The Arkansas Supreme Court has reversed a lower court’s decision regarding the birth certificates of children with same-sex parents. Last December, Little Rock Circuit Judge Tim Fox ruled Arkansas’ ruling that called the state’s demand that both a biological mother and father be identified on birth certificates “infringements on the constitutional due process rights of adoptive gay and lesbian couples.” The Arkansas Supreme Court stayed that decision.
As Reuters reports, the Arkansas Supreme Court was split in its Thursday decision to reverse the December 2015 ruling by Judge Fox, with a four-member majority voting to keep biological parents’ names listed on the birth certificates of same-sex couple’s children, even in instances where the same-sex parents of said children are legally married, and even in instances where the same-sex spouse legally adopts the child(ren) in question.
In summer 2015, the United States Supreme Court effectively legalized same-sex marriage across the nation; as such, Judge Tim Fox ruled on behalf of three lesbian couples who had sued Arkansas, arguing that the SCOTUS same-sex marriage decision superseded the prior Arkansas law requiring biological parents to be listed on birth certificates. Furthermore, the plaintiffs argued that the Arkansas birth certificate law violated equal protection laws for same-sex couples.
Well prior to Thursday’s decision by the Arkansas Supreme Court that disagreed with and reversed lower court’s ruling, the State of Arkansas had been resistant to allowing same-sex parents to be listed on their children’s birth certificate. The state had argued that any changes to established birth certificate regulations would have to be approved by the state Health Board and/or Arkansas Legislature.
In writing the Arkansas Supreme Court’s split decision, Arkansas Supreme Court Associate Judge Jo Hart made it clear that she found no validity in the plaintiff’s argument against Arkansas law. According to Hart, the judgement is about “basic biological truths.”
“It does not violate equal protection to acknowledge basic biological truths. In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.”
Judge Hart added that the Arkansas Supreme Court decision has implications beyond immediate families. She wrote that having the biological parent properly identified on birth certificates in the state was an “important governmental objective” with regard to keeping track of “public health trends.” Furthermore, she claimed that having both biological parents accurately listed on birth certificates is a benefit to children, allowing them an accurate genetic history.
Arkansas Chief Justice Howard Brill got weird when writing his opinion regarding the Arkansas Supreme Court’s decision. Justice Brill partially upheld the lower court’s decision; in doing so, he quoted 16 lines from the Bob Dylan song “The Times They Are A-Changin'” in his opinion.
“The times indeed are a-changin’. All three branches of the government must change accordingly. It is time to heed the call.”
Arkansas Associate Justice Paul Danielson dissented with the court’s decision, calling it “simply and demonstrably wrong.” Justice Danielson cited the 2015 Supreme Court decision, which he said “demanded” that same-sex parents’ names be listed on birth certificates, regardless of biological ties.
While the Arkansas Supreme Court cited biology in their decision, stating that the “female spouse does not have the same biological nexus to the child that the biological mother or the biological father has,” with regard to same-sex couples, it is ironic to note that Arkansas has a reputation for having some of the most favorable surrogacy laws in the United States — laws that allow “intended parents” to have their names listed on birth certificates of children gestated and birthed by surrogates, reports Surrogate Mother Connection.
“Arkansas law states that a child born to a surrogate is the child of the intended father and his wife, if he is married. An unmarried intended mother using anonymous donor sperm is also declared to be the mother of her child born to an artificial insemination surrogate. The same law has a simple procedure for placing the intended parent’s names on the child’s birth certificate, so the parents do not have to “adopt” their own child. This favorable law on surrogacy is a statutory law enacted by the Arkansas Legislature rather than case law created by judges.”
The juxtaposition of the Arkansas Supreme Court decision this week, a decision that will impact same-sex couples almost exclusively, with the state’s surrogacy laws has some raising their eyebrows and questioning whether the ruling was truly about acknowledging “basic biological truths” as opposed to thwarting LGBTQ rights.
It is unknown at this point whether or not the decision of the Arkansas Supreme Court will be appealed to the U.S. Supreme Court, or if the ruling will impact state surrogacy laws favorable to non-biological parents.
[Featured Image by Danny Johnston/AP Images]