LITTLE ROCK — The Arkansas Supreme Court on Thursday overturned a circuit judge’s ruling that the U.S. Supreme Court’s decision on gay marriage entitles same-sex couples to have both spouses’ names listed on their children’s birth certificates without a court order.
A majority of the justices ruled that Sebastian County Circuit Judge Tim Fox erred in his ruling last December in a lawsuit filed by three lesbian couples who claimed they should not have to seek a court order to have both spouses’ names listed on their childrens’ birth certificates.
Two Arkansas laws governing birth certificates that are at issue in the case predate the legalization of gay marriage in the state and do not address the possibility of a child having two parents of the same sex.
The three lesbian couples named as plaintiffs in the suit have received the birth certificates they sought. Fox said his ruling applied to all same-sex parents in the state, and the state Supreme Court later stayed his ruling pending the state’s appeal, which did not apply to the named plaintiffs.
In its majority opinion Thursday, the Arkansas Supreme Court said the U.S. Supreme Court’s June 2015 ruling that legalized gay marriage did not reach the issue in the present case.
The Arkansas high court said the state has a legitimate interest in requiring that biological parents be listed on birth certificates, in the absence of a judge’s order directing otherwise.
“The purpose of the statutes is to truthfully record the nexus of the biological mother and the biological father to the child,” the court said in the opinion written by Justice Josephine Hart.
The Supreme Court rejected the plaintiffs’ claim that the existing laws violate gay parents’ right to equal protection under the law.
“It does not violate equal protection to acknowledge basic biological truths,” Hart wrote.
In oral arguments last month, state Solicitor General Lee Rudofsky suggested the Supreme Court could resolve the issue by changing the word “husband” to “spouse” in the state’s artificial insemination law or ruling that “husband” should be interpreted to mean “spouse.”
Hart wrote in the court’s majority opinion that “this court is not a legislative body, and it cannot change the wording of the statute.”
The majority also admonished Fox for making comments to the effect that if the state Supreme Court stayed his ruling it would deprive people of their constitutional rights and that the high court previously has deprived people of their rights.
“A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity, and impartiality,’ not only of this court, but also of the entire judiciary,” Hart wrote.
In a dissenting opinion, Justice Paul Danielson wrote that the U.S. Supreme Court’s decision legalizing gay marriage applies to all benefits associated with and flowing from marriage.
Danielson said Arkansas law provides that the husband of the mother be listed on a birth certificate based on his marital relationship to the mother, regardless of any biological relationship to the child, so “there can be no reasonable dispute that the inclusion of a parent’s name on a child’s birth certificate is a benefit associated with and flowing from marriage.”
Danielson also said he disagreed with the decision to admonish Fox.
“The fact that members of this court have personally taken offense to the circuit judge’s remarks is not a sufficient basis for suggesting that those remarks violate our disciplinary rules,” Danielson wrote.
Chief Justice Howard Brill wrote a separate opinion that opened by quoting several lines from Bob Dylan’s song “The Times They Are a-Changin’.”
Brill outlined several scenarios involving different ways same-sex couples might have children and said the executive, legislative and judicial branchs of government must adjust with the changing times.
“It is time to heed the call,” Brill wrote.
Justice Rhonda Wood wrote in a separate opinion that “states cannot constitutionally deny same-sex couples the benefits to marital status, which include equal access to birth certificates.” She said the Legislature should rewrite the laws on birth certificates to reflect the legalization of gay marriage.
Judd Deere, a spokesman for Attorney General Leslie Rutledge, said Thursday that Rutledge “is gratified that the state Supreme Court agreed that the circuit court far exceeded its authority by unilaterally re-writing major sections of statutes passed by the General Assembly. If any changes are appropriate it is the job of legislators to do so, not the circuit court.”
Cheryl Maples, attorney for the plaintiffs, said she was “very disappointed” with the ruling. She said she was discussing with her clients whether to seek a review by the U.S. Supreme Court.
The gay-marriage case the U.S. Supreme court decided last year was a consolidation of several cases, including one on the issue of birth certificates, so that decision did address the issue in the Arkansas case, Maples said.
“They’re raising these children, and both of them should be able to be on the birth certificate, just like heterosexual couples are,” she said.