On December 8, 2016, the Arkansas Supreme Court injected a bit of sanity into the growing confusion surrounding legal recognition of same-sex relationships. The trend in American jurisprudence for the past five or ten years has been to ignore all differences between same-sex couples and male-female couples in a quest for equality. That is especially true concerning their legal recognition as family relationships.
This week, however, the Arkansas Supreme Court rendered a reasonable opinion in Smith v. Pavan, 2016 Ark. 437 (8 Dec. 2016). The key issues in the case concerned the constitutionality of Arkansas statutes regulating birth certificates for children who are born to married women by means of artificial insemination.
The suit was filed in Arkansas by three married female couples to whom children were born during their same-sex marriages. The Arkansas Department of Health (ADH) declined to put the names of the same-sex spouses (female marriage partners), but did put the birth mothers on the birth certificates. The same-sex couples sued seeking to force the ADH to list the names of both same-sex female spouses on the birth certificates.
The crux of the plaintiffs’ complaint was aimed at provisions of the Arkansas Code Annotated that required the state to list the opposite-sex husband, but not the same-sex wife, of a birth mother as the legal parent of the child born to the birth mother. The plaintiffs argued that such gender-based spousal parentage presumptions violated equal protection and due process guarantees. They relied upon Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015), which held that the right of same-sex couples to marry is a fundamental constitutional right.
The Arkansas trial court agreed with the plaintiffs and ordered the state to amend the birth certificates to list as parents the same-sex female spouses of the birth mothers.
In this appeal, the Arkansas Supreme Court reversed. It dismissed the plaintiffs’ reliance upon Obergefell as dispositive of the case before it. Obergefell dealt with the right of adult same-sex couples to marry. However, the current case concerned parentage, not marriage.
The Arkansas court was correct to distinguish Obergefell and also was correct in its reasons for distinguishing it. Marriage, the subject of Obergefell, concerns adult relationships. Parentage, on the other hand, concerns the well-being of children and the best interests of children is the guiding star and the ultimate concern of the state.
Marriage concerns creating and fostering an adult partnership; but parentage concerns protection of dependent minor children. The state’s parens patriae responsibility to care for the welfare of children drives and determines its policies regarding parentage. Thus, the Arkansas Supreme Court correctly concluded “that Obergefell did not answer the questions presented in this case regarding the constitutionality of Arkansas statutes relating to the issuance of birth certificates.”
The Arkansas Supreme Court also focused on the truthful reality of parentage. The honest “biological nexus of the biological mother and the biological father of the child … is to be truthfully recorded on the child’s birth certificate. [T]ruthful information is required in the application for an initial or amended birth certificate … .”
In also rejecting the plaintiffs’ claims that the Arkansas birth certificate statutes denied them equal protection, the Arkansas Supreme Court quoted from a 2001 decision of the Supreme Court of the United States which declaring that
“[t]o fail to acknowledge even our most basic biological differences—such as the fact that a mother must be present at birth but the father need not be—risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real. The distinction embodied in the statutory scheme here at issue is not marked by misconception and prejudice, nor does it show disrespect for either class. The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.”
Id. citing Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 73 (2001).
The Arkansas Supreme Court correctly rejected claims that the U.S. Constitution mandates treating same-sex couples the same as male-female couples for purposes of parentage on birth certificates. While all lawyers are familiar with the concept of “legal fiction,” to the extent possible the law and lawyers ought to speak the truth, especially about parentage.
The truth is that fathers and mothers have different parenting skills and strengths, and the children benefit most when they have and are raised by both a mother and a father. For Arkansas or any other state to recognize that there are real differences between male-female parents and same-sex parents that are relevant to parentage recognition on birth certificates is truthful and just.
The Arkansas Supreme Court rejected political correctness and got it right in Smith v. Pavan. Well done!
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.