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Pavan v. Smith

United States Supreme Court

June 26, 2017

MARISA N. PAVAN, ET AL.
v.
NATHANIEL SMITH

         ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS

          PER CURIAM.

         As this Court explained in Obergefell v. Hodges, 576 U.S. ___ (2015), the Constitution entitles same-sex couples to civil marriage "on the same terms and conditions as opposite-sex couples." Id., at ___ (slip op., at 23). In the decision below, the Arkansas Supreme Court considered the effect of that holding on the State's rules governing the issuance of birth certificates. When a married woman gives birth in Arkansas, state law generally requires the name of the mother's male spouse to appear on the child's birth certificate—regardless of his biological relationship to the child. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples: The State need not, in other words, issue birth certificates including the female spouses of women who give birth in the State. Because that differential treatment infringes Obergefell's commitment to provide same-sex couples "the constellation of benefits that the States have linked to marriage, " id., at ___ (slip op., at 17), we reverse the state court's judgment.

         The petitioners here are two married same-sex couples who conceived children through anonymous sperm donation. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents—Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother's name.

         The department's decision rested on a provision of Arkansas law, Ark. Code §20-18-401 (2014), that specifies which individuals will appear as parents on a child's state-issued birth certificate. "For the purposes of birth registration, " that statute says, "the mother is deemed to be the woman who gives birth to the child." §20-18-401(e). And "[i]f the mother was married at the time of either conception or birth, " the statute instructs that "the name of [her] husband shall be entered on the certificate as the father of the child." §20-18-401(f)(1). There are some limited exceptions to the latter rule—for example, another man may appear on the birth certificate if the "mother" and "husband" and "putative father" all file affidavits vouching for the putative father's paternity. Ibid. But as all parties agree, the requirement that a married woman's husband appear on her child's birth certificate applies in cases where the couple conceived by means of artificial insemination with the help of an anonymous sperm donor. See Pet. for Cert. 4; Brief in Opposition 3-4; see also Ark. Code §9-10-201(a) (2015) ("Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman's husband if the husband consents in writing to the artificial insemination").

         The Jacobses and Pavans brought this suit in Arkansas state court against the director of the Arkansas Department of Health—seeking, among other things, a declaration that the State's birth-certificate law violates the Constitution. The trial court agreed, holding that the relevant portions of §20-18-401 are inconsistent with Obergefell because they "categorically prohibi[t] every same-sex married couple . . . from enjoying the same spousal benefits which are available to every opposite-sex married couple." App. to Pet. for Cert. 59a. But a divided Arkansas Supreme Court reversed that judgment, concluding that the statute "pass[es] constitutional muster." 2016 Ark. 437, 505 S.W.3d 169, 177. In that court's view, "the statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife, " and so it "does not run afoul of Obergefell." Id., at 178. Two justices dissented from that view, maintaining that under Obergefell "a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple." 505 S.W.3d, at 184 (Brill, C. J., concurring in part and dissenting in part); accord, id., at 190 (Danielson, J., dissenting).

         The Arkansas Supreme Court's decision, we conclude, denied married same-sex couples access to the "constellation of benefits that the Stat[e] ha[s] linked to marriage." Obergefell, 576 U.S., at ___ (slip op., at 17). 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. See §20-18-401(f)(1); see also §9-10-201; supra, at 2. And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman's female spouse from her child's birth certificate. See 505 S.W.3d, at 177-178. 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. See Pet. for Cert. 5-7 (listing situations in which a parent might be required to present a child's birth certificate).

         Obergefell proscribes such disparate treatment. As we explained there, a State may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." 576 U.S., at ___ (slip op., at 23). Indeed, in listing those terms and conditions—the "rights, benefits, and responsibilities" to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified "birth and death certificates." Id., at ___ (slip op., at 17). That was no accident: Several of the plaintiffs in Obergefell challenged a State's refusal to recognize their same-sex spouses on their children's birth certificates. See DeBoer v. Snyder, 772 F.3d 388, 398-399 (CA6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U.S., at ___ (slip op., at 23). That holding applies with equal force to §20-18-401.

         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. See supra, at 2. And that is so even though (as the State concedes) the husband "is definitively not the biological father" in those circumstances. Brief in Opposition 4.[*] 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.

         It is so ordered.

          GORSUCH, J., dissenting

          Justice Gorsuch, with whom Justice Thomas and Justice Alito join, dissenting.

         Summary reversal is usually reserved for cases where "the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen,450 U.S. 785, 791 (1981) (Marshall, J., dissenting). ...


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