Arkansas same-sex parents will not be listed on their children’s birth certificates, the state’s highest court ruled on Thursday. The decision has raised questions about equal protection, and the state may still change its approach.
The ruling by a four-member majority of the Arkansas Supreme Court determined that only biological parents can be listed on a child’s birth certificate. It overturns last year’s decision by a lower court that married same-sex couples could automatically have both spouses listed as parents.
For the state Supreme Court, it’s simply a question of biology. At the same time, marriage allows different-sex couples to be listed as parents, and the US Supreme Court’s ruling on gay marriage may mean that now applies to same-sex couples too. And the debate is complicated by state laws that require parentage to be tracked.
“It is clear that including both married spouses’ names – regardless of whether they are same-sex or opposite sex – on a child’s birth certificate is exactly the kind of benefit of marriage that the U.S. Supreme Court ruled should be extended to same-sex couples,” Kate Oakley, senior legislative counsel for the Human Rights Campaign, said in a press release.
That was the approach taken by Little Rock Circuit Judge Tim Fox in December 2015. Three same-sex couples brought a case arguing that the legalization of same-sex marriage gave same-sex parents the same rights to be identified as parents on their children’s birth certificates that different-sex parents already enjoyed.
For parents, being named on a child’s birth certificate is important for all kinds of reasons, as LGBT news source The Advocate described. Without this legitimization, parents may struggle to put children on their health insurance or even pick them up from school.
When they won their suit, the three couples were granted the right to list the names of both partners on the birth certificates. But the state appealed the decision on the grounds that it was causing legal and logistical problems. Several days after the initial ruling, the Arkansas Supreme Court stayed the decision, preventing it from being extended to other couples.
One possible reason for the issues: birth certificates are woven into legislation and Health Board protocol in the state of Arkansas. Identifying biological parents is an “important governmental objective,” wrote Arkansas Supreme Court Associate Justice Josephine Linker Hart in the majority opinion, explaining that knowing who parents are allows the state to track public health trends and give children genetic information that they might need for medical reasons later on.
But different-sex Arkansas parents aren’t required to prove that they are the biological parents of the child, perhaps limiting the value of state tracking — and raising questions about unequal treatment of same-sex parents.
"There's no requirement that DNA be given or that there be a biological relationship to a child to get on a birth certificate for a father, for the non-birth parent," said Cheryl Maples, who sued on behalf of the three couples, the Associated Press reported.
“The inclusion of a parent's name on a child's birth certificate is a benefit associated with and flowing from marriage," wrote Arkansas Associate Justice Paul Danielson in the dissenting opinion.
The decision may have provided an impetus for the state to make some changes to the law.
“It is time to heed the call” to make changes heralded by decisions like Obergefell v. Hodges, which established the right to same-sex marriage, said Arkansas Chief Justice Howard Brill, according to NBC.
And though some state officials pronounced the state “gratified” that the court had chosen to uphold state law, they suggested that lawmakers might be willing to consider changes. Arkansas has so far been reluctant to amend its laws.
“If any changes are appropriate, it is the job of legislators to do so, not the circuit court,” said Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, AP reported.
As it stands, the ruling would require same-sex parents to obtain a court order if they want both spouses to be listed on a child’s birth certificate. Ms. Maples told AP that she has not yet decided whether to appeal to the US Supreme Court.