Arizona Supreme Court in McLaughlin v. Jones was asked an increasingly familiar question: Does the US Supreme Court’s ruling in Obergefell v. Hodges (2015), which held that it was unconstitutional for states to withhold the right to marry from same-sex couples, mean that male and female spouses must be presumed the legal parents of children born during the marriage? This court, unlike some others, answered a simple question with a simple answer: Yes. Let me explain the straightforward way in which the court reached that result.
Kimberly and Suzan legally married in California in 2008 and decided to have a family. Suzan unsuccessfully attempted to become pregnant with donor sperm, Kimberly successfully conceived and gave birth to a son in 2011. The two women entered into a joint parenting agreement in which Kimberly agreed that she intended her wife to be an equal parent, sharing all rights and responsibilities for their son. After the child’s birth, Kimberly returned to work as a physician, while Suzan stayed home as the primary caregiver. But when the two women broke up, Kimberly moved out of the joint home, with the child in tow.
Suzan filed a petition to dissolve the marriage and requested shared parental decision-making and custodial time. She asked the court to apply the state’s marital presumption (ARS § 25-814(A)(1)), which provides, which provides that a man “is presumed to be the father of the child if . . . [h]e and the mother of the child were married at any time in the ten months immediately preceding the birth. . . .” Although Suzan’s case began before Obergell, it finished with marriage equality on the books. The trial court sided with Suzan. Kimberly appealed, first to an intermediate appellate court and then to the state’s highest court, losing both times.
The most immediate import of Obergefell was that states could no longer enforce bans on the celebration or recognition of marriages by same-sex couples. But the ruling had a broader, immediate effect. The Court had consolidated five cases in Obergefell, and some of them involved plaintiffs litigating only over the benefits of marriage because they had legally married in another jurisdiction. The Supreme Court could not have been clearer that its holding required states to extend all available benefits to same-sex married couples on equal terms.
In the just-released ruling, the Arizona Supreme Court held that the female spouses, like male spouses, are presumptively the parents of children born during the marriage and that Kimberly was estopped from rebutting the presumption of parentage. The Arizona court saw no doubt that Obergefell requires that same-sex couples have access to the same benefits (and obligations) as other married couples. Throughout the opinion, the majority repeatedly admonished that same-sex couples have a right to “civil marriage on the same terms and conditions as opposite-sex couples.” As Justice Kennedy explained, “the petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex” (emphasis added). The Constitution, he continued, “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” The Court thus concluded that the “State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” To hold otherwise “would disparage their choices and diminish their personhood.”
The Supreme Court made good on its promise not to allow (or require) benefit-by-benefit litigation after Obergefell. Twice already, the Court has issued per curiam rulings, without the benefit of full briefing or argument, in cases arising from state efforts to thwart Obergefell’s obvious reach. In V.L. v. E.L., the Court held that Alabama could not refuse full faith and credit to a lesbian co-parent adoption from Georgia, under the exacting form of full faith and credit granted to judicial decrees. Even more relevant to the issue in McLaughlin, in Pavan v. Smith (discussed in more detail here), the Supreme Court held that Arkansas could not deny same-sex spouses the right to be named on the birth certificate of a child born during the marriage. Although Arkansas claimed that its birth certificates were used to create a record of biological parentage, its code provisions told a different story. For example, husbands were permitted to place their names on a birth certificate even for children knowingly conceived with donor sperm. By choosing to make “birth certificates more than a mere marker of biological relationships,” it has chosen “to give married parents a form of legal recognition that is not available to unmarried parents.” It had to give all married parents the benefit of the same rule.
Together, the Supreme Court’s rulings in Obergefell and Pavan provided a clear roadmap for the Arizona Supreme Court in McLaughlin. As with Arkansas on birth certificates, Arizona used the marital presumption as more than just a reflection of biological parentage. A man can be presumed the legal parent of his wife’s child even when biological parentage is an impossibility. There, the McLaughlin court explained, “the marital paternity presumption encompasses more than just rights and responsibilities attendant to biologically related fathers. . . . Arizona cannot deny same-sex spouses the benefit the presumption affords.” (The conclusion was obvious, but the citation to one of the federalist papers written by Alexander Hamilton was appreciated by this Hamilton-obsessed reader.)
The court also held that Kimberly could not successfully rebut the presumption of parentage based on a theory of equitable estoppel. The McLaughlin court applied the doctrine to disallow Kimberly from denying Suzan’s parentage after signing a joint parenting agreement in which she indicated her intent to share all aspects of parental status and function—and after behaving in ways consistent with that intent for the first two years of the child’s life. Suzan, after all, was the child’s primary caregiver for those two years, and Kimberly allowed her to function in that role and to “form a mother-son bond.” It would be unfair at this point to allow Kimberly to say “just kidding” and insist on exclusive parental rights.