Adapting Adoption: Birth Certificate Disputes in Post-Obergefell America

Posted By: Jameson Rammell, Ashley Repka, Tyler Respondek, Jesse Ritchey, Jackson Ross, Amy Salamon, and Tyler Sankey

image2Introduction

In June 2015, the Supreme Court issued a landmark decision in Obergefell v. Hodges, recognizing same-sex couples’ fundamental right to marry. The Court found that deprivation of this fundamental right and liberty violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and it further held that all States must recognize same-sex marriages performed in other States. In light of this opinion, various questions have arisen regarding the impact on other, related rights and interests of same-sex couples. Chief among such questions are those involving the structure of same-sex couples’ legal relationships to children for whom they act as parents. Specifically, while most states have issued two-parent same-sex birth certificates following the Obergefell decision, a handful of states (including Arkansas) have refused to do so. Based on the Court’s recognition of the fundamental right to marry, and the inextricable legal link between marriage and parental rights, is this refusal constitutional? Must states permit the names of both parents in a same sex marriage to appear on a birth certificate?

States’ arguments rely primarily on the assertion that birth certificates are biologically-based documents and that same-sex couples retain the option to be listed on the certificate by either obtaining a court order or by going through the formal adoption process. In response, same-sex parents point to the legal, versus biological, basis of “parental presumption” statutes, and argue that any difference in treatment between heterosexual spouses and same-sex spouses under birth certificate statutes amounts to unjust, unconstitutional discrimination based solely on sexual orientation.

Given the Supreme Court’s decision in Obergefell, it is likely that this refusal by States to permit both same-sex parents’ names on birth certificates is unconstitutional. First, we will provide a summary of the Obergefell decision and the relevant legal dispute in Arkansas. Second, we will show that Arkansas’ refusal to include both parents’ names violates rights and liberties rooted in the Due Process Clause and emphasized in Obergefell. Third, we will illustrate that the refusal is unconstitutional under the 14th Amendment’s guarantee of equal protection due to its unequal treatment based on sexual orientation. Fourth, we will refute the argument that the 10th Amendment prevents the federal government from requiring Arkansas to comply with Obergefell. And finally, we will address counterarguments based on First Amendment religious freedom claims.

Obergefell and the Right to Marry

In Obergefell v. Hodges, 14 same-sex couples and two men whose same-sex partners were deceased challenged statutes in Michigan, Kentucky, Ohio, and Tennessee that defined marriage as a union between one man and one woman, as well as the States’ refusal to recognize marriages legally obtained in other states. The couples argued that the States’ refusal to recognize their right to marry violated the Fourteenth Amendment’s guarantees of equal protection and due process.

In his majority opinion, Justice Kennedy first outlined the history of marriage in the United States. Kennedy noted the historical expansion of the right to marriage that accompanied societal shifts in thinking and acceptance regarding gender, race, and sexual orientation, noting that, “[t]he history of marriage is one of both continuity and change.” The Court traced this change as applied to the legal status of homosexuals from Bowers v. Hardwick (1986), which upheld Georgia laws criminalizing homosexual acts, to United States v. Windsor (2013), which held that the limiting definition of marriage as between one man and one woman in the Defense of Marriage Act was unconstitutional.   

The Court next examined the Due Process Clause issue, noting that the liberties guaranteed under the Due Process Clause extend to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Justice Kennedy stated that it is the Court’s duty to interpret the Constitution and to determine which individual interests are so fundamental that they should be protected by the State. The right to marry is one such fundamental interest, and has been guaranteed protection by the Supreme Court on multiple occasions. In Loving v. Virginia, the Court upheld the right to marry as applied to interracial couples. In Zablocki v. Redhail, the Court upheld this right for fathers who were behind on child support. And, in Turner v. Safley, the Court upheld the right to marry for prison inmates. In order to determine whether these cases’ protection of the right to marry should extend to same-sex couples, the Court analyzed why marriage has been defined as a fundamental right under the Constitution, laying out four main reasons:

  1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy;

  2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;

  3. The right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and

  4. Marriage is a keystone of our social order.

The Court found that all four reasons apply just as readily to same-sex couples as to heterosexual couples. Decisions about marriage, no matter the couple’s sexual orientation, are highly intimate. Same-sex couples, just like opposite-sex couples, should have the right to associate intimately and to have their union recognized; merely preventing the punishment of their union is not enough. By refusing to officially recognize same-sex couples, states harm the children of such couples, because they prevent the recognition, stability, and predictability that marriage offers. Finally, it is unfair and demeaning to prevent same-sex couples from taking part in an institution that is so central to society and daily life.

