NCLR, Ropes & Gray Petition U.S. Supreme Court; Challenge Arkansas Decision Denying Rights of Same-Sex Couples to Both Be Listed on Children’s Birth Certificates

The National Center for Lesbian Rights, together with Ropes & Gray LLP and Arkansas attorney Cheryl Maples, have asked the U.S. Supreme Court to review an Arkansas Supreme Court decision denying equal treatment of children born to married same-sex parents. In Pavan v. Smith, the Arkansas Supreme Court prohibited the Arkansas Department of Health from issuing birth certificates that list both spouses as parents when a child is born to a married same-sex couple. The Court held that it is not required to treat married same-sex couples equally to opposite-sex spouses with respect to the right to be listed as parents on their child’s birth certificate.

The petitioners in the case are two married same-sex couples who each live in Arkansas with children conceived through anonymous donor insemination. When their children were born, each of the couples asked to have both parents listed on the birth certificate, but were denied that right, receiving birth certificates that listed only one parent. Arkansas law states that when a married woman gives birth, her husband must be listed on the birth certificate regardless of whether he is genetically related to the child. Arkansas law also provides that when a married couple uses donor insemination to have a child, both spouses are the child’s legal parents.

The trial court ruled in favor of the two same-sex couples, agreeing that the federal Constitution requires equal treatment of all married couples and ordering the Department of Health to issue birth certificates listing both parents. In December 2016, however, the Arkansas Supreme Court reversed that decision, holding that the State could refuse to place a birth mother’s female spouse on the their child’s birth certificate because she is not a biological parent. Every other court to consider the issue has concluded that Obergefell requires states to issue birth certificates listing both spouses when a child is born to a married same-sex couple.

In the 2015 case of Obergefell v. Hodges, the United States Supreme Court held that states may not deprive same-sex couples of the fundamental right to marry, including the right to participate in the benefits and responsibilities of marriage to the same extent and on equal terms as opposite-sex couples, including with respect to “birth and death certificates.” As argued in the petition, the ruling of the Arkansas Supreme Court goes against the holding in Obergefell because it denies a benefit of marriage to same-sex couples that is provided to opposite-sex couples.

Douglas Hallward-Driemeier, appellate & Supreme Court partner at Ropes & Gray, argued before the Supreme Court in Obergefell and filed the petition for certiorari in the Pavan. “It is clear that Obergefell confers on married same-sex couples not just some, but all, rights given to married opposite-sex couples as a consequence of their marriage, including the important right to be legally recognized as parents to their children,” said Mr. Hallward-Driemeier.

“If allowed to stand, the Arkansas Supreme Court’s refusal to follow Obergefell will invite officials in other states to do the same,” said Shannon Minter, Legal Director of the National Center for Lesbian Rights. “Rather than treating married same-sex couples and their children equally, as Obergefell requires, this ruling marginalizes these families and deprives them of the security that marriage is intended to provide. We are asking the Supreme Court to put a stop to this dangerous development and send a clear message to other states that Obergefell meant what it said.”

As the petition for certiorari notes, “To permit states to pick and choose which marital protections married same-sex couples and their children may enjoy, based on the same rationales used to justify their exclusion from marriage in the past, would undermine this Court’s precedent and return these families to a caste-like position of official stigma and disfavor.”

The Ropes & Gray team representing the petitioners in Pavan is led by Mr. Hallward-Driemeier, and includes business & securities litigation partner C. Thomas Brown (New York).