The Arkansas Supreme Court‘s decision this week to overrule a lower court and uphold a law demanding that same-sex couples get a court order to put both parent names on the birth certificate is attracting national attention.

Anthony Michael Kreis, a law professor at Chicago-Kent College of Law calls the decision “outrageous” in a piece in Slate:


The majority astoundingly—and incorrectly—asserted that Arkansas law does not discriminate on the basis of sexual orientation. A basic understanding of family law reveals that, contrary to the justices’ conclusion, something more sinister is afoot.

Kreis notes that under current law, if the woman who gives birth is married, the husband’s name is presumptively placed on the birth certificate. This presumption applies whether or not the husband is actually the biological father. (Obviously, it would be silly to demand proof! Imagine daddy DNA tests on the happy day in the hospital.) Meanwhile, if the mother is not married, the parents can simply sign an affidavit of paternity. Married same-sex couples? They have to get a court order.

Given the lax manner in which the state handles birth certificates for heterosexual couples, it’s hard to see what purpose this serves for the state other than creating bureaucratic hurdles for gay couples.


Here’s Kreis:

The court’s majority utterly failed to understand the constitutional issues at stake, reasoning that the Supreme Court’s same-sex marriage ruling in Obergefell was inapplicable because the right to be named as a parent on a child’s birth certificate is not a benefit of marriage. This twisted logic feels strikingly disingenuous. Arkansas law treats one class of married persons differently than another. Call it sex-based discrimination or sexual orientation discrimination; either way, Arkansas law impermissibly isolates same-sex couples for disparate treatment.

Read the whole thing.


The Human Rights Campaign, meanwhile, also condemned the ruling. “This major ruling tries to limit the scope of last year’s landmark marriage equality decision by the U.S. Supreme Court in Obergefell v. Hodges — despite the fact that the high court specifically listed birth certificates as one of the governmental rights, benefits and responsibilities that marital status confers,” the group said in a statement.

“It is clear that including both married spouses’ names — regardless of whether they are same-sex or opposite sex — on a child’s birth certificate is exactly the kind of benefit of marriage that the U.S. Supreme Court ruled should be extended to same-sex couples,” said Kate Oakley, HRC’s senior legislative counsel in the statement. “This disappointing ruling from the Arkansas Supreme Court is a clear violation of equal protection for married, same-sex couples, as affirmed by the U.S. Supreme Court in Obergefell, and it is a deliberate attempt to undermine the rights of couples who have been guaranteed equality under the law when it comes to marriage.”

The Family Research Council saw things differently:

When the Obergefell decision was handed down, those celebrating it used a simple slogan: “Love Wins.” (The fallacy in that was the assumption that any and every relationship characterized by “love” is constitutionally entitled to be designated a “marriage.”)

Pro-family Americans can be grateful that, at least in the Arkansas Supreme Court, “Truth Wins.”