The quixotic fixation among some Arkansas Republicans on maintaining bureaucratic hurdles for same-sex couples is truly something to behold. While a few issues remain to be sorted out, Gov. Asa Hutchinson issued a directive on Friday that largely solved the constitutional problems with the state’s birth certificate procedures, which the U.S. Supreme Court had found in violation of the equal protection clause. It’s a simple fix: If a mother gives birth and has a female spouse, the couple will be treated the same as opposite-sex couples when it comes to a streamlined process for establishing parenthood on birth certificates.
Even Attorney General Leslie Rutledge, who has devoted countless hours to resisting such equal treatment, concluded that it was a “reasonable solution.” You might think that would mark the end of the mess, but Rep. Bob Ballinger is not happy. He wants to keep fighting about birth certificates.
— Bob Ballinger (@Bob_Ballinger) December 8, 2017
A quick review of the kerfuffle that has been largely resolved and which Ballinger would like to re-open: Under the challenged Arkansas law, if the woman who gave birth is married, the husband’s name was presumptively placed on the birth certificate. This presumption applied whether or not the husband was 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 was not married, the parents could simply sign an affidavit of paternity. If the mother had a female spouse, however, the state refused to list the spouse on the birth certificate unless the couple got a court order determining parentage or otherwise granting parental rights to the other woman, or approving an adoption by that woman. This burdensome and demeaning procedure created real-world problems for same-sex couples, such as complicating obtaining health insurance for the newborn under the coverage of the unrecognized parent. Given the lax manner in which the state handles birth certificates for heterosexual couples, it was hard to see what purpose was achieved by refusing presumptive parenthood for same-sex couples, other than creating unnecessary bureaucratic hoops for gay couples to jump through. Indeed, the U.S. Supreme Court concluded that it was a violation of the equal protection clause.
Rather than simply fixing the problem, the state then devoted its energies to dragging its feet and avoiding complying with the Supreme Court’s mandate. There was no particular reason for the state to insist on differential treatment, so it was hard to avoid wondering whether state officials like Rutledge were simply motivated by spite. Their story was that they wanted to defer to the legislature for a fix. But the legislature showed no interest and took no action. That left things at a standstill, with unconstitutional procedures in place, until a judge on Friday issued an order halting all birth certificates from being issued until the matter was resolved. This order finally inspired the governor to issue his directive, which took less than two hours.
It’s worth stepping back here: The end result of the governor’s action is that certain same-sex couples will have the same simple process for birth certificates that opposite-sex couples have. There is really no downside, no harm to anyone. All the state has to do is make some minor changes to a form. Even if one thinks that biological paternity is a vital component of birth certificates, the old regime didn’t serve that purpose to begin with. Presumptive parenthood was granted to opposite-sex married couples even in cases in which the mother conceived by a sperm donor and the husband was known not to be the biological father. And in some cases, certificates for children of unmarried mothers listed no father at all.
Ballinger, however, is so spooked by birth certificates listing same-sex parents that he wants to take time out of the fiscal session to change the law (again, the legislature couldn’t be bothered to resolve an unconstitutionally discriminatory flaw, but Ballinger is now motivated to codify a new roadblock for same-sex parents). Here is Ballinger’s proposed “fix”:
Mother is X, Father is Y, and no presumptions. It should be about birth parents, biology, genetics, and that's it. https://t.co/KE5dRtg79A
— Bob Ballinger (@Bob_Ballinger) December 8, 2017
Ballinger’s aim is to dodge the equal protection issue by asking mothers to identify the biological father and no longer offering the presumption of parenthood to married couples. When asked, Ballinger said that the question would be on the honor system; no effort would be made to confirm paternity.
It is worth noting that Ballinger’s proposal would create additional bureaucratic hassles for married couples who used a sperm donor other than the husband. Ballinger, ostensibly a small government conservative, would rather add hassles for opposite-sex couples than remove them for same-sex couples.
I will leave it to the lawyers to parse whether this elaborate effort to codify discrimination against same-sex couples would pass constitutional muster (I will go out on a limb and predict that it would spark yet another long legal battle). But I think it’s also worth noting, on a practical level, how mean-spirited and pointless Ballinger’s proposal is. Birth certificates, even under the overturned law, made no definitive claim about DNA (and in some cases explicitly list someone who is known not to be the biological father); under Ballinger’s proposal, reliance on the mother’s word means that certificates will hardly be a reliable record of paternity. So what could it possibly mean to assert that it’s “about biology”? We all know how babies are made. I must say, I would be taken aback to learn that the state’s purpose in issuing certificates is to affirm the mechanics of the birds and the bees.
Ballinger says that the governor’s directive is an issue that the legislature will “fix” in the fiscal session. This will require super-majorities since it’s a non-fiscal matter, so Ballinger apparently views the matter as an extraordinary problem in need of an emergency solution. What is Ballinger’s proposal fixing? How might this make our lives better? Who is harmed by listing a same-sex couple as parents on a birth certificate? To repeat, neither the challenged law nor Ballinger’s proposal purport to establish biological paternity, so this isn’t about record keeping. It’s about … what?
The only problem it solves is Ballinger’s own discomfort with same-sex couples being listed on birth certificates. It’s a fixation he simply can’t let go.