June 26 has been called LGBT Equality Day, and for good reason. In 2003, the Supreme Court of the United States (SCOTUS) issued its ruling in Lawrence v. Texas, overturning the Court’s prior decision and effectively decriminalizing love between same-sex partners across the US. Ten years later, in 2013, SCOTUS overturned Section 3 of the so-called “Defense of Marriage Act” (DOMA), requiring the federal government to recognize marriages based on their legality wherever performed. Two years later, in 2015, the Supreme Court issued its landmark ruling in Obergefell v. Hodges, making marriage equality the law of the land.
This year, on June 26, the Supreme Court reversed an Arkansas Supreme Court opinion in a case titled Pavan v. Smith that held that the state was allowed to put only the birth mother on a birth certificate but not her same-sex spouse – although the law required that a different sex spouse be listed, regardless of whether or not he was genetically related to the child.
It is important to note that the Pavan decision was 6-3, with Chief Justice Roberts joining the majority, despite his strong dissent in Obergefell. This demonstrates that he fully understands that, regardless of his personal beliefs, Obergefell – i.e. marriage equality – is the law of the land and states may not diminish or chip away at it by restricting certain benefits of marriage to only different sex spouses. It is also important to understand that the Court felt so strongly that this is settled law that it chose to not even hold oral arguments or ask for briefing from the parties.
The case arose when two same-sex couples, legally married elsewhere but residing in Arkansas, had children in 2015. The state declined to issue them birth certificates naming both spouses as parents (listing only the mother who delivered the child). The women sued. The lower state court agreed with them that refusing to list both parents violated the law under Obergefell. However the Supreme Court of Arkansas reversed this ruling, agreeing with the state’s Health Department that the birth certificate is a record of biological lineage.
This is incredible. The state itself agreed that birth certificates don’t always record biological lineage. The state issues new birth certificates to adopted children, listing their adoptive parents; it issues birth certificates listing the birth mother and her husband, if she conceived using an anonymous sperm donor; it issues birth certificates to a woman and her husband, even if the woman was pregnant by a different man.
Fortunately, the majority of the Supreme Court saw through this weak argument and in turn summarily reversed the Arkansas Supreme Court’s ruling. In doing so, the Court reminded the state (and the rest of the country) that the Obergefell opinion had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage. “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.”
So, June 26 was again a good day for LGBTQ families and those who seek to form them.
But, let’s not forget that three justices dissented. The dissent opinion was written by new Justice Neil Gorsuch and was joined by Justices Samuel Alito and Clarence Thomas.
In his dissent, Justice Gorsuch takes the same path that Arkansas and a handful of lower courts have attempted by narrowly interpreting Obergefell. He argued 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.” But, as noted above, this is clearly incorrect and even disingenuous. Obergefell spoke clearly about birth certificates, and the state itself concedes that biology is not always paramount when it comes to issuing birth certificates. No, rather, this was a clear attempt to whittle down rights to marriage as they apply to same-sex couples. And, Justice Gorsuch has made his position on that subject painfully clear.
The plaintiffs in the case were represented by the National Center for Lesbian Rights, among others. “We are grateful to the Court for sending a clear message that it will not tolerate attempts to flout the Court’s clear holding in Obergefell that married same-sex couples must be given the full panoply of protections tied to marriage under state law,” said NCLR Family Law Director Catherine Sakimura. “Today’s decision means that millions of married same-sex couples across the country can breathe a sigh of relief, knowing that this type of blatant discrimination against their families will not stand. Marriage equality is settled law and protects same-sex parents and their children from discrimination. Arkansas’ blatant refusal to follow Obergefell could not stand.”
Family Equality Council submitted an Amicus Brief (and is grateful to our pro bono law firm, Bryan Cave, for their hard work in drafting and filing the brief) to the Supreme Court in the case, showcasing once again the voices of our children and how important it was to them that both of their parents be reflected on their birth certificate. From our brief (which can be found here):
Denying same-sex spouses the full benefits of marriage – including listing both parents’ names on their children’s birth certificates – is a stark message to children that the government does not consider their parents’ marriage to be the same as the marriages of different-sex couples. Seventeen-year-old J.M. from Kentucky explains: “Having both of my parents on my birth certificate validated the love my moms have for me. And without both parents being on there, that legitimacy would’ve been threatened daily.”
As always, Family Equality Council remains grateful to the children of same-sex parents who are willing to lift up their voices for the benefit of us all.