Arkansas laws that say who can be listed as a parent on a child's birth certificate do not discriminate by sexual orientation, state lawyers argue in response to three same-sex couples who claim the state Department of Health treats heterosexual parents better than gay ones.
In a petition filed Thursday, the state asked Pulaski County Circuit Judge Tim Fox to throw out a lawsuit by the same-sex couples that seeks to have birth certificates show a spouse who is not the child's biological parent as a parent.
The Health Department is powerless to amend birth certificates outside of legal procedures and court orders, the attorney general's office, acting on behalf of the agency, argues in the petition.
No hearings have been scheduled.
All nonbirth parents, regardless of sexual orientation, have to go through a legal process to be installed on the birth certificates, Assistant Attorney General Colin Jorgensen wrote.
Marriage does not convey a constitutional right to a parental relationship, he states.
The only way the plaintiffs can get what they want without a court order is by changing the laws and regulations governing parental rights, Jorgensen states.
Until that happens, the agency is bound by the rules established by the state Board of Health and the law created by the Legislature, he says.
The couples who filed the suit cannot assert a constitutional violation because they have no such rights to assert over children who are not their offspring through biology or legal process, Jorgenson argues.
The couples sued after the agency refused their requests to add the other spouse.
The changes are necessary, even crucial, so the three infants, each under 6 months old, can qualify for insurance coverage and have an easier time obtaining a Social Security card, among other necessities, the plaintiffs contend.
The matter also could affect a child in need of serious medical treatment, according to the suit.
Represented by attorney Cheryl Maples, who originated the lawsuit that overturned Arkansas' gay marriage ban, the families claim that heterosexual parents are not subjected to the same process that gay parents are to be listed on the birth certificate, which violates the U.S. Constitution.
But that's not true, the state countered in Thursday's response.
Parental rights are established through biology, through legal procedure or through court orders, not simply by whomever the child's parent is married to, Jorgensen contends.
"Plaintiffs' due process argument rests on a false assumption that, because same-sex couples now enjoy a constitutionally-protected right to civil marriage, the adult plaintiffs who are not biologically related to the child plaintiffs have a due process right to a parental relationship with children born 'into the marriage,'" the pleading states.
"Absent a statute establishing a parent-child relationship under these circumstances, an adoption, guardianship, or other court order is generally required in order to establish parental rights, for same-sex couples and opposite-sex couples alike."
The Arkansas Supreme Court has rejected the assertion that a marital relationship alone transmits parental rights to nonbiological parents, Jorgensen states.
And laws that recognize that an emotional relationship between an adult and child can be significant enough to convey parental rights require a judge's affirmation before parentage is established, and only then on a case-by-case basis, he states.
"There is simply no ... authority supporting the argument that the spouse of a child's biological parent has parental rights regarding the child that flow automatically from marriage, without regard to the specific facts of the case and the best interests of the child," the filing states.
A Section on 08/14/2015