How far do new same-sex marriage rights go? Supreme Court considers birth certificates | Arkansas Blog

Thursday, November 3, 2016

How far do new same-sex marriage rights go? Supreme Court considers birth certificates

Posted By on Thu, Nov 3, 2016 at 1:20 PM

click to enlarge A CONCESSION: State Solicitor General Lee Rudofsky said the state will concede some flaw in the state birth certificate law.
  • A CONCESSION: State Solicitor General Lee Rudofsky said the state will concede some flaw in the state birth certificate law.
The Arkansas Supreme Court today heard arguments that began to explore how far the state will go on extending full rights to same-sex marriage couples.

The state is fighting the argument that a presumption of parenthood is owed to married same-sex parents of a newborn. The state says it's common sense: One parent in a same-sex couple clearly cannot be a biological parent. Solicitor General Lee Rudofsky argued there was no discrimination in this between gay and straight couples.

Arguments were heard in the case of same-sex married couples trying to get the names of both parents on a birth certificate without a court order. Circuit Judge Tim Fox has held parts of the birth certificate law unconstitutional.

The state concedes that  a portion of the law is clearly unconstitutional — treating heterosexual married couples differently than same-sex married couples in artificial insemination cases. A "husband" is presumed and listed as a parent in such cases, but a female in a same-sex couple is not. In that case, the law could easily be changed to provide parenthood for the "spouse," Rudofsky said. The state said it was prepared to concede parenthood to both parents if married before a child is born. But the state argued that Fox had taken an "ax" rather than a "scalpel" in endeavoring to rewrite further parts of the law.

There was some lack of clarity in arguments about whether the state was also conceding parenthood to a same-sex parent who was not married when a child was conceived, but later married.

The state argues that biological parenthood is an important part of the record because children may  need to know the information for medical or other reasons and records of that should be kept, even if sealed after new birth certificates are issued.

The key question today was whether the court or the legislature should rewrite the law. Easy answer from where I sit:

1) The legislature should write the law.

2) But if the legislature won't write laws that provide equal protections, the court must act.

Cheryl Maples, attorney for same-sex couples seeking to be on birth certificates, commented: "If we wait for the legislature to take necessary steps, we may never see those changes."

Maples also said hospitals that don't question parenthood of heterosexual couples in filling out birth certificates were sometimes not allowing same-sex couples equal treatment. The state's lawyer says the Health Department is not telling hospital how to fill out certificates when faced with a same-sex couple.

Given the recent history, evidence is on Maples' side about the legislature. Its work includes two new statutes aimed at allowing legal discrimination against gay people.

Rudofsky said the legislature should be allowed a first crack at fixing the law. And if they don't get the job done? "If there's a second case, you might find yourself in a different position," Rudofsky responded.

In June 2015, the U.S. Supreme Court legalized same-sex marriages. To date, the state of Arkansas legislature has done nothing tangible to insure that same-sex married couples are treated equally beyond being allowed to marry. Until it shown otherwise, you have to presume the legislature will continue to resist. Indeed, Justice Courtney Goodson asked: "What took you so long?" Rudofsky said the Health Department couldn't act without legislature guidance. But he also said the three plaintiffs in this case had gotten on birth certificates in "some short order" without state objection. Justice Rhonda Wood noted the legislature has had special session and this issue clearly "hasn't been a priority."

Sooner or later, I predict the Arkansas Supreme Court will have to get big-boy and big-girl pants on with the legislature. But Chief Justice Howard Brill was also right that the situation is far more complicated than the case Maples presented. Think, to name one, of a surrogate mother pregnant by the male of a same-sex male couple. Rudofsky said the statutes continue numerous references to husbands and wives and father and mothers and it's a "deep dive" to address them all. He also resisted a sweeping interpretation of the same-sex marriage ruling by the U.S. Supreme Court. He said, for example, he didn't think it meant a same-sex parent "had to be on a birth certificate."

Watch today's arguments at this link.

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