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Arizona Supreme Court Decision: A Reminder That the Marriage Equality Battle Isn’t Over

Lisa Needham

McLaughlin v. McLaughlin dealt with whether the female spouse of a woman who gave birth via artificial insemination can be presumed to be the legal parent of that child.

Arizona’s Supreme Court unanimously held Tuesday that married same-sex female couples are entitled to the same rights that opposite-sex married couples enjoy with regard to children and parenting. The case, McLaughlin v. McLaughlin, dealt with whether the female spouse of a women who gave birth via artificial insemination can be presumed to be the legal parent of that child.

When the Supreme Court decided Obergefell v. Hodges, the marriage equality case, it should have been the end of legal wrangles like this. That’s because Obergefell didn’t just hold that same-sex couples could get married. Instead, it held they were entitled to “the constellation of benefits that the States have linked to marriage.” Theoretically, that means that any right the government bestows on opposite-sex married couples also must be given to same-sex couples. In practice, there’s a lot of pushback from both states and individuals about the reach of those rights, which is why we’re seeing lawsuits like this.

In 2010, Kimberly and Suzan McLaughlin, who were at the time legally married in California, decided to have a child. Kimberly was able to conceive via artificial insemination, using an unknown sperm donor. After they moved to Arizona in 2011, the McLaughlins entered into a “co-parent” arrangement, as same-sex marriage was not yet law in that state. But by 2013, the relationship had soured. Suzan, the non-biological parent, filed for divorce and filed a petition demanding some custodial rights.

Similar to many states, Arizona has a law that says a man is presumed to be the legal parent of a child born to his wife if they are married at the time of the child’s birth. Suzan argued that she was a presumptive parent under that law, as she was legally married to Kimberly at the time of conception and birth. Being a presumptive parent means that, even though she obviously did not contribute biologically to the creation of their child, Suzan is the child’s parent for all legal intents and purposes. As a presumptive parent, Suzan would be entitled to things like helping make educational decisions for her child, having a say in whether the custodial parent could move the child out of state, and accessing visitation and custody rights.

Sex. Abortion. Parenthood. Power.

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Kimberly fought this, because she wanted to deny Suzan access to their child. She argued that the presumptive parentage law didn’t apply to Suzan because it could only apply to an opposite-sex married couple. Applying Obergefell, two lower courts in Arizona found in favor of Suzan.

At roughly the same time, another similar case, Turner v. Steiner, was proceeding through Arizona courts. The lower courts in that instance came to the opposite conclusion, holding that a female same-sex spouse was not a presumptive parent because the presumptive parentage law is grounded in the “biological differences” between cis men and cis women. (Never mind, of course, that there is no biological relationship whatsoever between a child who is the product of artificial insemination and their non-biological male parent.) The Turner court based its decision on a belief that the reach of Obergefell did not extend to applying a gender-neutral interpretation to statutes relating to presumptive paternity—because the Arizona law specifically referred to men as the presumptive parent throughout.

Thankfully, the McLaughlin court came down squarely on the side of equality, implicitly overruling the Turner case and holding that to deny Suzan presumptive parentage was a violation of the 14th Amendment. The court relied upon Obergefell‘s holding that marriage is central to our social order and “the basis for an expanding list of governmental rights, benefits, and responsibilities,” including child custody and visitation rights.

The McLaughlin court also looked to a more recent U.S. Supreme Court decision, Pavan v. Smith. In Pavan, two same-sex married female couples (both of whom had one partner conceive via anonymous sperm donation) sued after the state of Arkansas refused to allow them to place the non-birth mother’s name on the child’s birth certificate. The Court ruled in favor of the same-sex couples, noting that things like birth and death certificates are one of the rights same-sex couples are entitled to thanks to the ruling in Obergefell.  (Justice Neil Gorsuch dissented, writing that refusing to allow same-sex birth certificates was an example of the state engaging honestly and “faithfully” with the requirements of Obergefell.)

This latest case is a reminder that Obergefell was the beginning, not the end, of the fight for complete marriage equality.

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