More than a year after the U.S. Supreme Court ruled in favor of same-sex marriage nationwide, a team of LGBT legal advocates is calling on justices to reaffirm the decision.
In a 38-page petition, the legal advocates seek to overturn an Arkansas ruling against placing the names of both lesbian parents on a child’s birth certificate.
In December, the Arkansas Supreme Court upheld a state law requiring the Arkansas Department of Health to label a birth certificate with the “paternity of the person” when that person is born. That means for lesbian parents, the state will place the name of the birth mother, but not the spouse, on the birth certificates of their children.
The petition argues the Arkansas decision undermines the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which ruled states must grant married same-sex couples the same benefits under the law as they would opposite-sex couples.
“The issue is of critical importance to families across the country,” the petition says. “Arkansas’s discriminatory Birth Certificate Law is far from an outlier. Many states have statutes that have not been updated to reflect the impact of Obergefell and thus continue to use gendered terms when directing the issuance of birth certificates to children born to married couples.”
As the petition points out, the Obergefell decision explicitly identifies “birth and death certificates” as one of the “aspects of marital status” states must administer in equal manner to both same-sex and different-sex married couples.
The petition presents a singular question before the Supreme Court: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.
The trio of legal groups that filed the petition for certiorari are the National Center for Lesbian Rights, Arkansas attorney Cheryl Maples, who represented the lesbian couples in the case before the Supreme Court, and the D.C.-based law firm Ropes & Gray.
Shannon Minter, legal director of the National Center for Lesbian Rights, said in a statement allowing the Arkansas Supreme Court decision to stand denying birth certificates to lesbian parents “will invite officials in other states to do the same.”
“Rather than treating married same-sex couples and their children equally, as Obergefell requires, this ruling marginalizes these families and deprives them of the security that marriage is intended to provide,” Minter said. “We are asking the Supreme Court to put a stop to this dangerous development and send a clear message to other states that Obergefell meant what it said.”
It takes a vote of at least four justices to grant a writ of certiorari, or agree to take up a case. Time is limited before the Supreme Court’s term expires in June, but the court could still conference the petition and agree to grant the case before that time.
Among the signers of the petition is Douglas Hallward-Driemeier, an appellate partner at Ropes & Gray who argued in 2015 before the Supreme Court in marriage cases states should have to recognize out-of-state same-sex marriages.
“It is clear that Obergefell confers on married same-sex couples not just some, but all, rights given to married opposite-sex couples as a consequence of their marriage, including the important right to be legally recognized as parents to their children,” Hallward-Driemeier said in a statement.
