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Arkansas treats children of same-sex couples differently from other kids 

With the legislature refusing to correct the law, the fight is headed to the U.S. Supreme Court.

click to enlarge STILL SEEKING EQUALITY: Jana Jacobs plans to take her fight to the U.S. Supreme Court in light of the Arkansas legislature's inaction.
  • STILL SEEKING EQUALITY: Jana Jacobs plans to take her fight to the U.S. Supreme Court in light of the Arkansas legislature's inaction.

Jana Jacobs and her wife have been together for 14 years and are raising two boys together in Little Rock with a third child on the way. Like many other children across the state, the boys were conceived with the assistance of artificial insemination. But because Jacobs is married to a woman, Arkansas required her to adopt the children before placing her name on her sons' birth certificates. She'll have to go through the same ordeal after her daughter is born.

When the U.S. Supreme Court struck down bans on same-sex marriage in June 2015 in Obergefell v. Hodges, its conclusion was clear: Same-sex couples are entitled to the same rights and benefits of marriage as their heterosexual counterparts. Yet even now, Arkansas is dragging its heels in complying with the court's decision when it comes to the issuance of birth certificates. A heterosexual, married couple who have a child through means of artificial insemination or surrogacy are automatically presumed to be the child's parents, and they are listed as such on the child's birth certificate. The same presumption is not accorded to the child of a same-sex married couple that used identical assisted reproductive measures.

Arkansas is the only state in the nation that continues to deny same-sex couples this basic benefit of matrimony, according to LGBT advocates.

That status quo will stand for now. On Monday, the Senate Judiciary committee rejected a bill from Sen. Joyce Elliott (D-Little Rock) that would have fixed the issue by changing the word "husband" to "spouse" in the state statute dealing with artificial insemination and surrogacy. Despite testimony from Jacobs and others, four Republican senators stood in the way of the bill's passage.

Elliott tried to convince the committee that Senate Bill 580 should be seen as a matter of bringing the state into compliance with federal law — and of simple fairness in treating children of same-sex couples no differently from other children. She said the bill was "family-friendly" and would allow "those families to take responsibility fully, like any of the rest of us should."

Jacobs later explained why that was necessary, for reasons both material and not. "I wanted to make sure [my children] had the health care, financial support — any benefits that would arise from my death or disability. I also never wanted my kids to think that there was anyone absent from their life. They were born into the exact family that they were intended to be in. And a birth certificate with both of our names would make that clear not only to them, but to anyone who would require such a document."

Although she has legally adopted her two boys — and plans to adopt the child still on the way — Jacobs noted that "having a birth certificate with both intended parents would give families immediate relief without having to worry that their children are being left unprotected for any amount of time. A birth certificate could provide much needed security during our often lengthy and costly process of adoption." Without her name included on their birth certificate, she said, "my children could lose many of the benefits that are afforded by marriage, such as my social security benefits, inheritance, life insurance benefits, child support, health insurance, the ability for me to make decisions regarding their medical care, and more."

Without the fix provided by Elliott's bill, Jacobs said, "the state is unduly illegitimizing my children."

Also speaking for the bill was Allison Koile, a Little Rock lawyer who said she's been hired by five same-gender couples to get both parents' names listed on their children's birth certificates. Not only is this inequitable, she argued, it's an unnecessary use of legal and court resources. "I've even had judges say that they should be spending their time on other types of cases, rather than having to hold a hearing and produce an order for something that could have been and should have been resolved already," she said. "Regardless of your feelings on same-sex marriage, a yes vote for SB 580 is a vote for equal application of the law."

At the time the bill came up, the committee's chair, Sen. Jeremy Hutchinson (R-Little Rock), was out of the room, and Sen. Linda Collins-Smith (R-Pocahontas) was chairing the committee. Collins-Smith asked Koile, "There are other legal ways to make sure that children inherit their family or friends' belongings, isn't that correct?"

"There is a probate process that can be undertaken, but again, that does occupy the court's time," Koile replied. 

"There are wills and gifting that you can do, so there are other options, correct?" Collins-Smith asked.

Koile acknowledged that was the case: "There are also trusts, but these are all expensive options. ... Inheritance as a right is guaranteed for children that are recognized by the state."

In closing, Elliott pushed back against Collins-Smith's line of questioning. "It is absolutely true that there are other ways ... so that children have their rights ... but neither my child nor your child nor anybody's child sitting around this table has to do that. Our kids don't have to do that. But we ask these folks sitting here, this woman sitting here and her family ... to have to have the money to go to probate court ... and get the same rights that we expect for our kids? ... It is not a law about the morality of marriage of any kind. It's just simply: Are your kids equal to our kids? Are we willing to say to their kids that they are not equal to our kids?"

Most senators in attendance seemed unwilling to say anything at all. Sen. Will Bond (D-Little Rock) moved for passage of the bill, but the motion failed for lack of a second; aside from Collins-Smith, the others in attendance were Sens. Bryan King (R-Green Forest), Gary Stubblefield (R-Branch) and Terry Rice (R-Waldron). (Elliott is not a member of the Judiciary committee.) Supporters of the bill told a reporter after the meeting that they believed Hutchinson's absence was not intentional, as he had voiced support for SB 580 when it came up for in committee previously.

Meanwhile, the matter is pending before the U.S. Supreme Court. Cheryl Maples, an attorney for Jacobs and other couples, previously sued the state for its refusal to add same-sex parents' names to birth certificates. Pulaski County Circuit Judge Tim Fox ruled in the plaintiffs' favor, citing Obergefell — but the Arkansas Supreme Court reversed Fox's order, saying the state law on artificial insemination and surrogacy was simply about the biological fact of parentage, rather than an abridgement of same-sex couples' marriage rights.

Maples and others point out that there's no such problem recognizing parentage in other cases. "Birth certificates are not meant to reflect biology. When you adopt a child, you are on the birth certificate. ... It's meant to reflect parental rights and responsibilities," Maples told the Arkansas Times. "I've run into this many times in my 30 years of law practice — men saying, 'I'm the father of this child,' and the mother says, 'Yes, he's the father,' but he wasn't [biologically]. There didn't have to be any DNA test. If he signs a paper saying he's the father, he's entitled to be on the birth certificate."

She also noted that in oral arguments at the Arkansas Supreme Court, "the [state] solicitor general stated that denying same-sex couples the right to be on the birth certificate under the assisted reproduction statute was constitutionally suspect. He was basically saying that that [statute] needs to be changed, but it's up to the legislature. And the Arkansas Supreme Court said, 'It's up to the legislature.' "

With the legislature unwilling to act, that leaves Jacobs and others with one option: the federal courts. In February, Maples filed a petition for a writ of certiorari with the Supreme Court; she was joined by the D.C. firm that brought the Obergefell case before the justices in 2015 and the National Center for Lesbian Rights. After the state of Arkansas responds, the court may decide to hear the case, grant summary judgment to the plaintiffs or simply decline to accept the cert petition. (If that happens, Maples said, she'll file a separate federal lawsuit.)

Maples is cautiously optimistic, noting that the opinion in Obergefell explicitly references birth certificates. "It says in the decision that same-sex couples are entitled to all the rights and privileges of marriage, including death certificates, birth certificates, enrolling in school — this long list of things. Birth certificates are specifically mentioned ... it's just that the Obergefell decision didn't go into great detail."

National groups have told her that Arkansas is alone in fighting parents over this issue. "There were a couple of legal cases that were resolved in the same-sex couples' favor ... [but] it's never gone above the lower court level in any [other] state. We were the only ones who had to bring it to an appellate court," Maples said. "Most states just accepted it and started issuing the birth certificates."

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