Supreme Court strikes down same-sex Arkansas birth certificate rule

In its final days of the 2016-17 term, the Supreme Court issued a brief ruling that you may have overlooked. It holds that the Constitution prohibits the State of Arkansas from refusing to note that a newborn baby's parents are same-sex couples. This case is notable for Justice Gorsuch's dissenting opinion.

The case is Pavan v. Smith, decided on June 26. The female parents were married in Iowa and conceived children through an anonymous sperm donor. When the children were born, the state would only list the birth mother's name on the birth certificate. Yet, if heterosexual couples have children, both their names are on the birth certificate.

The Supreme Court holds that Arkansas's treatment of same-sex couples violates the Equal Protection Clause. Recall that a few years ago, the Court held in Obergefell v. Hodges that the Constitution makes it illegal for states to prohibit same-sex marriages. The Court now applies the reasoning in Obergefell to this case, reasoning that the state "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'" The Court adds, "As a result [of this unequal treatment], 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.'”

While the Court decided this case in a per curium opinion, a brief unsigned ruling, three Justices dissent: Gorsuch, Thomas and Alito. Justice Gorsuch writes the dissent, making it clear that his appointment to the Court will continue the conservatism of his predecessor, Justice Scalia. He writes:

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.