Justices issued an unsigned order siding with a Pulaski County judge who struck down part of the state’s birth certificate law that defines parents by gender. The state Supreme Court in December reversed that judge’s decision, but the U.S. high court said that ruling conflicts with its 2015 Obergefell v. Hodges ruling legalizing gay marriage nationwide.
“The Arkansas Supreme Court’s decision, we conclude, denied married same-sex couples access to the ‘constellation of benefits that the state has linked to marriage,‘” the court said Friday.
When a married woman gives birth in Arkansas, the state law generally requires the name of the husband appear on the birth certificate regardless of whether he’s the biological father of the child. The same-sex couples want the same presumption applied to the married partner of a woman who gives birth to a child.
The three couples who had sued the state were allowed to amend their children’s birth certificates in 2015 under a ruling issued by Pulaski County Circuit Judge Tim Fox. Two of the three couples asked the U.S. Supreme Court to review the decision.
“They were trying to ignore the U.S. Constitution after the Obergefell ruling and I was just pleased that the Supreme Court isn’t going to allow them to do that,” said Jana Jacobs, who had sued with her wife Leigh over the birth certificate issue. “It makes things for my family and all Arkansas LGBT families much better going forward. We are truly equal as families now.”
When Leigh Jacobs gave birth to the couple’s son in 2015, the couple was issued a birth certificate naming only Leigh as a parent despite listing both parents on the application. Leigh gave birth to the couple’s third child earlier this month, Jana Jacobs said.
Shannon Minter, legal director for the National Center for Lesbian Rights, which had petitioned the U.S. high court along with attorneys for the couples, said similar issues are being litigated in other states but Arkansas was the only court to rule this way.
“The Arkansas decision was an outlier in that regard and I’m very hopeful now that the U.S. Supreme Court has reversed the Arkansas Supreme Court that other state supreme courts will understand that the law really does require equal treatment of same sex married parents,” Minter said.
Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented from the ruling. In the dissenting opinion, Gorsuch wrote that “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”
Monday’s ruling sent the case back to the state Supreme Court. The state Department of Health said it will take information from same-sex couples who want to amend a birth certificate, but was waiting on guidance from the state’s high court. Attorney General Leslie Rutledge, a Republican, said she disagreed with the court’s ruling.
“Nonetheless, the Supreme Court has spoken, and I will continue to review today’s decision to determine the appropriate next steps upon remand to the Arkansas Supreme Court to ensure that the law is followed properly,” she said in a statement.