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Judge: Arkansas birth-certificate system will be shut down if not fixed by Jan. 5

State law found unconstitutional by John Lynch | November 28, 2017 at 4:30 a.m.

Arkansas' birth-certificate system -- deemed illegally flawed by the U.S. Supreme Court -- will have to be shut down unless the lawyers involved in litigation over the process come up with a way to fix it by Jan. 5, Pulaski County Circuit Judge Tim Fox ruled on Monday.

The Arkansas Supreme Court, through a series of legal blunders, has put him in this position, Fox stated in a seven-page order.

The case is now at a "critical juncture," since Arkansas law remains at odds with the U.S. Supreme Court, a situation that cannot continue much longer, the judge wrote.

If the lawyers can't come up with a solution, then the program will be shut down until the Legislature fixes it, the ruling states. Fox had originally set a Nov. 6 deadline.

"This court will have no alternative but to enjoin the issuance of any birth certificates by the [state] until such time as the General Assembly can convene, in either special or regular session, to remove the ... violation," Fox wrote.

An October ruling by the state Supreme Court, described by Fox as a legal error, leaves him little choice, the judge wrote.

"Even though there is Arkansas case law allowing for a less draconian resolution ... that is not now possible" because of the October ruling, Fox's Monday order states.

"The United States Supreme Court has declared portions of the Arkansas statutes addressing issuance of birth certificates unconstitutional. The defendant [Arkansas] cannot be allowed to proceed under a statutory scheme that is unconstitutional."

The case arose from a lawsuit by same-sex couples who wanted both of their names on their children's Arkansas birth certificates.

Fox's ruling reinforces his decision that Attorney General Leslie Rutledge, whose duties include defending state laws, must personally participate in mediation efforts with the plaintiffs rather than solely relying on her assistants to handle the task.

Rutledge's deputies had asked that the Republican, who recently announced her candidacy for a second term, be excused from mediation because she is busy.

Fox acknowledged that Rutledge does likely have a hectic schedule, but he declined to excuse her because so much is at stake. The judge wrote that he wanted to do everything he could to keep from having to shut down the certificate process.

"If the parties are unable to draft acceptable language prior to mediation, it is this court's opinion that before it has to issue the drastic, but required, injunctive relief of halting the issuance of any birth certificates that every reasonable step should be taken to best configure the mediation for a successful resolution," he wrote.

"This court has utilized its discretion in determining that in this particular case, 'every reasonable step' includes the actual physical presence of the attorney general during the mediation."

Arkansas law automatically lists married parents on their children's birth certificates, but only the mother for same-sex couples. Two Arkansas same-sex couples sued the state over the practices shortly after the U.S. Supreme Court legalized gay marriage nationwide in June 2015.

The federal justices struck down the birth certificate law in June as unconstitutionally discriminatory. The case was on appeal after the Arkansas 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 state justices found that Arkansas' birth-records law, Arkansas Code 20-18-401, is not discriminatory because the statute reflects the health department's interest in recording the biological lineage of children, not the sex of the parents.

In his ruling Monday, Fox wrote that the state justices have regularly flubbed legal questions involving same-sex marriage in Arkansas, showing that the court has continuously failed to protect the rights of all Arkansas residents.

"It is clear this case is in its present critical status because of repeated errors by the judicial branch of government ... by the Arkansas Supreme Court," Fox's opinion states. "These repeated errors have resulted in Arkansas citizens being denied their equal protection rights under the United States Constitution. This deprivation has occurred on a daily basis for over three years."

The Arkansas high court has also never acknowledged its errors, Fox wrote.

"As there has to date been no apology to these citizens from the judicial branch of government, this court takes this opportunity to apologize, not just to those who have been directly affected, but to all residents and citizens of the great state of Arkansas," his ruling states. "A deprivation of the constitutional rights of any person is a violation of the constitutional guarantees to which all are entitled.

Fox wrote that he's been forced into threatening to halt the issuance of birth certificates because of the October state Supreme Court ruling written by Justice Robin Wynne that "ignores well-established Arkansas case law."

Wynne's decision imposed restrictions on resolving the lawsuit that mean the only way the sides can fix a solution is to eliminate language in the statute, Fox wrote.

"This means the parties cannot during mediation add any words or language to the subject statutes, they can only use strikeouts to salvage the legislative intent," the order states.

Wynne's majority opinion struck down the solution Fox had crafted, eliminating gender-specific language in the statute, the judge wrote. The ruling described Fox's fix as an "impermissible" violation of the separation of powers doctrine but returned the case to him to rectify.

"Because of the repeated error contained in Justice Robin Wynne's majority opinion, the parties cannot simply parrot back to this court its own previous effort. Whatever the parties can fashion doesn't have to be materially different from this court's previous effort, it just can't be the exact same."

Fox wrote that his original solution was both legal -- supported by years of case law -- and timely, crafting a temporary remedy that would fix the problem found by the federal court until the Legislature can craft a permanent solution.

"Because this court was able to utilize longstanding Arkansas case law to merely strikeout the offending portions of the subject statutes while retaining the original legislative intent in the remainder, this court did not have to consider any further remedy when it issued its original decision," Fox wrote.

"The remaining statutory scheme was constitutional, if somewhat cumbersome, and would have served to allow the Department of Health to issue birth certificates to all citizens in a constitutional manner until such time as the General Assembly had a chance to meet in ordinary session to rewrite the statutes."

A Section on 11/28/2017

Print Headline: Judge: Fix birth recording by Jan. 5

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