Having determined that the marital liberties afforded by the Due Process Clause extend to same-sex couples, the Court then noted this liberty’s inherent connection with the concept of equal protection. Restrictions on a fundamental right such as the right to marry alert the court to possible unequal protection. Here, the state laws burdened the liberty of same-sex couples and abridged “central precepts of equality”, disrespecting and subordinating same-sex couples based on sexual orientation. Therefore, the court held the State’s refusal to marry was unconstitutional; states must allow same-sex couples to exercise their fundamental right to marry.

Justice Kennedy also addressed and dismissed a number of arguments put forward by opponents of same-sex marriage. In response to the argument that such an issue should be left to the democratic process and to the states to decide, the Court noted that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Therefore, the Court was not required to deny individuals a fundamental right to marry simply because that right had not been universally reflected in the polls or in the ballot box. Additionally, the Court rejected the argument that same-sex marriage would lead to fewer traditional, heterosexual marriages as same sex marriage would sever the connection between procreation and marriage. This argument was deemed as both unrealistic and ignorant of the reasons why people marry. Finally, the Court recognized the fear that the legalization of same-sex marriage would encroach on some individuals’ religious freedom. Though the First Amendment protects religious organizations and persons in the teaching, expression, and practice of their faith, “[t]he Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as is accorded to couples of the opposite sex.”

Arkansas and Same-Sex Birth Certificates After Obergefell

In July 2015, following the Supreme Court’s recognition of the legal validity of their marriages, three female same-sex married couples requested that the Arkansas Department of Health amend their children’s birth certificates to include both spouses. In all three instances, the Department refused. The couples subsequently sued the Director of the Arkansas Department of Health, seeking a declaration that the Arkansas statutes governing birth certificates were unconstitutional in light of Obergefell. They also asked that the court order the Department to end its policy of refusal and to issue corrected birth certificates for their children.

The plaintiffs took issue with two specific Arkansas statutes concerning birth certificates. The first statute, A.C.A. § 20-18-401, governs the issuance of birth certificates at the time of a live birth within the state. The portions at issue, subsections (e) and (f), use “gender restrictive” language, allowing the “husband” of the “wife” to be listed as the “father” of the child, absent a court order or affidavit stating otherwise. In limiting its discussion to paternity, fathers, and husbands, the statute fails to account for female same-sex spousal parents. The second statute, A.C.A. § 20-18-406, governs the issuance of new or amended birth certificates and does not use the same ‘gender restrictive’ language. Instead, the statute refers to a child’s “legitimation”, presumably following the marriage of his or her parents.

On December 1, 2015, the Circuit Court of Pulaski County struck down the offending portion of A.C.A. § 20-18-401, stating that:

In that statute, the General Assembly has intertwined the concepts of “parent” with certain rights and presumptions occurring within a marital relationship, using now impermissible limiting spousal terms of “husband” and “wife”. Such language categorically prohibits every same-sex married couple, regardless of gender, from enjoying the same spousal benefits which are available to every opposite-sex married couple.

Applying the statute as amended, the court noted that the remaining substance of the statute allowed either spousal parent of the child to provide additional information to the hospital or Department of Health in order to have their spouse listed, alleviating any prior discriminatory effect. In addressing the second relevant statute, the court took an alternative approach; the court noted that the word “legitamated” was not legislatively defined, and could therefore be interpreted to include same-sex couples. In conclusion, Judge Tim Fox wrote that, “[The] decision affords the plaintiffs, as same-sex couples, the same constitutional rights with respect to the issuance of birth certificates and amended birth certificates as opposite-sex couples.”

Following this Memorandum Opinion, the State appealed the decision and requested that the Supreme Court stay the opinion; that is, they requested that the State be able to operate as before until the case was argued to and decided by the Arkansas Supreme Court. The Supreme Court granted the stay, ordering that only the plaintiffs’ children’s birth certificates be amended, with no change in State policy pending the appeal.

Due Process

The Due Process Clause states that no state shall “deprive any person of life, liberty, or property, without due process of law.” In light of the Supreme Court’s decision in Obergefell v. Hodges, this clause supports the position that all states have a constitutional obligation to allow both members of a same-sex couple to have their names placed on the birth certificates of their children.

