HISTORY MAKER: Marissa Pavan, with her child, was the lead plaintiff in a lawsuit that made U.S. Supreme Court law acknowledged today by the Arkansas Supreme Court. Michael Hibblen/KUAR

As ordered by the U.S. Supreme Court, a fractured Arkansas Supreme Court today ordered that same-sex couples must be treated the same as opposite-sex couples in the issuance of birth certificates.

But the court again resisted rewriting statutes to provide for equal treatment, as a lower Arkansas court had originally decided.


The Arkansas Court acknowledged that state law was unconstitutional, as directed by the U.S. Supreme Court. That is, opposite-sex couples were presumed to be parents on a birth certificate, but same-sex married couples were not given the same presumption.

An opinion written by Justice Robin Wynne said:


The birth-certificate law must be addressed, but we cannot simply affirm the circuit court’s previous order, which impermissibly rewrote the statutory scheme. An order rewriting a statute “amounts to a judicial intrusion upon the legislative prerogative andviolates the constitutional doctrine of separation of power.”

On remand, the circuit court should award declaratory and injunctive relief as necessary to ensure that same-sex spouses are afforded the same right as opposite-sex spouses to be listed on a child’s birth certificate in Arkansas, as required under Pavan u. Smith, supra. Extending the benefit of the statutes at issue to same-sex spouses will implement the mandate of the Supreme Court of the United States without an impermissible rewriting of the statutes.

Wynne was joined by Chief Justice John Dan Kemp, Rhonda Wood and Shawn Womack.  Womack wrote a separate concurring opinion in which he said he would have additionally required further hearings in circuit court on how the law treats same-sex couples and opposite-sex couples differently in other respects so constitutionality could be considered.

Justices Karen Baker, Jo Hart and Courtney Goodson dissented.  They said they would not have remanded the case to circuit court for a hearing, but would have simply vacated the Supreme Court’s ruling in the case that was voided by the U.S. Supreme Court and declared the state statute void. Baker wrote:


Moreover, despite the State’s urging to take up a pen and set off through the Arkansas Code replacing the words “husband” and “wife” with “spouse” or other gender neutral alternativcs, the truth is that that pen does not belong to us, nor does it belong to the circuit court. The pen belongs to the legislature and it is their duty to determine the best way to address the constitutional infirmity in these two statutes. We cannot fashion the remedy, the authority to do so rests solely with the legislature. Thus, there is no need to remand this matter to the circuit court, which is in no better position and has no more authoriry than we do to rewrite these statutes.