The U.S. Supreme Court ruling that legalized gay marriage also entitles same-sex parents in Arkansas to have their names placed on the birth certificates of the children born to their unions, a Pulaski County circuit judge ruled Tuesday.
But Judge Tim Fox also acknowledged his ruling can have only limited effect since parental rights are not controlled by names on a birth certificate.
All he has done is put same-sex parents on equal ground as their heterosexual counterparts as far as the issuance of the certificates, the judge wrote.
"Today's decision affords the plaintiffs, as same-sex couples, the same constitutional rights with respect to the issuance of birth certificates and amended birth certificates as opposite-sex couples," he states. "That is the sum total of the legal effect of this decision."
Bringing Arkansas family law in line with last summer's high court decision is a job only the Legislature can do, Fox wrote in his findings, a five-page ruling with a 13-page description of his legal reasoning.
His ruling is in response to a lawsuit by three married same-sex couples who challenged the legality of state laws that do not allow without court order the nonbiological parent's name on the birth certificate of a child born to their unions.
The parents said they needed both spouses' names on the birth certificate to get insurance and other benefits for their babies.
Fox said he hopes his decision will allow the state Board of Health, which regulates birth registration, to be able to sufficiently revise its rules and regulations to pass constitutional muster until lawmakers can rework Arkansas statutes to comply with the federal decision.
"This [ruling] would allow the vital statistics relating to original and amended birth certificates to be made in a constitutional and orderly manner until such time as the General Assembly can address changes to the statutory scheme," he wrote.
The Department of Health already has stated it would appeal his decision. The agency was sued because it's responsible for managing birth certificates.
Asked for comment Tuesday, a spokesman for Attorney General Leslie Rutledge, who represented the department, said she is "reviewing the order and will evaluate how to proceed."
Fox ruled that the U.S. Supreme Court gay-marriage ruling, Obergefell v. Hodges, invalidates a portion of the Arkansas birth-registration statute that defines parenting roles like mother and father by gender.
"Such language categorically prohibits every same-sex married couple, regardless of gender, from enjoying the same spousal benefits which are available to every opposite-sex married couple," Fox's opinion states.
Fox's written ruling also reflected statements the judge made at a hearing last week that the May 2014 ruling by fellow Circuit Judge Chris Piazza striking down Arkansas bans on gay marriage also invalidated portions of the birth-registration statute, just as the plaintiff parents wanted in their lawsuit.
The judge rejected arguments by state lawyers that Piazza's ruling was incomplete because it did not comply with the Arkansas Rules of Civil Procedure. That issue should have been decided by the appeal of the Piazza ruling, but it wasn't, Fox stated.
And that argument was negated when the Arkansas Supreme Court ruled that the justices did not need to decide the appeal of the Piazza decision because the issues it raised were decided by the U.S. Supreme Court legalizing same-sex marriage, Fox wrote.
State attorneys had a chance to argue in June that the federal ruling did not fully resolve the Piazza case, but they did not take it up with the Arkansas high court then, the Fox ruling states.
The opportunity to challenge the sufficiency of the Piazza ruling was lost when the Arkansas high court dismissed the appeal, the judge wrote.
As he did verbally last week, Fox also ordered the Health Department to immediately amend the birth certificates of the children of the plaintiff parents.
The judge wrote that he also would not stay his ruling as state attorneys had wanted.
Any delay would deny Arkansas residents the constitutional rights that were delineated by the U.S. high court's ruling legalizing same-sex marriage, Fox wrote.
"This court ... will not allow its authority to be used to deprive these Arkansans any longer of their constitutional rights," his ruling states.
There is no good reason to delay implementing his order since the U.S. Supreme Court specifically addressed birth certificates in its decision, the judge wrote.
When constitutional rights are at stake, "unnecessary delays" in resolving those issues, like the Arkansas gay-marriage appeal that was never decided by the state Supreme Court, "do not promote societal confidence in judicial decisions," the judge wrote.
"Such delays provide a breeding ground for speculation of political intrigue or other illegitimate reasons for the delay -- whether true or not," the ruling states.
Arkansas residents already have had their constitutional right to marriage "unnecessarily denied" to them by the length of the appeal of the Arkansas gay-marriage decision, the judge wrote.
Fox verbally ordered the Health Department last week to amend the birth certificates for the infant children of the lawsuit's three plaintiff couples.
But the agency had refused, saying his order was unenforceable until it was put in writing and asked him to put his decision on hold.
In his ruling, Fox states that the agency would have to go to the Arkansas Supreme Court to get a stay.
The judge also devoted more than two pages of his written opinion to describing what his ruling can't resolve -- such matters as authorizing medical care for children; obtaining Social Security numbers and passports for them; how to resolve survivor benefits when a parent dies; and the disruption of the parent-child relationship if there's a divorce.
"[This ruling] may create equitable and legal arguments for resolution of issues that involve only the two spouses of the same-sex marriage, such as child support or child custody," Fox wrote. "It does not in any manner resolve the multitude of legal issues that may arise."
Metro on 12/02/2015