Traditionally, the Due Process Clause has been understood as a constitutional mandate that the government must follow fair procedures before they may deprive someone of life, liberty, or property. However, more than just ensuring procedural rights, this clause has also been viewed as a proxy for other rights, and many believe that this clause can serve as “a barrier to legislation curbing . . . individual liberties.” These two purposes of the due process clause may be referred to as “procedural due process” and “substantive due process.”

One constitutional law scholar offered the following example to clarify the difference between substantive and procedural due process:

Substantive due process asks the question of whether the government’s deprivations of a person’s life, liberty or property is justified by a sufficient purpose . . . The Supreme Court has said that under the word liberty in the due process clause, parents have a fundamental right to the custody of their children. Procedural due process means that the government must give notice and a hearing before it can permanently terminate custody. Substantive means the government must show a compelling reason that would demonstrate an adequate justification for terminating custody.”

In light of this distinction, the question then becomes: does the government have a compelling reason that would justify not allowing both members of a same-sex couple to place their names on the birth certificates of their children? Following the Obergefell decision, it seems unlikely that any such reason exists.

Typical arguments advanced by those who oppose extending this right to same-sex couples are centered on the idea that these couples are unable to provide children with a healthy environment in which to grow up. However, in light of the Supreme Court’s recent decisions, it seems that same-sex couples are constitutionally entitled to every right extended to opposite-sex couples. Additionally, the question whether same-sex couples are somehow inferior to opposite-sex couples in terms of raising children has been thoroughly answered in the negative.

The Supreme Court has called the right to marry, build a home and raise children a “central part” of the liberty protected by the Due Process Clause. In Obergefell, the Court stated that denying same-sex couples the benefits of marriage causes material burdens. They said due to their inability to marry, “same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” The Court further explained that since States attach such great significance to the institution of marriage, excluding homosexual couples from marriage announces that they are unequal in important respects. The Court stated, “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.” It seems clear that the Court believes same-sex couples are entitled to the same rights and protections as opposite-sex couples. It follows then, that denying same-sex couples the right to have their names on the birth certificates of their children would deny them “the same legal treatment as opposite-sex couples,” considering opposite-sex couples have the legal right to place both spouses’ names on their children’s birth certificates. Therefore, this denial would violate the same-sex couple’s constitutional rights.

Drawing from Lawrence v. Texas, a 2003 Supreme Court decision regarding same-sex relationships, the Obergefell court stated that the rights protected by the Due Process clause “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs . . . like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution.” Moreover, it was stated that decisions concerning marriage are among the most intimate that an individual can make. The Court drew from their earlier opinion in United States v. Windsor, a 2013 case that struck down as unconstitutional the federal definition of marriage as between one man and one woman. The Obergefell court further stated that by “giving recognition and legal structure to their parents’ relationship, marriage allows children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

The Obergefell court said that marriage provides permanency and stability for children, which is in a child’s best interests. The Court noted that many same-sex couples have provided loving and nurturing homes to children. It also recognized that most States have allowed homosexuals to adopt children, both as individuals and as couples. The Court reasoned that excluding same-sex couples from marriage would conflict with the central benefits of stability, recognition, and predictability that marriage offers and would cause children to suffer the stigma and humiliation of believing that their family is somehow lesser. By refusing to allow the names of both of a child’s parents on a birth certificate, State governments would be sending same-sex families a similar message of inferiority. Only allowing one parent’s name on the birth certificate of a child “stigmatizes the child by erasing the love and contributions of one of the child’s parents, sending a state-sanctioned message to the child and everyone else who sees the child’s birth certificate that the child and both parents are not a recognized legal family, and improperly labeling the child as having unwed parents.” Considering this potential stigmatization and humiliation, States should permit same-sex couples to place both of their names on the birth certificates of their children.  

The Court expressed concern over the potential harm of a particular Michigan law on children of same-sex couples, absent the couple’s right to marry. The Michigan law, in an effort to ensure that each child could only have one woman as his or her legal parent, permitted only heterosexual married couples or single individuals to adopt. Specifically, the Court spoke of the complications that could arise in an emergency involving a same-sex couple’s child. Schools and hospitals would treat these children as if they only had one parent, and the parent not listed on the birth certificate would have no parental rights. Moreover, should tragedy strike a same-sex parent, the other parent would potentially have no legal right over this child whom she had not been permitted to adopt, regardless of the fact that she may be a central figure in the child’s life. The Court’s concern over these matters illustrates the importance of allowing the names of both members of a same-sex couple to appear on their child’s birth certificate. Allowing both names would further the goals of permanency and stability, as well as the potential issues the Michigan law could present.

