A judge ordered Arkansas Attorney General Leslie Rutledge and the head of the state Department of Health on Monday to try to figure out how Arkansas' birth-certificate law can be modified to meet constitutional standards, absent a legislative rewrite.
Arkansas law automatically lists married parents on their children's birth certificates but only the mother for same-sex couples, a practice the U.S. Supreme Court has determined illegally favors married heterosexual parents.
The federal high court ordered the Arkansas Supreme Court to issue a ruling that would bring the birth-certificate law into compliance with the U.S. Constitution. Last week, the state justices passed the case back to the 6th Judicial Circuit Court in Pulaski County for the trial judge to figure out a solution. The circuit covers Pulaski and Perry counties.
In a two-page order Monday, Pulaski County Circuit Judge Tim Fox noted "at least one major procedural error" in the state justices' ruling returning jurisdiction to him, even as he ordered Rutledge and Health Department Director Nathaniel Smith to personally participate in mediation to try to reach a solution with plaintiffs' attorney Cheryl Maples.
Fox also set a Nov. 6 deadline, giving the sides two weeks to attempt a solution.
Maples is the Heber Springs attorney for the two married same-sex couples who sued the Health Department over its refusal to list the nonbiological parent on the document.
Maples also originated the 2014 state court lawsuit that challenged Arkansas' gay-marriage ban before the U.S. Supreme Court legalized same-sex marriage nationally. The attorney general's office represented the Health Department in both lawsuits.
The same-sex parents prevailed at a November 2015 trial. Fox ordered the Health Department's vital statistics bureau, which issues and maintains birth records, to list nonbiological marital spouses as parents.
Fox ruled that Arkansas was giving privileges to married heterosexual parents that it was denying to married gay couples. His ruling struck down part of the state's birth certificate statute, finding that the law was unconstitutional under the U.S. Supreme Court ruling that legalized gay marriage nationally.
The Health Department appealed Fox's decision, and the state Supreme Court overturned his ruling in December.
The state high court dismissed the lawsuit with a finding that same-sex parents do not have the same right as heterosexual couples to be listed automatically on their children's birth certificates.
In their split ruling, the justices found that Arkansas' birth-records law, Arkansas Code 20-18-401, is not discriminatory because the statute reflects the department's interest in recording the biological lineage of children, not the sex of the parents.
But the parents appealed that ruling to the U.S. Supreme Court, which summarily overturned its Arkansas counterparts in June.
Like Fox, the federal justices ruled that Arkansas was treating married heterosexual parents better than married same-sex parents, making the birth-certificate statute unconstitutional.
The federal justices noted in their ruling that they had deliberately drawn attention to the birth-certificate issue in their 2015 ruling that found marriage to be a constitutional right.
Parents need accurate birth certificates to get health insurance for their children, obtain Social Security numbers for them and enroll them in daycare or school. Without accurate certification of parentage, non-birth parents can be denied the right to authorize medical care for the child, while children could be denied survivor benefits when the non-birth parent dies, the court ruled.
The federal justices declared that the Arkansas Supreme Court decision overturning Fox's initial order directly contradicts the federal ruling legalizing same-sex marriage.
"Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships," the unsigned opinion states. "The state uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not ... deny married same-sex couples that recognition."
In ordering the parties to attempt mediation, Fox cited Arkansas Code 16-7-202 as his authority to require the sides to try to work out their differences through a mediator.
"It is the duty of each trial and appellate court of this state and each court is hereby vested with the authority to encourage the settlement of cases and controversies before it by suggesting the referral of a case or controversy to an appropriate dispute resolution process agreeable to the parties," the law states.
Fox's order also requires the plaintiff parents -- Marisa and Terrah Pavan of Little Rock and Courtney Kassel and Kelly Scott of Alexander -- to attend the entire mediation session with Rutledge, Smith and Maples.
The parents' recommended solution has been to read the state law as gender-neutral, a position that the majority of Arkansas' justices rejected in returning the cast to Fox. The justices refused to affirm the original circuit court ruling because it was an "impermissible rewriting" of the statute, according to the majority opinion written by Justice Robin Wynne.
Fox noted the opinion in his Monday order and said in a footnote that Wynne had mischaracterized his ruling as rewriting the law. Fox cited case law supporting his argument that he had removed "offending" unconstitutional language while leaving the statute otherwise intact.
The judge ordered the sides to attempt to work out a solution with attorney James Tilley acting as mediator. Last year, Tilley, a member of the state Alternative Dispute Resolution Commission, mediated the settlement that ended a long-running consumer-protection lawsuit involving Marlboro Lights that resulted in a $45 million fund to reimburse Lights smokers.
Metro on 10/24/2017