U.S. Supreme Court Rules Arkansas Must Allow Lesbian ‘Spouses’ to Be Listed on Birth Certificates

WASHINGTON — The U.S. Supreme Court has ruled that the State of Arkansas must allow the “spouses” of lesbian women who conceive by a male sperm donor to be recognized on birth certificates even though they are not the biological parent.

“Obergefell proscribes such disparate treatment. As we explained there, a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples,'” the court wrote in its 6-3 decision. “Indeed, in listing those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified ‘birth and death certificates.’”

As previously reported, in 2015, six lesbians filed suit against the Arkansas Health Department’s Vital Statistics Bureau after it declined to recognize both the biological mothers and their female partners as the parents on their children’s birth certificates, which they sought to do in order to obtain insurance coverage for the children.

The bureau stated that the women needed to obtain a court order in the matter.

In their lawsuit, the women alleged that the refusal violated the U.S. Constitution because they could not both be listed just like heterosexual parents. But the state argued that the requirement to obtain a court order is the same for heterosexual couples who have children out of wedlock and marry after the birth.

In November 2015, Pulaski County Circuit Judge Tim Fox sided with the lesbian women, stating that the birth certificates should be amended to include both of their names.

He drew a distinction between the various plaintiffs, however, as some had “married” before the birth and some after. Fox said that the latter scenario was not as clear in his mind in siding with the women, but decided to likewise allow their names to be listed.

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Last December, the Arkansas Supreme Court overturned Fox’s ruling, stating that there is an “important governmental objective” in requesting that biological parents be listed on the birth certificate, such as having genetic information available for medical purposes.

“The purpose of the statutes is to truthfully record the nexus of the biological mother and the biological father to the child,” it outlined.

“[T]he challenged classification serves an important governmental objective—tracing public-health trends and providing critical assistance to an individual’s identification of personal health issues and genetic conditions—and that the means employed—requiring the mother and father on the birth certificate to be biologically related to the child—are substantially related to the achievement of those objectives.”

It found that such a requirement does not violate the Equal Protection Clause of the 14th Amendment.

However, upon appeal, the U.S. Supreme Court’s majority opinion concluded on Monday that, in accordance with its 2015 ruling on same-sex “marriage,” birth certificate recognition is a right and benefit that accompanies the relationship just as much as between a married man and a woman.

It noted that when a married heterosexual couple has a baby via in vitro fertilization, the husband—who is not the biological father in such instances—is allowed to be listed on the birth certificate. Therefore, the court ruled that the same must be permitted for lesbian relationships.

“Arkansas 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. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition,” the majority concluded.

However, Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented, stating that the state’s interest of recording a child’s genealogical lineage on his or her birth certificate “in no way” violates the Obergefell decision.

“[T]he 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,” Gorsuch wrote.

“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.”


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