The Court has suggested that it would be contradictory to recognize a “right of privacy with respect to other matters of family life” and not with respect to the decision to enter the marital relationship. Extending this same reasoning to the birth-certificate dispute, it seems clear that States must permit the names of both parents in a same-sex marriage to appear on a birth certificate, because the Court specifically held that choices involving family relationships and childrearing are protected by the Constitution. Further, the Court noted that it would be contradictory to recognize a right of privacy regarding other matters of family life but prohibiting certain marriages. Similarly, here, it would be contradictory to refuse to formally recognize same-sex couples’ relationships to their children while allowing this formal recognition for opposite-sex couples.

The Supreme Court has made it very clear that same-sex couples are constitutionally entitled to the right to marry and are deemed equal to opposite-sex couples in the eyes of the law. State governments have no compelling reason for denying same-sex couples the right to have both parents’ names on the birth certificates of their children, and there are many compelling reasons to extend this right. Therefore, the Due Process Clause supports the position that States are under a constitutional obligation to allow same-sex couples to place both of their names on the birth certificates of their children.

Equal Protection

The Equal Protection Clause derives from section 1 of the 14th Amendment of the Constitution and reads, “[N]or shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The 14th Amendment was ratified shortly after the Civil War in 1868 and, in light of its historical context, there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against African Americans. As a whole, the 14th Amendment marked a large shift in American constitutionalism by applying substantially more constitutional restrictions on the states than had existed before the Civil War.

Though its original purpose was to protect African Americans from discrimination, the Supreme Court has increasingly used the broad language of the Equal Protection Clause to guarantee that all individuals are afforded fair treatment in the exercise of fundamental rights and to eliminate distinctions based on discriminatory criteria. When examining state governmental action involving a suspect classification or a fundamental right, the Court applies a strict scrutiny standard. Under this standard, the state action will be struck down unless the government can prove that the action is narrowly tailored to achieve a compelling state interest and is the least restrictive means available to accomplish that governmental interest.

image1The practical result of this strict scrutiny test is that state-government sponsored discrimination based on a citizen’s race, gender, ethnicity, religion, or national origin is almost always unconstitutional. Korematsu v. United States, which upheld Japanese internment during World War II, and Grutter v. Bollinger, which upheld affirmative action based upon racial diversity, provide examples of rare cases in which a racially discriminatory law has been upheld under the strict scrutiny test. When state action does not involve a suspect classification or a fundamental right, the court applies the rational basis standard, and the action will be upheld as long as the law is rationally related to a legitimate government interest.

One contemporary controversy regarding the Equal Protection Clause is whether the Court should designate sexual orientation a suspect classification subject to strict scrutiny. Though the Supreme Court has not expressly stated what level of scrutiny courts should apply to claims involving sexual orientation (see Wolf v. Walker at 1010), in Smithkline Beecham Corporation v. Abbott Laboratories (2014), the 9th Circuit held that classifications based on sexual orientation are subject to heightened scrutiny stricter than that of the rational basis standard, relying in large part on the Supreme Court’s review in United States v. Windsor. In United States v. Windsor, the Supreme Court held a federal statute unconstitutional on Fifth Amendment grounds for depriving the equal liberty of citizens in same-sex marriages.

In its recent same-sex marriage opinion, Obergefell v. Hodges (2015), the Supreme Court seemed to apply a heightened level of scrutiny on the basis that certain state actions violated the fundamental right to marry, but did not explicitly discuss whether or not sexual orientation is a suspect classification. In Obergefell, the Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

Though the court’s landmark decision in Obergefell is limited to requiring states to recognize and allow same sex marriages, it is likely that the decision’s scope extends to the rights that attach to marriage via the guarantee in the Equal Protection Clause. One such right that currently attaches to heterosexual marriage only is the marital paternity presumption. This common law presumption holds that when a married woman gives birth to a child, the law presumes that the husband is the biological father. Therefore, the husband’s name is placed on the child’s birth certificate as the child’s legal parent, absent a court determination to the contrary. This is consequential, as birth certificates constitute evidence of legal parentage for both parties in a heterosexual marriage.

Many birth certificate statutes, like the one in question in Pavan v. Smith (ACA §20-18-401), utilize gender-specific terms which alienate homosexual married couples from the rights afforded to heterosexual couples. Specifically, these birth certificate statutes prevent the state from listing two mothers or two fathers on the birth certificate unless there is a court order. As a result, married homosexual couples must go through an extra step in order to establish the non-biological parent as a legal parent through the process of adoption. State statutes such as ACA §20-18-401 present a clear equal protection issue, as these statutes implicate the fundamental right to marriage and those rights that attach to marriage.

