SCOTUS Extends Homosexual Rights to Include Birth Certificates That Name Unrelated Spouse as Second Parent

A six-justice majority has extended homosexual rights to same-sex couples by ordering the state of Arkansas to allow a non-related or same-sex spouse be named as the second parent on a child’s birth certificate, with Chief Justice John Roberts joining Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, Anthony Kennedy and Stephen Breyer.

Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented in a decision that reverses what until now was a space on one’s birth certificate reserved for the opposite-sex spouse. Both the majority and minority opinions held opposing views on whether the Arkansas law reserves the parental space on the birth certificate for biological parents.

“When a married woman gives birth in Arkansas, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate—regardless of his biological relationship to the child. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage’ … we reverse the state court’s judgment.

“The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”

Writing for the dissenting justices, Gorsuch wrote, in part:

“To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether §20–18–401 of the Arkansas Code, or a state supreme court decision upholding it, must go. The statute in ques- tion establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Oberge- fell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court’s prec- edents suggest just the opposite conclusion.

The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders.”

The question before the court in Pavan v. Smith was “whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.”

In this case, according to court documents, the respondents, who were the plaintiffs in the lower-court action, are three female same-sex married couples and their children. One spouse in each married couple gave birth to a child.

When the Department of Health declined to issue a birth certificate with both spouses listed as parents, respondents filed suit in circuit court seeking a declaration that petitioner’s refusal to issue a birth certificate with both spouses listed violated their constitutional rights, as well as a declaration that certain statutory provisions were unconstitutional. Respondents also sought to enjoin enforcement of petitioner’s policy against naming both spouses on the birth certificate under these circumstances and an order requiring petitioner to issue corrected birth certificates naming both spouses.


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