Attorney Cheryl Maples, the originator of the lawsuit that overturned Arkansas' ban on gay marriage, on Monday sued the state Department of Health because officials have refused to list both parents in same-sex marriages on their children's birth certificates.
Maples argues that the agency illegally favors heterosexual parents despite the U.S. Supreme Court's ruling legalizing same-sex marriage and in violation of due process and equal protection guarantees found in both state and federal constitutions.
The Health Department does not have a good reason to treat gay parents differently, Maples argues.
The 12-page lawsuit filed in Pulaski County Circuit Court comes 2 1/2 weeks after the federal court ruling legalizing gay marriage.
Earlier last month, Maples also won a state-court lawsuit forcing the Arkansas Department of Finance and Administration to recognize gay marriages performed in 2014 in Arkansas during a week-long period that followed a judge's ruling that temporarily blocked Arkansas' anti-gay-marriage laws.
Last month's litigation was aimed at getting spouses who had been married during that May 2014 window qualified through their spouses for insurance and tax benefits.
In the latest lawsuit, Maples represents three couples with infants ages 4 1/2 months to 17 days old who have had the Health Department's vital statistics bureau, which issues birth certificates, refuse to allow the non-birthing spouse to be listed as a parent.
The plaintiffs are asking for an emergency injunction to resolve the lawsuit quickly so the affected children can qualify for coverage on the unlisted parent's health insurance plan.
Without accurate birth certificates, it may be more difficult to get Social Security numbers for the children or enroll them in daycare or school, the suit states. Non-birth parents may be denied the right to authorize medical care for the child and may have difficulties applying for benefits for the child through their employer or a government agency. Children could even be denied survivor benefits in the event of the death of the non-birth parent, the suit states.
The plaintiffs want the presiding judge, Tim Fox, to declare the Health Department's policies illegally favor heterosexual couples and strike the policies down. They say he should also order that state laws relating to the rights of parents in relation to their children be read as gender neutral so they can be evenly applied to all parents.
The suit also wants Fox to force the agency to immediately issue corrected documents to the plaintiffs.
Fox was the judge who in 2004 found that state regulations that barred gays from adopting children were unconstitutional. The Arkansas Supreme Court agreed on appeal, ruling the policy was an effort to regulate public morality, authority that the rule-making Child Welfare Agency Review Board did not have.
According to the lawsuit, each time the plaintiff parents -- Marisa and Terrah Pavan of Little Rock, Leigh and Jana Jacobs of Little Rock, and Courtney M. Kassel and Kelly L. Scott -- sought to have the non-birthing spouse added to the document as a parent, whether it be at the child's birth or after the Supreme Court decision, they were told by Health Department officials that they would have to hire a lawyer and get a court order to add the other spouse's name.
All three couples planned, arranged and financed the child's conception together, intending that both spouses be listed as the child's parents, the suit states.
The Pavans and the Jacobs need the other spouses' name on the certificates to obtain health insurance for their children, according to the lawsuit.
Vital Statistics regularly provides two-parent birth certificates to all children born to heterosexual couples, even those who are not married, regardless of how the child is conceived or whether the father actually has a genetic connection to the child, according to the complaint.
Arkansas Code 20-18-401 requires the inclusion of the spouse on the birth certificate for a child born to married parents unless there has been a prior finding that the spouse is not the parent or the mother provides a sworn statement that her spouse is not the parent.
The same law also allows the birth mother, if unmarried, to add the other parent's name by giving a sworn statement, according to the complaint.
Kerry Krell, a representative of the Health Department, said Monday the agency plans to make the necessary changes to reflect the Supreme Court's ruling.
The rules are complex because a child is involved, she said.
The birthing parents in same-sex unions are in the same situation as a single mother who wants to add her partner to her child's birth certificate after the child is born, which requires a court order, Krell said.
She said the court process is necessary in that situation to make sure that there's not already a person whose parental rights would be disrupted by a change to the document.
Those changes will be crafted by the department with the advice of the attorney general, who acts as the department's lawyer, Krell said. They will take some time and will require approval by the state Board of Health.
"The Board of Health is just the first step" because any change to the rules must next be approved by the Arkansas Legislature before they go into effect, Krell said.
The board, which meets quarterly, will be in session on July 23 but birth-certificate changes are not on the agenda. She said the board could reconvene sooner than its fall meeting if the new rules can be developed by then.
Judd Deere, spokesman for Attorney General Leslie Rutledge, said the attorney general will be defending the Health Department, but that he couldn't discuss the effort to create new rules in the face of ongoing litigation.
Metro on 07/14/2015