Analysis Law and Policy

A Supreme Court Win for Same-Sex Couples, But Gorsuch Dissent Could Spell Trouble

Lisa Needham

A grim, litigious future may await same-sex couples.

In Pavan v. Smith, decided at the U.S. Supreme Court Monday, marriage equality advocates secured an important victory. However, that victory isn’t without a dark shadow, thanks to an unnecessary and mean-spirited dissent from the Court’s newest member, Justice Neil Gorsuch.

At issue in the case was whether Arkansas violated the U.S. Constitution by denying married female same-sex couples the right to have both parents named on their child’s birth certificate. For opposite-sex couples who were married at the time the woman conceived, Arkansas law requires the name of the male spouse to appear on the birth certificate, regardless of whether the husband had a proven biological relationship to the child. Arkansas decided that right shouldn’t extend to the female spouse of a woman.

Being listed on a birth certificate is no mere symbol. Birth certificates actually control a host of parental rights. In Arkansas, some public schools only allow parents listed on the birth certificate to receive information about the child. Doctors may not allow a person not listed on a child’s birth certificate to consent to medical treatment for the child. The presence on a birth certificate can also affect some survivor benefits for children of certain Arkansas public employees after those parents pass away.

Two same-sex married female couples—who both conceived via anonymous sperm donation—sued the state in 2015 after being denied birth certificates listing the non-birth mother as a parent. They argued that by refusing to automatically put the female spouse on the birth certificate, the state was treating same- and opposite-sex married couples differently—something forbidden under the Supreme Court’s landmark same-sex marriage decision, Obergefell v. Hodges.

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Obergefell held that same-sex couples are entitled to “the constellation of benefits that the States have linked to marriage.” What this should mean is that any right a state affords to opposite-sex married couples automatically extends to same-sex couples. Arkansas didn’t view it that way and blocked issuance of the birth certificates for the two female same-sex couples.

Though a lower court in Arkansas decided in favor of the same-sex couples, the Arkansas Supreme Court reversed, holding that the law was predicated on the biological relationship between the parents and the child, not the parents’ marriage status.

When the two couples petitioned for United States Supreme Court review, they pointed out a number of situations where Arkansas does not consider the biological relationship between the parents and child to be controlling for birth certificates. For example, if a married couple uses donor insemination, the child is considered a child of the husband even though he has no genetic connection to the child. Additionally, adopted children receive a new birth certificate reflecting the adoptive parents, even though those individuals have no biological relationship to the child.

The majority of the Court disagreed with Arkansas’ interpretation of the law so strenuously they decided the case via summary reversal, which is when the Court agrees to hear the case but overturns the court below without requiring briefs or oral argument. The majority pointed out the decision in Obergefell specifically mentioned birth and death certificates as one of the “rights, benefits, and responsibilities” that same-sex couples must have access to.

While this case might seem to have been about the relatively limited question of birth certificates, what it was really about is whether states are allowed to read the Court’s Obergefell holding narrowly or broadly. In writing a dissent here, (which Justices Clarence Thomas and Samuel Alito, unsurprisingly, joined), Gorsuch signaled that he will work to limit the protections same-sex married couples enjoy.

First, Gorsuch expressed how deeply unhappy he was that this case was summarily reversed. His eagerness to force arguments for an open-and-shut case shows that he does not consider Obergefell settled law, but rather something that will need to be assessed and reassessed each time a conservative state or court tries to limit it. He also asserted that it is fine for the state to have a birth certificate registration policy that is only “generally based on biology,” even if there are exceptions. In other words, the exceptions he likes, such as donor insemination and adoption, are fine, but the ones he doesn’t, like same-sex marriage, are not. Finally, he gives credit where no credit is due, by saying that the Arkansas court, in upholding a denial of the same-sex couples’ birth certificates, was engaging honestly and “faithfully” with Obergefell. Of course, an honest and faithful engagement with Obergefell would mean reading that case expansively, as the Supreme Court indicated, rather than seeking a loophole in order to discriminate.  

States—and Supreme Court justices—seeking to enshrine a cramped reading of Obergefell that requires same-sex couples to fight tooth and nail for each right other than marriage are not behaving in a faithful, compassionate, or intellectually honest fashion. Instead, they are hoping to chip away, piece by piece, at the broad protections of Obergefell, just as conservatives have done for 40-plus years with Roe v. Wade. It is a good sign that the majority summarily reversed in this instance, but if the future of the court is Neil Gorsuch, we can’t be at all certain that such a protective stance will stand. And a grim, litigious future may await same-sex couples.

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LGBT marriage, LGBTQ, Politics

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