Pavan v. Smith


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            In Obergefell v. Hodges (2015), the Supreme Court held that the Constitution entitles same-sex couples to civil marriage on the same terms as opposite-sex couples. Pavan v. Smith is one of what promises to be many cases asking the Court to define the parameters of that ruling.

            Terrah and Marisa Pavan were legally married in New Hampshire in 2011. Leigh and Jana Jacobs were legally married in Iowa in 2010. Terrah and Leigh each gave birth to a child in Arkansas in 2015. The children were conceived via anonymous sperm donation. Each couple completed a birth certificate application for their child listing both spouses as the parents—Terrah and Marisa in one case and Leigh and Jana in the other. In response, the Arkansas Department of Health issued birth certificates listing only the birth mother’s name.

            The department’s action was based on its interpretation of Arkansas law. The relevant statute states that for purposes of birth registration, the mother is deemed to be the woman who gives birth to the child. If the mother is married at the time of either conception or birth, her husband is to be listed as the father of the child, even if the child is conceived by artificial insemination. Under state law, this provision does not contemplate application to a same-sex spouse.

            The Pavans and the Jacobs filed suit against department director Nathaniel Smith arguing that the Arkansas statute is inconsistent with the constitutional ruling in Obergefell. The state countered that Obergefellis not applicable because the law centers on the biological relationship between the mother and father and not on the marital relationship of husband and wife. The state trial court struck down the law, but the state supreme court reversed. The United States Supreme Court accepted the case and issued a summary judgment.


Per Curiam.

As this Court explained in Obergefell vHodges (2015), the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.” 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,” we reverse the state court’s judgment. . . .

 [W]hen 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. 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. 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.

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.” 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.” 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. In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.

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. And that is so even though (as the State concedes) the husband “is definitively not the biological father” in those circumstances. 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 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.



To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether §20–18–401 of the Arkansas Code, or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court’s precedents suggest just the opposite conclusion. See, e.g., Michael H. vGerald D. (1989); Tuan Anh Nguyen v. INS (2001). Neither does anything in today’s opinion purport to identify any constitutional problem with a biology based birth registration regime. . . .

I respectfully dissent.