Two years ago, the U.S. Supreme Court held in Obergefell v. Hodges (2015) that it is unconstitutional for states to withhold the right to marry from same-sex couples. The immediate impact was the invalidation of state laws banning the celebration of recognition of such marriages that had not already been struck down by a court or repealed. But almost immediately, states and individuals opposed to marriage equality began maneuvering to avoid, subvert, or limit Obergefell’s holding. For the second time, the Supreme Court has summarily reversed a state high court ruling that upheld such a maneuver, this time in a case involving Arkansas’s refusal to place the name of a mother’s wife on a child’s birth certificate.
Post-Obergefell Maneuvering
One set of post-Obergefell developments relate to weddings themselves, and the refusal by some vendors—bakeries, florists, photographers, and so on—to provide services for same-sex weddings despite making those services otherwise available to the general public. On its final day in session this year, the Supreme Court agreed to review a case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a baker in Colorado (he prefers the term “cake artist”) who refused to make a cake for a same-sex couple’s wedding, citing religious objections. The court below held his refusal was discriminatory and not protected by the Free Exercise Clause of the First Amendment. Courts in other states reached the same conclusion in similar cases. The Supreme Court may ultimately agree, but it has agreed to review the case on constitutional grounds. The religion-versus-marriage equality fight will be staged when the Supreme Court re-convenes in October 2017.
A second set of developments relate to marriages rather than weddings. Some states have argued that even though they must permit same-sex couples to marry, they need not provide the same benefits of marriage as they do to opposite-sex couples. The Texas Supreme Court, for example, has a pending case, Parker v. Pidgeon, in which the state has argued that the City of Houston must deny insurance benefits to same-sex spouses of its employees, even though it generally provides for spousal insurance benefits, because the state law banning recognition of same-sex marriages has somehow survived Obergefell. This line of argument turns on an untenable reading of Obergefell that claims it only requires states to issue marriage licenses to same-sex couples on equal terms but not that they provide the constellation of benefits they provide to other married couples.
Parentage Questions After Obergefell
Within this latter set of developments is a cluster of cases surrounding parentage, the rules that determine a child’s legal parents and, thus, which adults have rights and obligations to which children. (A broader look at parentage law after Obergefell is available here.) The Supreme Court has now twice stopped state efforts to deprive same-sex married couples of parentage benefits.
One such case reached the Supreme Court almost immediately after Obergefell. In that case, V.L. v. E.L., a parentage dispute arose between two women who had together raised three children from birth. E.L. gave birth to the children, and V.L. adopted each of them in Georgia, where the couple then lived. But when the women’s 16-year relationship ended, E.L. unilaterally severed ties between V.L. and the children, even though V.L. was legally their adoptive mother. The case was litigated in Alabama, where the V.L. then lived. The Alabama Supreme Court refused to give full faith and credit to the adoption decree from Georgia on the theory that Georgia did not have jurisdiction to issue a second-parent adoption decree in the first place. V.L. petitioned the U.S. Supreme Court for review, and rather than receiving a simple grant of review, she received a final ruling on the merits without ever having to brief or argue the case. The Court did this because the Alabama Supreme Court’s ruling was so plainly wrong, the case did not merit the usual laborious process.
Court judgments, including adoption decrees, are entitled to the most “exacting form” of full faith and credit, which means, in essence, that they are enforceable in every state regardless of which state issued them in the first instance. For this reason, adoption has always been held out as the gold standard for same-sex couples co-parenting a child—the most secure, and sometimes the only, way to secure the legal connection between the non-biological parent and the child across state lines. (The relative benefits of adoption, particularly in the years before marriage equality, are explained here.) Alabama offered no reasonable (or legally cognizable) explanation for refusing to honor the Georgia decrees; the Court unanimously, in a per curiam opinion, thus summarily reversed the opinion and required the state to give effect to the decrees. (A more detailed analysis of this case is available here.)
Pavan v. Smith: An Uphill Battle for the State of Arkansas
The Supreme Court just issued a summary disposition in a second post-Obergefell parentage case, Pavan v. Smith. In that case, the Arkansas Supreme Court 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 is female rather than male, despite Obergefell. Indeed, the court reasoned, Obergefell isn’t even relevant to the question. That’s a curious observation, to say the least.
Under Arkansas law, the husband of a married woman shall be listed as the second parent on the birth certificate of any child born during the marriage. This is so regardless of whether there is any proof that he is the biological father of the child. 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.
Why does any of this matter? Arkansas claimed that it was refusing to list same-sex spouses on birth certificates because the purpose of the document was 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.
Although state officials in a few other states attempted to stake out the same position Arkansas did, they were resoundingly rebuked by federal courts who heard the challenges from same-sex married couples. A federal court in Carson v. Heigel held that South Carolina’s refusal to list the female spouse of a biological child on that child’s birth certificate, when it does so for husbands, “is violative of Plaintiffs’ fundamental right to marriage and other protected liberties.” Likewise, in Torres v. Seemeyer, a federal court in Wisconsin ordered that “all relevant state officials shall treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” A federal court in Florida, in Brenner v. Scott, merely cited “the reasons set out in Obergefell” to invalidate that state’s birth certificate rule. And a federal judge in Nebraska, in Waters v. Ricketts, agreed with plaintiffs that the state’s refusal to issue birth certificates listing mother and wife as parents gave them “cause to be concerned about other protections available to same-sex couples related to the right to marry”; the court retained jurisdiction over the case in case that issue was “not addressed to the plaintiffs’ satisfaction.”
