Supreme Court Rules: Marriage Equality – Arkansas Birth Certificate Law

Supreme Court Rules for Marriage Equality - Arkansas Birth Certificate Law must mirror federal laws.Within days after giving birth, parents normally order a birth certificate for their child. This document is necessary for transactions such as making medical decisions, enrolling a child in school, etc. One of the most important pieces of information required is the name of the parents. However, what happens when you are told that one parent can’t be listed on the birth certificate? What do you do when you are told that as a parent, your name can’t be listed or associated with your child on what should be a legal document?

Earlier this year, the United Supreme Court ruled that the Arkansas birth certificate law, A.C.A § 20-18-401, is unconstitutional to the extent that it treats similarly situated same-sex couples differently from opposite-sex couples.

Leigh and Jana Jacobs, and Terrah and Marisa Pavan, both same-sex married couples decided to have a child. In 2015, Leigh and Terrah each gave birth in the State of Arkansas. After each couples’ child was born, both couples attempted to receive birth certificates for their child by completing the required paperwork. Although each couple completed the paperwork, Leigh listing Jana as the other parent and Terrah listing Marisa, the Arkansas Department of Health issued the certificates only listing the birth mother as the parent and purposely excluded Jana and Marisa. The State’s department decision was based on A.CA. § 20-18- 401, which supports displaying only the mother or in some cases mother and father on birth certificates. This provision specifically excluded the same-sex couples. However, to the Jacobs’ and the Pavans; this meant that the Arkansas birth certificate law was a violation of the United States Constitution.

As a result, the couples filed a suit in Circuit Court against Nathaniel Smith, Director of the Arkansas Department of Health, claiming that by not allowing them to list their same-sex spouse violated the mandate of Obergefell v. Hodges, which provided that states may not deny same-sex married couples the same rights, benefits, and responsibilities as opposite-sex couples. The trial court agreed with the Pavan’s. However, when this case went before the Arkansas Supreme Court, the Justices were divided on this issue and reversed the judgment viewing that “the statute centered on the relationship of the biological mother and biological father to the child, not on the marital relationship of husband and wife”. This meant that it was not in violation of constitutional rights or Obergefell v. Hodges.

A petition for writ of certiorari was granted, (a document filed by the losing party asking the U.S. Supreme Court to review the decision of the lower court) and the records of this case were sent to the United States Supreme Court for review and the decision by the Arkansas Supreme Court was reversed. On October 19, 2017, the case was sent back to the Arkansas Supreme Court, and the ruling was made to ensure that circuit courts allowed same-sex spouses the same right as opposite-sex spouses, to be listed on a child’s birth certificate in the State of Arkansas.

However, things did not go as smoothly as some would hope. Two months passed after the ruling on October 19th and birth certificates still were not being issued to same-sex couples in the State of Arkansas.  In December of last year, Pulaski County Circuit Judge Timothy Fox ordered the State and the parties of the case to mediate on this issue in hopes to amend the law, and comply with the U.S. Court’s ruling.

After resistance from Arkansas Attorney General Leslie Rutledge, Judge Fox ordered the State Department to halt from the issuance of birth certificates until state officials complied with the ruling of the U.S. Supreme Court. According to the Associated Press, Judge Fox stated in his order that “he was hopeful that the governor could fix the law by executive action.” The same day on December 8, 2017, Governor Asa Hutchinson directed the state department to commence with the issuance of birth certificates, and to list both spouses on birth certificates issued to same-sex married couples.

For more information regarding this case, you may view:

Smith v. Pavan-Supreme Court of Arkansas Ruling

Pavan v. Smith-Supreme Court of the United States Ruling

If you decide to petition the Court regarding surrogacy or would like a consultation regarding same-sex marriage laws in the state of Arkansas, it will be beneficial to seek legal counsel from an experienced Arkansas family law attorney who will be able to assist you.

Tripcony, May & Associates provides services in surrogacy, annulments, pre and postnuptial agreements, divorce, child custody, visitation, grandparent rights, and other family law matters throughout the State of Arkansas.  They currently have two locations in Little Rock and Hot Springs, Arkansas. Please contact one of their offices for a free consultation at (501) 296-9999, between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday.  You may also view www.tripconylawfirm.com for additional information.

LaTrenia A. Ceasar, MSLS, Freelance Writer, has been an employee at Tripcony, May & Associates since 2015. About the Author:
LaTrenia A. Ceasar, MSLS, Freelance Writer, has been an employee at Tripcony, May & Associates since 2015.