A Pulaski County circuit judge on Monday ordered the Arkansas Department of Health to amend the birth certificates of the children of three married same-sex couples to include the spouse who is not the biological parent.
But Judge Tim Fox said he was not ready to decide the bigger issues raised by the families in their lawsuit that accuses the Health Department of treating gay parents unfairly when it comes to issuing birth certificates.
That ruling will come in writing in the coming days, he told lawyers at a hearing Monday, saying he needed time to consider their arguments.
The families sued in July, saying the agency's Bureau of Vital Statistics, which issues birth certificates, discriminates against married gay parents because it would not automatically list the nonbiological spouse as a parent on the children's birth certificates.
The families said they were told they needed court orders to add that spouse's name. But Vital Statistics does not have that same requirement for heterosexual couples, they said.
The families said they need the birth certificates to recognize both spouses so they can get insurance coverage for their infants, ages 5 months to 10 months, through the unlisted spouses.
Fox drew a distinction Monday between the plaintiffs, two couples who were married before having a child and a third couple who married after the child's birth.
He said he thought that the birth certificate issue for couples who married before their child's birth had been settled with the May 2014 ruling by Circuit Judge Chris Piazza that declared Arkansas' bans on gay marriage were illegal. The U.S. Supreme Court in June struck down all such prohibitions on same-sex unions nationwide when it recognized marriage as a fundamental right.
That was the argument advanced Monday by the families' attorney, Cheryl Maples, who also represented the plaintiffs in the Piazza case.
She said that lawsuit, filed in July 2013, had specifically addressed the birth certificate issue, though it didn't get as much attention as the overarching question of the legality of same-sex marriage.
Less clear, Fox said, was how the Piazza ruling could be applied to the third family, though he indicated he thought it would also cover them.
Representing the Health Department, Assistant Attorney General Colin Jorgensen told the judge that the third family was being treated like anyone else in their position.
A heterosexual couple who married after childbirth would also need a court order to establish parental rights and to get an amended birth certificate to add the father's name. A birth certificate alone does not convey those parental rights, Jorgensen said.
The Health Department's regulations draw distinctions based on biology, but they do not discriminate by marital status, gender or sexual orientation, even when they use the terms husband and wife, he said. Those terms refer to biological roles, Jorgensen said.
Fox said he had limited authority to act because his job is solely to interpret the laws. It's the job of the General Assembly to make the laws, and legislators have not convened since gay marriage became the law of the land, he said.
The job of the state's executive branch, which includes the Health Department, is to implement the laws produced by the Arkansas Legislature, he said.
The plaintiffs are two Little Rock couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, who had children this year after they were married in other states, and Courtney Kassel and Kelly Scott of Alexander, who married in Arkansas after having a child in January.
A Section on 11/24/2015