In Pavan v. Smith, the Supreme Court summarily reversed an opinion of the Arkansas Supreme Court, which had held that the state could deny married women the right to have a spouse listed as a child’s second parent on the birth certificate if the spouse was female rather than male. The ruling was blatantly inconsistent with Obergefell, which requires that states permit same-sex couples to marry on the same terms and conditions—with access to the same “constellation of benefits”—as opposite-sex couples. The Supreme Court was right to summarily reverse—as it did in a case last year, V.L. v. E.L, involving Alabama’s unjustifiable refusal to give full faith and credit to adoption decrees that recognized a lesbian co-parent as the legal parent of her partner’s three children.
Arkansas law of birth certificates is typical of most states. Under the applicable code provisions, a married woman must list her husband as the second parent of any child born during the marriage. This is subject to a very limited exception that allows his name to be omitted if the wife, the husband, and the putative biological father each submit an affidavit denying the husband’s paternity. Husbands have generally been deemed the legal father of their wives’ offspring, regardless of any biological connection. Studies across many decades suggest that 3-5% of children born to married women are not sired by her husband, thus this rule will usually result in identification of the biological father, but not always.
Moreover, there are two other situations in which the birth certificate will not correspond with biology. One provision of the Arkansas code provides that when a married woman conceives a child with donor sperm, her husband can still be listed as the father on the birth certificate as long as he consented to the insemination. Another provides that adoptive parents can request the issuance of a new birth certificate that includes their names and identifying information, substituted for that of the birth parents, and with no designation to indicate that the relationship is adoptive rather than biological.
These exceptions—and inaccuracies—matter because Arkansas defended its regime on the theory that the birth certificate is designed solely to create an accurate record of biological relationships for purposes of public health and personal identity. But the scheme as a whole makes clear that while birth certificates may reflect a biological relationship between parent and child, they may also reflect a relationship based on consent to parent or adoption, and the documents themselves draw no distinction based on the nature of the parent-child tie. Thus, the right (and indeed obligation) to list one’s spouse as the second parent to a child born during the marriage is a function solely of marital status, as is the right to choose a spouse (with his or her consent) over a sperm donor as the legal father of one’s child.
Arkansas was fighting a seriously uphill battle on this one. Supreme Court opinions are often opaque, leaving legitimate questions about their scope. But on the question whether Obergefell entitles same-sex married couples to all the benefits of marriage—rather than just a marriage license with some or none of the benefits states accord other married couples—there is no room for debate. It was thus curious for the Arkansas Supreme Court to take the position that Obergefell was irrelevant to the claim in Pavan, when in fact it was dispositive. “Arkansas,” the per curiam opinion explained, “has thus chosen to make its birth certificates more than a mere marker of biological relationships. The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.” Indeed, the right to have a same-sex spouse listed on a child’s birth certificate was one of the right specifically sought by plaintiffs in the consolidated cases under review in Obergefell—the opinion thus granted this very right.
Justice Gorsuch wrote a bizarre and meandering dissent, joined by Justices Alito and Thomas. It argued from a false premise—that the Arkansas rules were “designed to ensure that the biological parents of a child are listed on the child’s birth certificate”—and thus reached no meaningful conclusion. Gorsuch griped at the end that summary reversal seems a strange “reward” for a court that was “seeking faithfully to apply, not evade, this Court’s mandates.” Perhaps Gorsuch is a mind-reader who can smoke out a pure motive better than the rest of us, but his dissent can only be understood as a not-too-subtle message to his supporters that he will oppose LGBT rights even when the law is so clear that a majority of the court doesn’t even think briefing or oral argument is warranted. This does not bode well for next year’s throw down in Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a “cake artist” in Colorado who refused, on religious grounds, to make a cake for a gay couple’s wedding.