In Gartner v. Iowa Department of Public Health (2013), officials used the marital presumption as grounds for the State’s refusal to list the non-biological mother on the birth certificate of her spouse’s biological child. The Iowa Supreme Court ordered that the marital presumption should apply equally to homosexual couples, as artificial insemination “explicitly disturbs the biological assumptions of the presumption.” Accordingly, the court concluded that the inconsistent treatment of homosexual and heterosexual couples was a result of prejudicial resistance to same-sex parenting rather than a legitimate governmental purpose.

State government resistance to putting both homosexual parents on a child’s birth certificate runs contrary to Obergefell’s holding that states must provide married, same-sex couples with the same “constellation of benefits” of marriage that heterosexual couples are afforded under the Equal Protection Clause. As a result, to comply with the holding in Obergefell v. Hodges, state statutes regarding marriage should be interpreted or amended in a gender-neutral way so as to guarantee the marital presumption to all married couples, regardless of sexual orientation. Such action would permit the names of both homosexual parents to appear legally on the birth certificate of their child, thereby affording married, same-sex parents the same rights as their straight counterparts. Therefore, in light of the holding in Obergefell, it is likely that the Equal Protection Clause also supports the position that States are under a constitutional obligation to allow same-sex couples to place both of their names on the birth certificates of their children.

The Tenth Amendment and the Rights Retained by the States

In Obergefell v. Hodges the Supreme Court stated that “decisions about marriage are among the most intimate that an individual can make.” Perhaps the only decision more personal is the decision of a couple to have a child. A Same-sex couple’s decision to have a child sets the stage for a clash between the couple’s choice, the state’s power, and the power of the federal government. As the recent Arkansas court’s decision suggests, state governments may sometimes attempt to circumvent the right of a person to be named as a parent; but from where do states derive their belief in that authority?

The Tenth Amendment is often used as a last line of defense against perceived incursions on the sovereignty of the several states. The Tenth Amendment itself reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” At first glance, the Amendment appears to verify the arguments of those looking to justify a state’s action. The Amendment clearly says that the states and the people retain the powers not specifically given to the federal government. However, the meaning of this statement may not be as expansive as its supporters contend. Staunch protectors of Tenth Amendment rights believe the Amendment empowers state governments in a number of ways, primarily by allowing these state governments free reign over any area not outlined in Article 1, Section 8 of the United States Constitution.

However, that view is only a cursory look at the Tenth Amendment, which allows someone to believe that the federal government has no power in certain areas; this leads to the belief that each government has separate powers that never interact. Based on this view of government powers, some argue that states’ absolute and sole powers include the power to dictate which individuals will be recognized as a child’s parents on a birth certificate. However, various Supreme Court cases cast doubt on that belief.

The most pivotal is McCullough v. Maryland, where the court specifically rejected the idea that the state and federal governments’ powers were entirely separate. Instead, the Supreme Court outlined a test of the Federal Government’s power, holding that the federal government’s actions were acceptable if: 1) the ends sought by the federal government are legitimate; 2) the means being used by the government are adapted to achieve that end; and 3) the Constitution does not prohibit the action.

image3Those that oppose including both same sex parents on a birth certificate will likely draw on the Tenth Amendment to show that the federal government does not have the right to legislate to achieve this end. However, there are many areas where the federal government can limit states’ power, because the Fourteenth Amendment made major elements of the Constitution applicable to the states in Chicago, Burlington and Quincy Railroad v. City of Chicago. Additionally, the Fourteenth Amendment itself allows for enforcement on the states without any additional support. Therefore, if the state’s power infringes on certain individual rights the federal government has the power to act.

The State’s Police Power

The Tenth Amendment correctly recognizes a state’s police power, meaning the rights the government retains to make laws and regulations for the benefits of the community. Many of these powers on their own are not within the power of the federal government to regulate. For example, the Federal Government could not pass a law that requires all children to be vaccinated prior to entering school. However, state governments do have that power because of their general police powers.

Traditionally, prior to Obergefell v. Hodges, the power to regulate and license marriages was viewed as a strict state police power. Similarly, the power to make laws governing the administration of birth certificates within the state has been recognized as one of the state’s police powers. Historically, that recognition might have been enough to keep the birth certificate away from the Federal government’s oversight using the Tenth Amendment.

