Defending Obergefell in the Face of Continued Resistance to Equality
In 2015, we won a landmark ruling at the Supreme Court that same-sex couples throughout the United States are guaranteed equal access to marriage and to all the rights, benefits and responsibilities associated with marriage.
But opponents of equality have not stopped trying to resist that ruling, and we have seen attempts across the states to undermine what Obergefell so clearly guarantees.
One such attempt has been the refusal of some state governments to list both parents’ names on a birth certificate when a child is born to a married same-sex couple. Although most of these attempts have been blocked by the courts, recently the Arkansas Supreme Court ran with this position and tried to give it substance. The married same-sex couples in the Arkansas case are asking the U.S. Supreme Court to hear their case and reverse that ruling.
This week, GLAD submitted two amicus briefs to the U.S. Supreme Court asserting the right of married same-sex couples to have both parents’ names listed on the birth certificates of their children. GLAD is counsel on one brief, representing 54 family law professors. GLAD is an amicus on the second brief, filed jointly with Lambda Legal.
The briefs argue that an Arkansas State Supreme Court ruling denying married same-sex couples the right to have the non-biological parent listed on a child’s birth certificate when husbands in a different-sex couple are routinely listed as “father” – including in cases involving assisted reproduction – flouts the requirement in both Obergefell and Windsor that same-sex couples have access to marriage and to “the constellation of benefits that the States have linked to marriage,” on the same terms as different-sex couples.
The Arkansas Supreme Court attempted to mask this discrimination by claiming that birth certificates are intended to collect information about biological parents and that biology justifies treating married same-sex couples differently. But birth certificates, in Arkansas as in other states, are in fact important records of legal parentage, not biological parentage.
Not allowing both parents’ names to be listed on a child’s birth certificate causes real, demonstrable harm. It not only bestows a second-class status on those children and their families, it deprives them of many important protections, such as the availability of both parents to make critical or time-sensitive decisions regarding medical care, or access for the child to federal and state-level benefits that might flow through the unnamed parent.
In Arkansas, as in other states, children born into a marriage are presumed to be the child of both parties to that marriage – including in cases where the child was born using assisted reproduction. In singling out same-sex married couples for different treatment, the State of Arkansas is attempting to undermine what is clearly required by Obergefell: that same-sex couples have access to marriage, including all rights associated with marriage, on equal terms.
We are joining the call for the Supreme Court to review and reverse this dangerous Arkansas Supreme Court ruling. The Court must swiftly and clearly reaffirm Obergefell’s clear requirement of equal dignity and equal treatment of all married couples and forcefully remind state legislatures and courts that any actions to the contrary are incorrect and in violation of the clear directives of the Court.
The petitioners in Pavan v. Smith are two married same-sex Arkansas couples represented by the National Center for Lesbian Rights. The Family Law Professors brief was authored by Foley Hoag, GLAD, Joan Hollinger and Courtney G. Joslin of UC Davis School of Law. The joint brief of Lambda Legal and GLAD was authored by Gibson, Dunn & Crutcher.