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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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Archived Comments

  • RobertBolt
    November 28, 2017 at 7:13 a.m.

    I hope the homophobes can understand a birth certificate does not establish biological parentage.

  • MS6321
    November 28, 2017 at 8:11 a.m.

    BOLTAR The word "homophobe", literally a fear of homosexualuality, is usually a misnomer used for everyone who disagrees with the homosexual lifestyle. Fundamentalist Christians literally believe the bible is the word of God. They (we) are not afraid of deviant behavior, but simply believe that sin, of every kind, is an affront to our Creator and our Savior who gave His life for us. As far as birth certificates are concerned surely everyone knows that the name listed as the "father" does not have to be the biological father.

  • RBear
    November 28, 2017 at 8:16 a.m.

    smmlv3, and yet Christ specifically spoke against divorce. So when you say you "simply believe that sin, of every kind, is an affront to our Creator" yet condone divorces to the point of allowing them to be legally granted, you're playing the typical hypocritical role of right wingers on this issue.

  • hah406
    November 28, 2017 at 8:35 a.m.

    FYI smmlv3, I don't have a "lifestyle." I have a life. I was born this way, just as God made me, and we are both good with it. Read Matthew, Mark, Luke, and John really closely. You will find that while Jesus spoke out against a number of sins and issues, he never once spoke about homosexuality. Don't you think if it was that important, the Son of God would have mentioned it sometime during those 33 years on earth?

  • RobertBolt
    November 28, 2017 at 9:03 a.m.

    You guys immediately begin invoking your imaginary friends. A more substantive conversation remains possible if you focus on reality.

  • PopMom
    November 28, 2017 at 9:31 a.m.


    I am a Christian, but I do not believe that every word in the Bible is literal and the word of God. How do you account for the different versions and translations? Also, you are ignoring much scholarship and history about how the Bible was put together by different authors in different centuries, translated, and edited etc. In any event, we do have separation of Church and State in this country. You fundamentalists do not get to hoist your ill considered hatred on the rest of society.

  • Whippersnapper
    November 28, 2017 at 9:55 a.m.

    The real issue here is that a Pulaski County Circuit Judge is, in his ruling, declaring that the State Supreme Court ruling is wrong because it disagrees with him. Whatever your position on the issue of homosexuality or birth certificates, this is a major breakdown in the state judiciary.
    The easy fix would be to change the law to state that the two people on a birth certificate are the biological mother and father, and allow for openings for other parents. Child X is born, you list the biological mom and dad (to the best of your knowledge) for the real and legitimate purpose of identifying blood relatives (which has lots of health and other logic behind it) and you also leave the possibility of other parents (for adoption, homosexuals, etc.)

  • RobertBolt
    November 28, 2017 at 9:57 a.m.

    Unless America is a theocracy ruled by your interpretations of second-hand claims attributed to a flying Jewish zombie wizard (or other imaginary friend), the most pertinent arguments are Constitutional. We know the answer to the relevant point and require no superstituous drivel.

  • Vickie55
    November 28, 2017 at 10:05 a.m.

    Whipper, the only flaw with that plan is that some birth parents don’t want their children to know who they are. That would make confidentiality impossible

  • Packman
    November 28, 2017 at 12:02 p.m.

    Judge Fox in this ruling comes across as an arrogant jerk. Does anyone know if Fox is a member of the gbltqiawtf community? He seems to lack any objectivity on the subject and it might be due to some personal interest overriding judicial restraint.
    Hey Pop - I see you're one of those Cafeteria Christians - the Bible is merely a buffet where you pick and choose what you believe.
    Hey Boltar - I hope the heterophobes can understand it's impossible for two biological men or two biological women together to make a baby.