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Arkansas high court rebuffed in birth certificate case

by Lisa Keen

Terrah and Marisa Pavan, with their daughter, Tucker.<br>Photo: Courtesy NCLR
Terrah and Marisa Pavan, with their daughter, Tucker.
Photo: Courtesy NCLR  

The U.S. Supreme Court reversed the high court in Arkansas, ruling Monday that birth certificates of children of same-sex couples need to list both parents.

The notice came in an unsigned (per curiam) decision. Justice Neil Gorsuch dissented (joined by Justices Clarence Thomas and Samuel Alito), and appeared to object only to the method of the decision, not the result.

The decision reversed an opinion of the Arkansas Supreme Court that had held that a legal spouse's name could be omitted from her child's birth certificate if she was not the biological mother or her "husband."

The Supreme Court issued the ruling without having heard arguments in the case.

"As this court explained in Obergefell v. Hodges, the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples,'" the Pavan v. Smith opinion noted. Obergefell was the 2015 decision that said states could not ban same-sex couples from obtaining marriage licenses the same as opposite-sex couples.

The case involved two same-sex couples who used anonymous sperm donors to conceive their children. Even though the U.S. Supreme Court had in June 2015 struck down bans against same-sex couples marrying, the Arkansas health department refused to issue the children's birth certificates with the names of both their parents. The Arkansas Supreme Court upheld that refusal.

"The Arkansas Supreme Court's decision, we conclude, denied married same-sex couples access to the "constellation of benefits that the stat[e] ha[s] linked to marriage,'" noted the Supreme Court's June 26 decision. It noted that benefits such as birth certificates were among those the high court explicitly included in its Obergefell decision.

Susan Sommer, associate legal director for Lambda Legal Defense and Education Fund, called the Pavan decision a win "for same-sex couples and their families across the nation."

"The Arkansas Supreme Court's decision flew in the face of Obergefell, undermining the dignity and equality of LGBT families and the government's obligation to protect children," said Sommer. "It was also an outlier; every other state that had considered this question, got it right, and ruled in favor of treating LGBT families equally. The historic ruling in Obergefell explicitly tells us that the spouses of birth parents, regardless if they are of the same sex or different sex, must be listed on the birth certificates of their children. Obergefell is crystal clear: marriage is marriage, and equal is equal. We congratulate our colleagues at National Center for Lesbian Rights on this great victory."

NCLR, which represented the families in the case, along with Arkansas attorney Cheryl Maples and Ropes & Gray LLP, praised the decision.

"We are grateful to the court for sending a clear message that it will not tolerate attempts to flout the court's clear holding in Obergefell that married same-sex couples must be given the full panoply of protections tied to marriage under state law," Catherine Sakimura, NCLR family law director, said in a statement.

 

Other cases

In another case with implications for the LGBT community, the court said Missouri could not exclude a nonprofit school from a state program just because a church ran the school. LGBT activists had argued the school should be denied state funding because the school exercised its religious beliefs against homosexuality and against other religions in determining which children it would exclude.

But in a 7-2 decision, the majority of the court, including pro-LGBT moderate Justices Anthony Kennedy and Elena Kagan, said the state's denying funding to a school that "would have received [a state grant] but for the fact that Trinity Lutheran is a church" violates the free exercise clause of the First Amendment. The decision came in Trinity Lutheran v. Comer.

Lambda Legal had submitted a brief in the case, noting that the school's policy allows discriminating against students and parents based on sexual orientation and even based on religion. So, requiring the state to provide funds to the Lutheran school would have the effect of the state supporting discrimination based on sexual orientation and religion.

"When government provides aid to religious schools and other entities, it must do so with safeguards ensuring that these institutions neither discriminate based on religion nor use the funds to inculcate religion," wrote Lambda Legal.

Finally, the U.S. Supreme Court announced Monday it would review a lower court ruling in Masterpiece Cake v. Colorado, a case involving a baker who refused to sell a wedding cake to a same-sex couple, claiming it violated his religious beliefs.

Wedding cake baker Jack Phillips and his Masterpiece Cakeshop in Lakewood, Colorado, agreed to sell various baked goods to a same-sex couple, but not a wedding cake. Phillips claimed his religious beliefs opposed marriage for same-sex couples.

The couple filed a complaint with the Colorado Civil Rights Division, which agreed that Phillips had violated the state law barring sexual orientation discrimination in public accommodations.

Phillips appealed through the state court system, which ruled against him. The Colorado Supreme Court refused to hear his appeal. But the Alliance Defending Freedom took the case to the U.S. Supreme Court last year.

The ADF's petition to the high court argued that Phillips' Christian belief "compels him to use his artistic talents to promote only messages that align with his religious beliefs." By ordering Phillips to create a wedding cake for a same-sex couple, said ADF, Colorado is violating the First Amendment's guarantee of freedom of speech and "targets Phillips' religious beliefs about marriage. ..."

James Essex, head of the American Civil Liberties Union's national LGBT project, said, "The law is squarely on [the same-sex couple's] side because when businesses are open to the public, they're supposed to be open to everyone."

"While the right to one's religious beliefs is fundamental, a license to discriminate is not," Essex added.

The case is similar to one out of New Mexico in 2013, Elane Photography v. Wilcox. In that case, the photographer, also represented by ADF, said her religious objections to homosexuality should trump the state's interests in eradicating discrimination against LGBT people. She said the First Amendment guarantee to freedom of speech should protect her ability to express her beliefs. The Supreme Court declined to hear the photographer's appeal.

The Masterpiece Cake case likely will be heard in October.

 

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