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On appeal, gay pairs lose birth-papers case in Arkansas high court

by John Moritz | December 9, 2016 at 5:45 a.m.

Both people in a same-sex relationship do not have the same right to have their names appear automatically on their children's birth certificates as some heterosexual partners do, the state's highest court said in a split ruling Thursday.

The court reversed and dismissed a decision by Pulaski County Circuit Judge Tim Fox, who struck down part of the state's birth certificate statutes last year in a lawsuit filed by three lesbian couples alleging equal-protection violations by the Arkansas Department of Health. The department had refused to issue them birth certificates naming two mothers. Instead, the original birth certificates listed the woman who gave birth to the child and no father.

The state appealed Fox's ruling, and in its 6̶-̶1̶ split* decision, the Arkansas Supreme Court said the statutes were not discriminatory because they reflect the Health Department's interest in recording biological lineage, not the sex of the parent.

A lawyer for the couples said the law, Arkansas Code Annotated 20-18-401, forced them to go through the process of legal adoption in order to have all members' names included on amended birth certificates.

While a married mother and father would automatically be included on their child's birth certificate -- unless a different paternity is determined -- doing so for a same-sex married couple fails "to acknowledge basic biological truths," Justice Josephine Linker Hart wrote in her majority opinion.

Unmarried heterosexual couples have to submit an affidavit, but not test results, on the paternity of the baby.

A spokesman for Attorney General Leslie Rutledge said in a statement Thursday that she was "gratified" by the court's decision.

"If any changes are appropriate it is the job of legislators to do so, not the circuit court," her spokesman, Judd Deere, said.

Marisa Pavan, who with her wife, Terrah, is a member of one of the couples in the case, said she wasn't surprised by the high court's decision, but it still comes as a blow.

"It's upsetting having to take it all the way to this point and either having to go back to the [federal] appeals court or the U.S. Supreme Court," Pavan said.

The attorney for the six women, Cheryl Kathleen Smith Maples, promised shortly after the opinion was released that she would keep fighting in court.

She said the mostly likely option would be taking the case to the U.S. Supreme Court but she had yet to discuss the outcome with her clients.

Each couple in the case conceived a child through artificial insemination. Two couples were married at time of their child's birth, but the woman who didn't give birth was not added to the birth certificates.

The third couple had a child first and then wed in July 2015 in Arkansas after the U.S. Supreme Court legalized same-sex marriage in all 50 states, but the two couldn't get an amended birth certificate without adoption papers.

The couples argued in their lawsuit that the U.S. Supreme Court decision in Obergefell v. Hodges, the same-sex marriage case, as well as a subsequent ruling by the Arkansas Supreme Court to allow gay marriage, extended to them the same rights given to all married couples.

Maples said it was unconstitutional to require the couples to go to a court to prove their parenthood, while heterosexual couples are not required to prove biological parenthood.

"I don't know how the [U.S. Supreme Court] could be more clear on what their intent was," Maples said. "This decision is in error."

In addition to overturning Fox's ruling, the majority opinion admonished him for "inappropriate remarks." Saving the rebuke to the end of her 20-page majority opinion, Hart did not quote Fox but said he said the high court would deprive same-sex couples of their rights by granting a temporary stay on his ruling, which the court eventually did.

"A remark made to gain the attention of the press and to create public clamor undermines 'public confidence in the independence, integrity, and impartiality,' not only of this court, but also of the entire judiciary," Hart wrote.

During oral arguments last month, Arkansas Solicitor General Lee Rudofsky argued that Fox had overstepped his authority by using his interpretation of the Obergefell decision to make broad changes to the state's birth certificate laws.

If the Supreme Court would choose to side with Fox's interpretation that the birth certificate law was unconstitutional, Rudofsky said, the state would not dispute a remedy by which the court, in regard to a separate law dealing with artificial insemination, would change the word "husband" to "spouse," allowing any married couple using the procedure to have both parents' names placed on a birth certificate without a court order.

Rudofsky likened his proposed approach to "using a scalpel instead of doing what [Fox] did, which was using an ax."

However, the Supreme Court decided that the law concerning artificial insemination, Arkansas Code Annotated 9-10-201, had not been argued by either side in circuit court, and declined to pre-empt the Legislature by amending it.

After the high court granted a stay of Fox's ruling, the Department of Health began advising hospitals to decide internally with their lawyers whether to allow same-sex couples to fill out forms with both parents' names, according to the department's general counsel, Robert Brech.

That means some same-sex couples may have been able to get original birth certificates with both names included, Brech said, because the Health Department generally does not challenge the information sent to them from hospitals.

Maples, the attorney for the couples, said it is unclear whether any hospitals did so.

After obtaining an amended birth certificate to include her name with her first child, Kelly Scott said she and her wife, Courtney Kassell, had to go through the adoption process again with their second child, born after Fox's ruling. Scott and Kassell are one of the three couples who sued the Health Department.

"Even though they may have fixed it in their eyes for us, it hasn't changed anything," Scott said. "I don't want to be listed as the father, I'm not the father, I want to be listed as the parent."

Although he said he was still reviewing the court's opinions, Brech said they seemed to indicate that hospitals should strictly follow the language of the law, which states that a woman using artificial insemination can add her "husband" to the birth certificate.

In a pair of opinions concurring in part and dissenting in part -- one headlined by the lyrics to Bob Dylan's "The Times They Are a-Changin'" -- Chief Justice Howard Brill and Justice Rhonda Wood said the Obergefell decision did make parts of the state law outdated, but not enough to be rewritten by the court.

Beginning his concurring opinion with two stanzas from Dylan's 1964 song, Brill described a series of scenarios in which same-sex and heterosexual couples seek to become parents, and how the law treats the two groups differently.

Legislative or executive branch action is needed to fix the laws, Brill argued, with emphasis using the words of the Nobel laureate.

"The times indeed are a-changin'. All three branches of the government must change accordingly. It is time to heed the call," Brill wrote in his conclusion.

In her concurring and dissenting opinion, Wood also encouraged the Legislature to take action and also dissented with the majority's decision not send the case back to circuit court to reconsider Rudofsky's proposal.

Justice Paul Danielson wrote a strictly dissenting opinion that agreed with Fox's ruling to change birth certificate statutes.

Danielson and Wood also wrote they disagreed with the court's decision to admonish Fox.

A Section on 12/09/2016

*CORRECTION: In a Dec. 8 Arkansas Supreme Court ruling, four justices formed a majority to reverse and dismiss a lower court ruling that both spouses’ names should appear on a child’s birth certificate, even if the couple is of the same sex. One judge disagreed with the majority’s opinion. Two justices wrote their own separate opinions agreeing in part with the ruling, while dissenting on other parts. A previous version of this story described the vote as 6-1. One justice who concurred in part and dissented in part said Tuesday that the vote was 4-3. The other justice said it could be described as a vote of 4-1-1-1.

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