NEIL GORSUCH: Big blunder in Arkansas birth certificate case, Slate writes.

An important analysis in Slate by Mark Stern explains how badly Neil Gorsuch got the facts and legal analysis wrong in writing a dissent to the U.S. Supreme Court decision holding that Arkansas unconstitutionally discriminated against married same-sex couples by preventing the listing of both parents on birth certificates.

Stern notes — as I”ve tirelessly and tiresomely noted — that the Arkansas Supreme Court and Gorsuch were wrong in claiming a “biological” ground for the discrimination. If Arkansas attempted to require disclosure of biological parentage on birth certificates of all parents, they might have a point. It doesn’t. An artificial insemination statute specifically allows a non-biological parent (father) to be listed as parent.  Arkansas just didn’t allow the law to cover same-sex couples.


Stern figures that the dissent was Gorsuch’s anti-gay philosophy at work. He wants to resist granting same-sex couples the full “constellation” of marital benefits provided in the Obergfell same-sex marriage ruling. Stern speculates that Gorsuch was trying to provide a roadmap to biological justification for rulings hostile to gay rights

But he got one thing flatly wrong.


First, he wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place.

This is important. Because other courts will note the dissent for ill reasons.  The Arkansas case was mentioned in the Texas Supreme Court decision I wrote about earlier today. There, the court seems to be encouraging a strategy to make gay couples fight for every single of the hundreds of rights granted by law to married couples. They’ll have to disprove a presumption that there’s a rational reason for differentiating in every case between rights of gay married couples and straight couples.

Coincidentally, I received some documents from the Arkansas Health Department today in  response to an FOI request. I was looking for some explanation for their change of heart over a couple of days this week, when the Department decided to go ahead and follow Supreme Court precedent on birth certificates rather than wait for an Arkansas Supreme Court hearing to formalize the order. They allowed same-sex parents to amend birth certificates for children born of artificial insemination to same-sex couples.


Among the information I received were text messages between Robert Brech, general counsel at the Health Department, and Ann Purvis,  the department deputy director.

Brech commented that Colin Jorgensen, who’d defended the state law for the attorney general’s office, had said that the decision seem limited and Arkansas’s situation could have been fixed with a simple change to the state’s statute dealing with artificial insemination.

Purvis: No so sure. Let me read again more closely.

I think the Ark. Supreme Court may take its direction from Gorsuch’s dissent.

Brech: I hope they do.

I do think the court will take Gorsuch’s lead. Given that the majority would have read it, wouldn’t they have made it clear it wasn’t limited.

They can’t even write a 3 or 4 page opinion that is clear? Wonder about other states as well.

The case, and the discussion, illustrate how hard this can be if the state chooses to make it so.  Women can become pregnant by means other than artificial insemination for purposes of motherhood in a marriage with another woman. Women can use donor eggs for pregnancy. And never mind the milkman scenario for straight couples. Will the Arkansas Supreme Court and legislature head down a path that requires interrogation of ALL parents on means of conception or onlyof  same-sex couples? This could be easy, but in Arkansas it won’t be. The legislature long ago should have granted presumed parental status to both parents in a married couple at birth,. not sought as Justice Jo Hart did, to cook up some flimsy biological excuse for discrimination.

As Stern wrote in tearing apart Gorsuch’s work:


But that’s not going to work, because state family law is not just about biology. There is no state in the country that limits either legal parentage or birth certificates to biological parents.