The U.S. Supreme Court today summarily ordered Arkansas to place both names of same-sex couples on birth certificates.

Three justices dissented — new Justice Neal Gorscuh, Joseph Alito and Clarence Thomas. Gorsuch wrote the dissent.


The lead attorney for plaintiffs in the case had hoped for this outcome when he spoke to me last week. Arkansas, in a nonsensical Arkansas Supreme Court ruling, said there was a biological imperative to allow only a biological parent to be listed on birth certificates of children of same-sex couples, though it imposes no such condition on children of opposite-sex couples who achieved pregnancy without contributions from both parents.

Chief Justice John Roberts joined the majority. Said the court of Arkansas’s discriminatory practice:


Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage,” we reverse the state court’s judgment.

The opinion continued:

As already explained, when a married woman in Arkansas conceives a child by means of artificial insemination, the State will—indeed, must—list the name of her male spouse on the child’s birth certificate. And yet state law, as interpreted by the [Arkansas Supreme] court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate. As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.  Obergfell proscribes such disparate treatment.

The Supreme Court, in an unsigned per curiam opinion, found little support for Supreme Court Justice Jo Hart’s biology defense of discrimination.


Echoing the court below, the State defends its birth certificate law on the ground that being named on a child’s birth certificate is not a benefit that attends marriage. Instead, the State insists, a birth certificate is simply a device for recording biological parentage—regardless of whether the child’s parents are married. But Arkansas law makes birth certificates about more than just genetics.

As already discussed, when an opposite-sex couple conceives a child by way of anonymous sperm donation—just as the petitioners did here—state law requires the placement of the birth mother’s husband on the child’s birth certificate. And that is so even though (as the State concedes) the husband “is definitively not the biological father” in those circumstances. Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships:

The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.

The petition for a writ of certiorari and the pending motions for leave to file briefs as amici curiae are granted. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 

The dissenters argued that nothing in the Obergfell ruling prevented a birth certificate scheme based on biology and that there was a rational reason for such a scheme.

What, then, is at work here? If there isn’t a problem with a biology based birth registration regime, perhaps the concern lies in this particular regime’s exceptions. For it turns out that Arkansas’s general rule of registration based on biology does admit of certain more specific exceptions.

Most importantly for our purposes, the State acknowledges that §9–10–201 of the Arkansas Code controls how birth certificates are completed in cases of artificial insemination like the one before us. The State acknowledges, too, that this provision, written some time ago, indicates that the mother’s husband generally shall be treated as the father—and in this way seemingly anticipates only opposite-sex marital unions.

But if the artificial insemination statute is the concern, it’s still hard to see how summary reversal should follow ….

The full opinion can be found at this link,
after scrolling through the summary or orders issued today.

Seeking comments from Attorney General Leslie Rutledge, who defended the unconstitutional rule, and also from the Health Department on its plans to implement a legal procedure. Future hearings before the Arkansas Supreme Court could be interesting. The ruling majority there — only then Chief Justice Howard Brill and now Retired Justice Paul Danielson dissented from the ruling — sometimes reacts sharply to opposite opinions.

Said a Health Department spokeswoman:


ADH is currently reviewing the order to determine next steps and procedural changes required to comply.

The Department added:

If same-sex couples come to ADH Vital Records to amend a birth certificate, Vital Records will take their information. ADH is waiting on guidance from the Arkansas Supreme Court. Once that guidance is received, ADH will expedite orders for these couples.

In another gay rights case, the Supreme Court has decided to hear the appeal of a Colorado baker held by his state to be in violation of state law by refusing to bake a cake for a same-sex couple’s marriage. The case is about businesses in which freedom of expression is also a part of the issue. But it seems to me that if a business can refuse to provide cake for a wedding for people who’s sexual orientation bothers them it could also refuse to rent them a hotel room or serve them a hamburger or rent them an apartment in which to cohabitate.

And speaking of SCOTUS: It declined to take a California case where a lawsuit sought to win 2nd Amendment protection to carry guns outside the home despite a state law against open carry. Only two justices would have heard the case.