This argument relies on the Tenth Amendment as an additional bolster against perceived incursions into the state government’s power. Despite the traditional placement within the state’s police power, attempting to limit an individual’s parental rights likely violates the Fourteenth Amendment. Due to this violation and the federal government’s established right to enforce individual rights against state governments’ attempted violations, it is likely that the Tenth Amendment will offer no refuge against an order to place a same-sex couple’s names on a child’s birth certificate.

Religious Freedom and LGBT Discrimination

In Justice Thomas’s dissent in Obergefell, he argues that a Supreme Court ruling creating a constitutional right to marriage “threatens the religious liberty our Nation has long sought to protect.” Justice Thomas also notes that some states were created as “havens for religious practice.” Arkansas, like many other states, has passed a state Religious Freedom Restoration Act (RFRA), titled Act 975. Opponents of the Obergefell decision believe laws such as Act 975 protect religion from intrusion by the federal government. Further, they argue that because the LGBT community is not specifically mentioned in the legislation, it is not discriminatory. Given the political context in which Arkansas’ RFRA was enacted, however, Act 975 suggests the state’s detestation of the Obergefell decision and its desire to limit it. It is not difficult to view these state RFRA’s as an attempt to limit LGBT rights. The Arkansas Attorney General, for example, has opined that a Justice of the Peace may refuse to officiate a same-sex marriage.

Many state governments and religious groups have used the Free Exercise Clause as an avenue to limit the rights of the LGBT community. For example, Arkansas’ RFRA and birth certificate laws inherently reflect Christian values and limit the rights of the LGBT community based on these religious principles. Though this was not an issue addressed at length by Justice Kennedy in Obergefell, it is likely that these religious freedom arguments in regard to homosexual couples may be addressed by the Supreme Court in the future.

The birth certificate statutes at issue here (ACA §§ 20-18-401 and 20-18-406) do not operate under the guise of the Free Exercise Clause. However, it can be argued that traditional, Christian ideals are implicit in these birth certificate statutes. Like Act 975, ACA §§ 20-18-401 and 20-18-406 do not explicitly mention same-sex couples, but do imply that the parents must be male and female. This limitation reflects traditional Christian values by defining marriage as that between a man and a woman.

Though these Arkansas birth certificate statutes do not mention same-sex couples explicitly, the statutes significantly affect the LGBT community. These gender-specific birth certificate statutes reflect the policy of the Arkansas Health Department, which can be changed by the Arkansas Legislature. Given the passage of Act 975, the Arkansas Legislature is extremely unlikely to change the Health Department’s policy on its own initiative. Religious influence is implicit in the application of the statute and renders the possibility of changing it unlikely. This religious influence can also be seen in the Arkansas Court’s hesitation to strike down the statutes and allow all same-sex couples to be listed as parents. Here, members of the LGBT community seeking a child with the full rights of a parent are left without a solution absent a Court determination in their favor.

A related aspect of the right to marry is the right to start and raise a family. Additionally, it can be expected that the Court will address the battle between religious freedom and LGBT rights, such as states’ using religious freedom arguments as a veil to limit LGBT rights to same-sex couples as parents. Further, the Court may also address laws that do not explicitly mention same-sex couples and do not seem to disparage anyone, but reflect religious values that limit the fundamental rights of others. Though Justice Thomas may have been correct that states were created as “havens for religious practice,” states are not, however, havens solely for religious groups. To a certain extent, it may be difficult to remove religious beliefs from state legislation, but legislation becomes problematic when the beliefs of the majority limit the rights of other minority citizens, such as here. For these reasons, it is likely that religious freedom arguments will fail to the extent that the rights of homosexual couples are disregarded.

Conclusion

Religious and political opposition to homosexual marriage will likely continue to provoke attempts to limit or circumvent Obergefell’s reach. States may become vehicles for such attempts, likely acting under the guise of upholding States’ rights against the federal government. Arkansas’ refusal to list both same-sex parents’ names on birth certificates is but one instance of this sort of reactionary response to a politically controversial extension of Constitutional protection. However, as we have shown, attempts of this nature are likely to fail due to their violation of same-sex couples’ fundamental right to marry, which is accompanied by a guarantee of protection equal to that of opposite-sex couples. Preventing the placement of both parents’ names on birth certificates is harmful to children and families, and strips couples of the liberty granted to them by the Due Process Clause. Therefore, Arkansas is likely required to allow the inclusion of both same-sex spouses’ names on their children’s birth certificate.

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Adapting Adoption: Birth Certificate Disputes in Post-Obergefell America