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.
The majority opinion in Obergefell, written by Justice Kennedy, repeatedly admonishes that same-sex couples have a right to “civil marriage on the same terms and conditions as opposite-sex couples.” That language of “terms and conditions” is used over and over again. Moreover, eight justices on the Court, including three dissenters, flatly rejected the proposition that same-sex couples would have to argue for marital benefits on a case-by-case basis after Obergfell. The majority wrote explicitly that it was choosing against case-by-case determination of benefits because such an approach “would deny gays and lesbians many rights and responsibilities intertwined with marriage.” The dissenters agreed, though in lament, that questions about particular benefits “will not arise now” because the Court has resolved them all in this one opinion. In fact, one of the consolidated cases under review in Obergefell was a challenge to Kentucky’s refusal to list a same-sex spouse on a child’s birth certificate. The ruling in Obergefell meant that this specific benefit had to be extended to same-sex married couples.
According to the majority’s explanation in Obergefell, the right to marry under the Due Process Clause is fundamental in part precisely because the states have attached so much legal significance to it through “an expanding list of governmental rights, benefits, and responsibilities.” The states have done this to themselves by placing the institution of marriage “at the center of so many facets of the legal and social order.” And it is equally so whether the couple is opposite sex or same sex. States simply cannot deny same-sex couples “the constellation of benefits that the States have linked to marriage.”
It would be especially ironic for states to withhold marital benefits affecting children, given that concern for their well-being was a significant force underlying the majority opinion. States cannot pick and choose which marital protections to withhold from same-sex couples based on the same rationales that were used to justify banning same-sex marriage in the first instance. By its ruling in Obergefell, the Court rejected arguments that used children as a reason to deny same-sex couples the right to marry—and embraced arguments that permitted marriage equality in order to protect the children they were raising or might raise in the future. The Obergefell Court relied heavily on its assessment that same-sex couples also “establish families” and “provide loving and nurturing homes to their children, whether biological or adopted.”
The Ruling in Pavan v. Smith and Justice Gorsuch’s Dissent
The Court issued a per curiam opinion (no identified author). But given that three justices joined a dissent, the ruling was likely 6-3 (Michael Dorf explains here why we do not know for sure whether the ruling had the support of 5 or 6 justices.) The majority keeps it simple—as the issue warranted. It concluded that the Arkansas Supreme Court’s ruling “denied married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage.’” This is made abundantly clear by the fact that husbands are listed as the father even when the child is conceived with donor sperm. That is the exact situation for most lesbian couples who conceive a child—one woman conceives the child with donated sperm with the consent of her wife who plans to co-parent the child. Identifying a second woman as a child’s parent is no more or less biologically inaccurate than identifying a man who we know did not contribute sperm to the conception.
While Arkansas may genuinely be concerned with identifying biological relationships, it has not crafted the birth certificate rules in such a way as to serve that purpose. “Arkansas,” the Pavan Court wrote, “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.”
The right to have the spouse recognized as a second parent is clearly one of the benefits of marriage. And birth certificates matter. It is the document that enables an adult to enroll a child in school, to apply for a passport, to make medical decisions, among other purposes it serves. The Court recognized that Obergefell does not permit Arkansas to withhold this important benefit from same-sex couples when it grants it in identical circumstances to opposite-sex couples. And just for good measure, the Court pointed out that it had identified “birth and death certificates” in Obergefell as benefits of marriage and that the right to list a spouse on a birth certificate had been specifically at issue for some of the plaintiffs in that case.
Justice Gorsuch wrote a dissent, which was joined by Justices Alito and Thomas. The dissent is somewhat bizarre, focusing almost entirely on a false premise: “The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.” As made clear in the Court’s opinion and by the statutes themselves, that is an incorrect characterization of the applicable Arkansas code provisions. Gorsuch then proceeds to defend a biology-based regime and to defend a state’s right to enact rules that are designed to implement such a regime. But that isn’t what Arkansas did, so the validity is irrelevant. The dissent never tackles the unconstitutional inequality of allowing non-biological husband-fathers to be recognized but not non-biological wife-mothers, instead shifting to a meandering discussion of whether the relief granted by the Court was necessary or appropriate given the procedural posture of the case.
Gorsuch closes the dissent with a strange suggestion that the Court should have withheld the remedy of summary dissolution given his assessment that the Arkansas Supreme Court was “seeking faithfully to apply, not evade, this Court’s mandates.” Even if that assessment were warranted (the Arkansas opinion suggests precisely the opposite), a court’s ostensibly benign motivation is not relevant to the validity of its ruling. Either the court correctly interpreted and applied Obergefell, or it didn’t. This dissent, then, can only have had the purpose of setting a strong message that Gorsuch, as many have feared, will be hostile to LGBT issues.
Conclusion
The ruling in Pavan will not end all post-Obergefell wrangling—we still have Masterpiece Cakeshop to anticipate. But it should put an end to the cases working their way through courts that represent clear attempts to avoid giving Obergefell its due.