-biological-parent spouses to be listed in the case of e.g. artificial insemination, adoption.

The state Department of Health (in violation of statute Y) omitted the spouse on the birth certificate for two same-sex (female) spouses. They sued the director of the Department, and won. The couples in question had babies via artificial insemination, and statute Y says that in that case the spouse must be allowed on the birth certificate. (The statute actually says "husband" but the court said that now has to be interpreted as "spouse".) That was sufficient to resolve that specific case.

But the court went beyond that. The court struck down a part of statute X: a provision that says that if the mother is married to a man, then the law presumes that the husband is the biological father, unless evidence or testimony is presented indicating otherwise. The court said it violated equal protection, presumably because if the spouse is a woman, then the evidence is clear that the woman is not the biological father. (Keep in mind that is overridden by exceptions, such as in the case of artificial insemination where statute Y says that the spouse must then be allowed to be listed.)

The State of AR appealed to the AR supreme court over the striking down of that presumption of biological fatherhood (in the default case where none of the exceptions apply). The State did not challenge the ruling in the specific case; they agreed that the court ruled correctly that statute Y allows same-sex couples to be listed in the case of artificial insemination. The state was arguing only for that presumption of biological fatherhood. The state supreme court upheld the provision as not violating equal protection.

That was appealed to the U.S. Supreme Court. The SCOTUS majority ruled that because exceptions Y,Z,etc. exist that allow spouses who are known not to be the biological father on the birth certificate, that therefore the default presumption of biological fatherhood is unequal to same-sex marriages, and so "The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

In dissent, Gorsuch says: Huh? The judgement of the Arkansas Supreme Court is already not inconsistent with the majority's opinion: "nothing in today’s opinion for the Court identifies anything wrong...in [the state supreme court's conclusion]."

"...the State has repeatedly conceded that the benefits afforded non-biological parents under [statute Y] must be afforded equally to both same-sex and opposite-sex couples. So that in this particular case and all others of its kind, the State agrees, the female spouse of the birth mother must be listed on birth certificates too. Third, further proof still of the state of the law in Arkansas today is the fact that, when it comes to adoption (a situation not present in this case but another one in which Arkansas departs from biology based registration), the State tells us that adopting parents are eligible for placement on birth certificates without respect to sexual orientation.

"Given all this...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."


What you think?

Assuming that the majority decision is correct, I'm not sure what the law should be instead. If the existing law were applied/adjusted such that a female spouse is given the same presumption of biological "fatherhood", then (again applied equally) that presumption would also be subject to challenge. e.g. if the biological father came forward with evidence of paternity, that would overrule the spouse being on the birth certificate, just as would happen in the case of a heterosexual marriage.

Sources:
SCOTUS ruling (and Gorsuch's dissent): https://www.supremecourt.gov/opinion...6-992_868c.pdf
Arkansas State Supreme Court decision that was overturned: http://opinions.aoc.arkansas.gov/Web...lectronic.aspx

[Mountain Man]

FYI, the abbreviation for Arkansas is AR. AK is the short-form for Alaska.

And for the sake of completeness, Alabama is AL, and Arizona is AZ.

[Joel]

FYI, the abbreviation for Arkansas is AR. AK is the short-form for Alaska.

Doh!
Thanks.

[Bill the Cat]

I think the birth certificate should be as forensically accurate as possible. Parents should be biological father and biological mother. If the father is unknown, then UNK should be on the certificate until such time the father is discovered/proven. Sex should remain the biological sex that the chromosomes declare, and in cases like Klinefelter's Syndrome or another genetic abnormality, it should specify that as well.

[Just Passing Through]

There are two laws. X is predominantly about biology and requires two natural parents on the birth certificate. But it allows for assumptions to be made in the case of the father/husband, who could be a biological parent. Y is predominantly about parental rights and establishes situations where a spouse who is certainly not a biological parent should be listed. However, the plaintiffs never argued Y in court, so the court has to make its judgment solely on X.
The state said X was unconstitutional because it treats same-sex couples differently. No, it doesn’t. It simply allows someone who could be a biological parent to be assumed so without any genetic testing. It would be silly to make such an assumption with a second mommy. She can get all of her parental rights from Y, but not from a law whose purpose is primarily about the simplest and most orderly way to determine biological parentage.
The Supreme Court gave summary judgment that the state court was in error. But summary judgment usually implies that the correct answer is obvious. It isn’t. The court judgment also says law X must now give equal rights to same-sex couples. But how does the lower court do that without becoming activist and unilaterally changing the plain and obvious meaning of the law?
Gorsuch isn’t arguing against the outcome of the case, but the lack of either guidance or purpose in remanding it by summary judgment.
Recently a law was passed in Tennessee that says statutes must be interpreted according to their plain and obvious meaning. It was their way of saying, “If the law says ‘Father,’ the courts can’t reinterpret that to mean non-gendered parent.” And they got a lot of flak. But now the Supreme Court seems to be telling Arkansas’ lower courts to find a way to do just that, but don't you dare declare the law unconstitutional. They are ordering the courts to be activist. Their reason? They’d like courts across the country to do the same thing with every law that mentions gender, just feel free to reinterpret it to achieve progressive outcomes without declaring hundreds of individual laws unconstitutional.

[Joel]

I think the birth certificate should be as forensically accurate as possible. Parents should be biological father and biological mother. If the father is unknown, then UNK should be on the certificate until such time the father is discovered/proven. Sex should remain the biological sex that the chromosomes declare, and in cases like Klinefelter's Syndrome or another genetic abnormality, it should specify that as well.

Yes, from reading the ruling, it does seem that one option open to Arkansas is to repeal all the exceptions and only allow biological parents to be listed.

[Teallaura]

Yes, from reading the ruling, it does seem that one option open to Arkansas is to repeal all the exceptions and only allow biological parents to be listed.

Which wouldn't work - there are valid reasons to list the adoptive, not the biological, parents in some cases (esp. where parental rights have been terminated against the parent's wishes). Once they try to shoehorn in the valid exception, the whole thing starts all over.

It looks to be a fairly crappy decision by the Court.

[Bill the Cat]

Doh!
Thanks.

I fixed the thread title for you.

[Bill the Cat]

Which wouldn't work - there are valid reasons to list the adoptive, not the biological, parents in some cases (esp. where parental rights have been terminated against the parent's wishes). Once they try to shoehorn in the valid exception, the whole thing starts all over.

It looks to be a fairly crappy decision by the Court.

I don't think there should be any reason to not list the biological parents. The certificate is not for the parents. It is for the child as a form of legal documentation. Adoptive parents have an adoption certificate (my wife has hers in our firesafe box). I don't think there is any valid reason to deny anyone proof of their biological parentage.

[Psychic Missile]

I don't think there should be any reason to not list the biological parents. The certificate is not for the parents. It is for the child as a form of legal documentation. Adoptive parents have an adoption certificate (my wife has hers in our firesafe box). I don't think there is any valid reason to deny anyone proof of their biological parentage.

Doesn't the birth certificate establish legal rights to the parents? The desire for a certain legal outcome for the adults involved can be at odds with the desire for a child to understand their familial history.

[Bill the Cat]

Doesn't the birth certificate establish legal rights to the parents?

In some cases, yes. Others, no. Like my wife. When her birth father signed over his parental rights to her adoptive parents, his name remained on her birth certificate, but theirs were on the adoption certificate. Like most all legal documents, latter ones typically override earlier ones.

The desire for a certain legal outcome for the adults involved can be at odds with the desire for a child to understand their familial history.

I'm sure it can.