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In the South, We're Still Fighting for Marriage Rights

Arkansas’s Blatant Defiance of Marriage Equality in Birth Certificate Case Cries Out for Supreme Court Review

Arkansas is the latest Southern state to declare war against same-sex marriage and parenting.

Like millions of other legally married same-sex couples, Marisa and Terrah Pavan were confident that the U.S. Supreme Court's 2015 decision in Obergefell v. Hodges meant their marriage was finally secure. The Supreme Court had ruled, in the clearest possible terms, that every state must offer same-sex spouses the same "constellation of benefits" it offers to other married couples. The court's mandate was simple: Same-sex married couples must be treated equally under the law in every way.

But when Marisa and Terrah had a child in their home state of Arkansas, they found out that the state had no intention of abiding by the Supreme Court's clear directive to treat same-sex couples equally. Like many couples, gay and straight, Marisa and Terrah conceived using an anonymous sperm donor. Terrah gave birth to their daughter in 2015. Like other new parents, they completed the application to receive a birth certificate at the hospital, listing both spouses as parents on the application. But when the Arkansas Department of Health issued the birth certificate, Marisa's name wasn't there. Terrah was listed as the only parent.

The same thing happened to Leigh and Jana Jacobs. When Leigh gave birth to their son in 2015, they were issued an Arkansas birth certificate listing only Leigh as a parent. The state treated their marriage as if it did not exist.

Not having a legally accurate birth certificate puts the children in these families at serious risk of harm. Just imagine what could happen if one of these children ever need emergency medical care and Jana or Marisa are not allowed to make decisions for them because they can't prove their parental relationship. It's the stuff of every parent's worst nightmares. And when these children grow up, having a birth certificate that includes only one of their parents will forever serve as a reminder that the state deems their families unequal to other two-parent families and their parents' marriage as undeserving of recognition.

Under Arkansas law, when a married couple has a child, the husband of the birth mother is automatically listed on the birth certificate as the child's parent. That is true no matter how the couple conceived the child. Even if the child was born through donor insemination and therefore is not genetically related to the mother's husband, state law requires that he be named on the birth certificate as a parent.

That is exactly the situation Marisa and Terrah and Leigh and Jana were in when their children were born. They were married couples who had children using donor insemination. Still, the state refused to issue them a birth certificate listing both spouses as parents -- for no reason other than the fact that both spouses were of the same sex.

You might ask, "Isn't treating married same-sex couples differently from other married couples exactly what the Supreme Court said states can't do?" You'd be right.

In fact, in Obergefell, the Supreme Court specifically referred to the issuance of birth certificates as one of the rights of marriage that must be provided on an equal basis to same-sex couples. Several of the couples in that case sued for the right to have their marriages recognized precisely because they wanted to have both spouses named on their children's birth certificates. By denying Marisa and Terrah and Leigh and Jana birth certificates acknowledging both parents, Arkansas is doing the exact thing Obergefell forbids.

Unfortunately, the Arkansas Supreme Court did not see it that way. Earlier this year, that court ruled that Obergefell does not require the state to apply its birth certificate law equally to same-sex couples. The logic of the decision was tortured, convoluted, and obviously wrong. It's also out of step with every other court to consider whether Obergefell requires states to issue birth certificates listing both spouses. From Utah to Wisconsin to Florida, courts have unanimously held that same-sex spouses must be treated equally when it comes to their children's birth certificates.

Because the Arkansas Supreme Court's misguided decision is so harmful to same-sex couples raising children, and so clearly at odds with the U.S. Supreme Court's ruling in Obergefell, we at the National Center for Lesbian Rights are representing Marisa, Terrah, Leigh, and Jana in the case and are asking the U.S. Supreme Court to overturn the Arkansas ruling. A decision on whether to hear the case, which is titled Pavan v. Smith, could come as soon as this week.

Arkansas is not alone among the states in trying to undermine the high court's decision in Obergefell. Some states have tried to deny married same-sex couples certain benefits or protections available to other married couples. The Texas Supreme Court recently heard arguments in a case challenging a Houston ordinance mandating that same-sex and different-sex spouses must be given the same benefits. Incredibly, Texas state officials are arguing that Obergefell does not require equal treatment of same-sex spouses because they cannot biologically procreate -- the very same rationale for discrimination that the Supreme Court squarely rejected in Obergefell.

Other states have introduced a wide range of legislation targeting married same-sex couples. Last year, Mississippi became the first state to enact a sweeping law that would allow government employees and private citizens to discriminate against married same-sex couples under the guise of "religious freedom." Other states have passed laws allowing even publicly funded adoption agencies to refuse on religious grounds to place children with married same-sex couples.

These and other examples of states trying to deny the freedom to marry show why the Supreme Court must step into the Arkansas case. The court needs to remind states that it means what it says when it issues important constitutional rulings like Obergefell, and that compliance is not optional. Such intervention is necessary to ensure respect for our constitutional design and the rule of law.

In the end, our constitutional liberties only have meaning as long as all parties respect and abide by the decisions of the U.S. Supreme Court, which is charged with the ultimate responsibility of interpreting them. In this case, the Arkansas Supreme Court has defied that fundamental principle, and the justices should move quickly to correct it.

CHRISTOPHER STOLL is a senior staff attorney at the National Center for Lesbian Rights.

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Christopher F. Stoll