TWO MOMMIES: The state Supreme Court upheld the state's demand that the parents of the newborn at right, Leigh and Jana Jacobs, have to get a court order to list both of their names on his birth certificate.

The Arkansas Supreme Court today upheld state statutes that mandate a court order to list parent names on a birth certificate other than the biological mother and father. The Court threw out the ruling of Pulaski County Circuit Court Judge Tim Fox, who found last year that the state Health Department had violated the U.S. Constitution by refusing to list both parent names of children of same-sex couples (the children of the three couples who were plaintiffs in the case were conceived via sperm donation). Max wrote about one of the plaintiff couples, Leigh and Jana Jacobs, in July. Among other problems, denying same-sex couples the ability to immediately list both names on the birth certificate complicates obtaining health insurance for the newborn under the coverage of the unrecognized parent. The plaintiffs argued that the state does not impose this burden on heterosexual couples even if they are not married, regardless of how the child was conceived or whether the child actually shares a genetic connection to both parents.

Fox’s ruling would have allowed married same-sex couples to list both names on the birth certificate without getting a court order (the state had said it would list another woman as a parent if presented with a court order determining parentage or otherwise granting parental rights to the other woman, or approving an adoption by that woman). Fox found that the state’s rules were unconstitutional in light of the federal Supreme Court’s ruling in Obergefell v. Hodges, which held that the right of same-sex couples to marry is a fundamental right inherent in the liberty of the person, protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.


Attorney General Leslie Rutledge appealed Fox’s ruling to the state Supreme Court, which sided with the state and admonished Fox for what it dubbed “inappropriate comments.”

“The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” wrote Justice Josephine Linker Hart in the Court’s majority opinion. “[It] does not run afoul of Obergefell.


Hart continued:

The question presented in this case does not concern either the right to same-sex marriage or the recognition of that marriage, or the right of a female same-sex spouse to be a parent to the child who was born to her spouse. What is before this court is the narrow issue of whether the birth-certificate statutes as written deny the appellees due process. The purpose of the statutes is to truthfully record the nexus of the biological mother and the biological father to the child. On the record presented, we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute … In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.

In a dissent, Justice Paul Danielson argued that listing a parent’s name on a birth certificate is “a benefit associated with marriage” and noted that “the United States Supreme Court held in Obergefell that states are not free to deny same-sex couples ‘the constellation of benefits that the States have linked to marriage.’ Importantly, the Court listed ‘birth and
death certificates’ specifically as one of those benefits attached to marital status.”


Justices Rhonda Wood and Howard Brill both concurred in part and dissented in part (Brill opened his opinion by quoting Bob Dylan’s “The Times They Are A-Changin'”).

Cheryl Maples, attorney for the three same-sex couples, has not yet decided whether to appeal to the U.S. Supreme Court. Based on Fox and Danielson’s views, she might have a strong argument under Obergefell.

The Court also took the unusual step today of admonishing Fox (Danielson, Wood, and Brill dissented from the admonishment). Fox had said in his order that if a stay was granted while the state appealed, it would deny the couples their constitutional rights — and made reference to the unconscionable delay — more than a year — by the Court of a decision in the “expedited” appeal of the same-sex marriage case.

These comments hurt the feelings of the majority of the Arkansas Supreme Court. “Judge Timothy Davis Fox is hereby admonished for his inappropriate comments made while performing the duties of his judicial office,” stated Hart in her opinion.