The Arkansas Supreme Court on Friday reversed a lower court’s decision that directed the Arkansas Department of Health to list both same-sex parents on their child’s birth certificate—as would typically occur on birth certificates of opposite-sex couples’ children. This damaging and significant ruling is a blatant attempt to undermine the U.S. Supreme Court’s landmark 2015 marriage equality ruling—despite the fact that in that decision, Obergefell v. Hodges, the nation’s high court specifically listed birth certificates as one of the governmental rights, benefits and responsibilities afforded by marriage.
“What is before this court is a narrow issue of whether the birth-certificate statutes as written deny the appellees due process,” Justice Josephine Linker Hart wrote in the court’s majority opinion. “…In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths,” she claimed.
Cheryl Maples, attorney for the three same-sex couples who filed the suit, said of the ruling, “There’s no requirement that DNA be given or that there be a biological relationship to a child to get on a birth certificate for a father, for the non-birth parent. All you have to do is legitimize the child and you’re entitled, if you’re heterosexual. This is wrong.”
LGBTQ equality advocates across the nation decried the dangerous decision by Arkansas’ top court.
“It is clear that including both married spouses’ names—regardless of whether they are same-sex or opposite sex—on a child’s birth certificate is exactly the kind of benefit of marriage that the U.S. Supreme Court ruled should be extended to same-sex couples,” said Kate Oakley, senior legislative counsel for the Human Rights Campaign. “This disappointing ruling from the Arkansas Supreme Court is a clear violation of equal protection for married, same-sex couples, as affirmed by the U.S. Supreme Court in Obergefell, and it is a deliberate attempt to undermine the rights of couples who have been guaranteed equality under the law when it comes to marriage.”
The Arkansas ruling could spell serious legal trouble for same-sex couples who choose to start families, while their opposite-sex counterparts would, of course, remain unhindered by the decision’s real-world implications. Under the tenets of this ruling, same-sex couples could be forced to enter into legal proceedings to assert parental rights. Conversely, Arkansas law views different-sex couples married at the time of their child’s birth as “presumed parents,” and lists them as such on birth certificates—even in cases where artificial insemination has been used and agreed to by both parents.
According to the Human Rights Campaign (HRC), “Today’s ruling does not clarify whether a same-sex parent married to the biological mother at the time of the child’s birth has a right to be listed on the birth certificate. It would also require same-sex couples married after the birth of a child to seek a court order to have the non-biological parent’s rights recognized.”
Attorney Cheryl Maples has yet to determine if, on behalf of the three same-sex couples she represents, she will appeal the ruling to the U.S. Supreme Court—the next step required to challenge the Arkansas top court’s decision.