Getting it Right: The Arizona Supreme Court Applies Marital Presumption to Same-Sex Spouse

Posted in: Family Law

The Arizona Supreme Court 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. The straightforward opinion in McLaughlin v. Jones provides a carefully reasoned roadmap that courts in other states would do well to follow.

Marriage, Baby Carriage, Divorce

Kimberly and Suzan legally married in California in 2008 (during a perhaps now forgotten window when California embraced marriage equality before again abandoning it). The two women decided to have a family. Suzan first underwent artificial insemination with donor sperm, but did not become pregnant. Kimberly then took her turn, became pregnant, and gave birth to a son in 2011. Before the child’s birth, the two women entered into a written “joint parenting” agreement, in which they agreed that Kimberly intended for her wife to be a second parent to the child with all the “same rights, responsibilities, and obligations that a biological parent would have to her child,” even in the event the adult relationship might end. The two agreed that in the event their relationship dissolved, they would share custody, visitation, and child support.

After the child’s birth, Kimberly returned to work as a physician, while Suzan stayed home as the primary caregiver. Before the child turned two, however, the relationship deteriorated, and 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. This process began in 2013, before the US Supreme Court had ruled on the constitutionality of bans on marriage by same-sex couples and when Arizona still had a law banning both the celebration and recognition of such marriages. Suzan challenged the constitutionality of those bans in her family law proceeding, and the State of Arizona intervened in the litigation.

Obergefell and Beyond

As Suzan’s petition was proceeding the Arizona courts, a two-decade battle over marriage equality culminated in the Supreme Court’s 2015 ruling in Obergefell v. Hodges, in which it held that

The Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. . . . [T]he Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

The immediate import of this holding was clear—the states that still had bans like Arizona’s could no longer enforce them. But the immediate import of Obergefell was broader than this. When the Supreme Court agreed to hear the Obergefell case, it considered five different cases that had been consolidated before the Sixth Circuit Court Appeals—the only federal appellate court to hold that marriage equality bans did not violate the federal Constitution. After the Supreme Court’s 2013 ruling in United States v. Windsor, in which it held unconstitutional the federal Defense of Marriage Act, federal courts all across the country considered challenges to analogous state laws and held, almost without exception, that none of them passed constitutional muster. But the Sixth Circuit did not join the growing chorus; rather, it held, in DeBoer v. Snyder, that states were not required by federal constitutional principles to allow the celebration or recognition of marriages by same-sex couples.

The consolidated cases in DeBoer raised a variety of claims. Some of the plaintiffs sought issuance of a marriage license that had been denied, but others had successfully married already (in a jurisdiction that allowed their marriages) but sought specific benefits that had been denied such as spousal recognition on birth and death certificates, spousal insurance benefits, joint adoption rights, and so on. This matters when understanding the import of Obergefell because the Court ruled for the plaintiffs on all of these issues. In other words, it ruled not only that states could not withhold marriage licenses, but also that they had to extend equal benefits to married same-sex couples.

The Question on Appeal in McLaughlin

After the ruling in Obergefell, the State of Arizona withdrew from Suzan’s case on the theory that there was no longer any relevant constitutional question in play. The state believed that Suzan, like male spouses, was covered by Arizona Revised Statute § 25-814(A)(1), 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. . . .” This provision is referred to as a “marital presumption” and creates a presumption of legal fatherhood in husbands for children born during the marriage. The trial court in Suzan’s case agreed, holding that Obergefell requires that all benefits of marriage be extended equally to same-sex married couples—and that includes the marital presumption. Suzan thus had no constitutional beef with Arizona law, which had been trumped by federal constitutional law.

Kimberly appealed, first to an intermediate appellate court and then to the state’s highest court, losing both times. 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.

Obergefell’s Application to Parentage Law

Parentage questions have abounded since Obergefell, as families and courts struggle to understand the ruling’s scope and application. (A broader look at parentage law after Obergefell is available here.) But many of these questions are easily resolved by a close look at the Court’s reasoning in Obergefell followed by an examination of two cases in which the Court resolved parentage disputes between same-sex partners with summary reversals.

There cannot be any doubt that Obergefell requires that same-sex couples be allowed to marry in every state and that they have access to equal 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 majority specifically rejected the idea that same-sex couples would have to litigate for each benefit: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Even the dissenters in Obergefell confirmed that the holding includes the right to available benefits. Eight justices on the Court, including three in dissent, flatly rejected the proposition that same-sex couples would have to argue, post-Obergefell, for equal marital benefits on a case-by-case basis, Chief Justice Roberts lamented in his dissenting opinion that cases involving selective tangible benefits, he wrote, “will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.”

Summary Reversals After Obergefell

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. (The relative benefits of adoption for same-sex co-parents, particularly in the years before marriage equality, are explained here.)

In Pavan v. Smith (discussed in more detail here), the Supreme Court summarily reversed an opinion of the Arkansas Supreme Court that purported to allow the state to refuse same-sex married couples the right to place both spouses’ names on a child’s birth certificate. Although Arkansas claimed that its birth certificates were used to create a record of biological parentage, its code provisions told a different story. Husbands were permitted to place their names on a birth certificate even for children knowingly conceived with donor sperm. And husbands were also permitted to be on the birth certificate even when the child was conceived in adultery. Because Arkansas law permitted spouses to be listed on a birth certificate when there was no biological tie—or when the biological tie was questionable—the right to placement was simply a benefit of marriage rather than an accurate biological record of a child’s origins. 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.” In so doing, Arkansas “denied married same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

Obergefell, Pavan, and McLaughlin

Together, the Supreme Court’s rulings in Obergefell and Pavan provided a clear roadmap for the Arizona Supreme Court in McLaughlin. At issue was whether the marital presumption should apply to female spouses (whose wives gave birth during the marriage) or only male spouses. The Arizona court had no trouble concluding that Obergefell promises equal access to the benefits of marriage as well as the status itself. “It would be inconsistent with Obergefell,” the court wrote, “to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.”

The question, then, is whether the marital presumption is a benefit of marriage or whether it can be understood as something separate. Kimberly argued that Arizona used the marital presumption to identify biological parentage. But she met with the same problem that Arkansas did in Pavan: the law does not differentiate between spouses who are biological parents and those who are not but are married to the mother at the time of a child’s birth. In both states, a man can be deemed a full legal parent even when the sperm knowingly came from someone else. As 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.” It thus held that the marital presumption had to be applied to same-sex spouses in order to cure the constitutional violation, as the federal Constitution trumps state legislation. (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 only question remaining was whether Kimberly could successfully rebut the presumption of parentage. There are cases in which a husband is presumed to be the father, but ultimately proven not to be. Here, however, the court relied on the doctrine of equitable estoppel – which prevents a person from taking a position on which someone else relies and then taking a different position to the relier’s detriment—to disallow rebuttal of the presumption. It is not uncommon for courts to apply this doctrine in the family law context. It has been used, for example, to disallow a husband from disavowing paternity when he asserted in a divorce petition that there were children of the marriage. In McLaughlin, the 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.


This will not be the last parentage dispute that arises from a same-sex relationship, given the reluctance some states have shown to implement the Obergefell ruling (ahem, Texas). And while it can be more fun to comment on the cases in which courts misconstrue and misbehave, we should take the time to point out a sound opinion that upholds the rule of law. Good job, Arizona.

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