Monday, June 26, 2017
In a brief per curiam opinion in Pavan v. Smith, the Court reversed the Arkansas Supreme Court's closely divided opinion regarding same-sex parents being listed on a child's birth certificate. Recall that Arkansas' Supreme Court's majority opinion found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite. The Court, like the dissenting justices in the Arkansas opinion, concluded that Obergefell was determinative. The Court's per curiam opinion stated that the Arkansas Supreme Court's opinion "denied to married same-sex couples access to the 'constellation of benefits that the State has linked to marriage,'" quoting Obergefell.
Importantly, the Court noted, that "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."
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.
Thus, the Court's opinion in Pavan makes it clear that Obergefell applies not merely to marriage, but also to situations in which the marital relationship affects children.