Attorney General Leslie Rutledge, naturally, is appealing Circuit Judge Tim Fox’s ruling that allowed the names of three married same-sex couple to appear on their child’s birth certificate.

The state acknowledges important “policy” questions on birth certificates, but says Fox erred in finding the current law was unconstitutional. The attorney general argues that parental rights don’t flow from marriage. For example,  heterosexual couples also face difficulties in adding a non-biological parent to a birth certificate.


The attorney general’s brief in the case, filed yesterday, said:

Some states are already exploring new processes to enable adults who are not biologically related to children to acquire parental rights over children in ways other than adoptions and court orders  Arkansas may do the same, but is not constitutionally required to do so. The Court should recognize that although [the couples] may have reasonable policy arguments, policy decisions are left to the democratic process in the legislature or vote of the people.

And here lies the problem. Since we first wrote about this last year, I’ve seen little tangible evidence of the Health Department, the Board of Health, the Hutchinson administration or anybody in the legislature moving to improve birth certificate procedures to accommodate families with two mommies or two daddies. It is not very hard. Same-sex couples could, for example, be allowed the same affidavit procedure about parenthood given heterosexual couples. Ample precedent in other states exists, in any case, for quick fixes.


Absent a court ruling, I’m afraid it won’t be fixed. Would this legislature give favorable “review” to a Board of Health rule recognizing that equal rights for gay couples is now the law of the land? Not with the Republican strategy in the South to attempt to defeat gay rights by incremental burdens, much as the anti-abortion forces have limited abortion rights. Arkansas already has legislated broad protection to those who discriminate against gay people and attempted to prohibit local civil rights protection. Resistance on birth certificates is just more of the same and Rutledge is nothing if not a reliable proponent of the extreme-right Republican agenda. Family values, remember?

The Arkansas Supreme Court expeditiously stayed Fox’s ruling, preventing justice for untold numbers of parents though the plaintiffs were able to get birth certificates. Sometime this year, the court might rule on the state’s appeal. Given recent political developments on the court, the outlook isn’t promising.


The state could moot this case, however, by fixing birth certificate procedures. 

Board of Health? Legislature? Yes, the current session is limited to budget matters, but additional matters could be added. The chances of this legislature not wanting to make gay people wait at least another year for consideration are slim, of course. It will be two years at least since foundational civil rights ruling before Arkansas will even consider delivering on the many fruits that should attach to those rulings. And then it will probably resist.

Justice delayed …..