US Supreme Court Smacks Down Arkansas’s Attempt to Treat Married Same-Sex Parents Unequally

“Obergefell is crystal clear: marriage is marriage, and equal is equal.”

(New York, NY, June 26, 2017) – Today, the U.S. Supreme Court, in a summary reversal, overturned a decision of the Arkansas Supreme Court, in Pavan v. Smith, saying loud and clear that states may not treat same-sex married couples differently than other married couples, including when it comes to issuing two-parent birth certificates to children born to same-sex spouses. Lambda Legal filed a friend-of-the-court brief in support of the same-sex families and praised the Court’s action. “This decisive ruling is strong medicine for states and others that think they can resist the full equality due to same-sex couples and their children, mandated as the law of the land in the Supreme Court’s landmark Obergefell decision issued exactly two years ago today,“ said Susan Sommer, Associate Legal Director and Director of Constitutional Litigation for Lambda Legal.  

From today’s opinion, the Justices wrote: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified ‘birth and death certificates.’ That was no accident…”

“This is a win for children in the state of Arkansas, and for same-sex couples and their families across the nation,” said Sommer. “The Arkansas Supreme Court’s decision flew in the face of Obergefell, undermining the dignity and equality of LGBT families and the government’s obligation to protect children. It was also an outlier; every other state that had considered this question got it right and ruled in favor of treating LGBT families equally. The historic ruling in Obergefell explicitly tells us that the spouses of birth parents, regardless if they are of the same sex or different sex, must be listed on the birth certificates of their children. Obergefell is crystal clear: marriage is marriage, and equal is equal. We congratulate our colleagues at National Center for Lesbian Rights on this great victory.”

Plaintiffs were two married same-sex couples living in Arkansas with their children, who were conceived using anonymous sperm donors. The state of Arkansas refused to issue accurate birth certificates for their children, listing both spouses as parents, even though the state issues two-parent birth certificates when different-sex couples conceive using donor sperm. In December of 2015, the couples filed suit in trial court and received a favorable decision. The state appealed the decision to the Supreme Court of Arkansas, which reversed the lower court’s ruling and upheld the state’s denial of accurate birth certificates. The couples then requested review by the U.S. Supreme Court, and Lambda Legal filed a brief in support of that request. The Supreme Court, without additional briefing or oral arguments, reversed the Arkansas Supreme Court in a procedure called “summary reversal.”

Lambda Legal has successfully litigated and advocated on behalf of married same-sex couples and their children seeking legal recognition in Iowa, Louisiana, Maryland, Mississippi, New York, North Carolina, Ohio, South Carolina, Texas, Wisconsin, and elsewhere. Its Ohio case, Henry v. Hodges, was part of the six marriage cases consolidated in the historic June 2015 U.S. Supreme Court ruling in Obergefell v. Hodges that declared unconstitutional all state laws banning marriage for same-sex couples.

Lambda Legal lawyers on the brief include Susan L. Sommer, Camilla B. Taylor and Kenneth D. Upton, Jr., in addition to co-counsel, Stuart F. Delery, Douglas C. Dreier and Ryan N. Watzel of Gibson, Dunn & Crutcher LLP.