For a few hours Friday the Arkansas Department of Health did not issue any birth certificates, per a judge’s order. Gov. Asa Hutchinson eventually issued a directive that the department treat married lesbian couples the same as married heterosexual couples and to include the names of both spouses on birth certificates.
Pulaski County Judge Tim Fox took the action Friday morning, suggesting the state was delaying making a fix to the state’s birth certificate law, which the nation’s highest court said was unjust.
"This case has been pending for over two years and it has been more than six months since the United States Supreme Court ruled the Arkansas statutory scheme unconstitutional," Fox wrote in his order. "There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis."
The judge had threatened to halt the issuing of birth certificates on Nov. 27, giving attorneys for the state and three same-sex couples until Jan. 5 to reach an agreement about language that should be removed from the state law. Fox noted Friday that as the state was "unwilling to mediate using the framework outlined by this court there is no need to further delay the implementation of the United States Supreme Court’s mandate."
On Wednesday Arkansas Attorney General Leslie Rutledge asked the Arkansas Supreme Court to intervene and lift Fox’s order to require remediation. Rutledge also objected to Fox specifically saying she needed to attend the mediation, which had been scheduled for Saturday.
Friday morning Fox set aside the mediation order and told the Arkansas Department of Health to stop issuing new or amended birth certificates. The judge also said he was hopeful the governor would fix the law through executive action.
Meg Mirivel, a spokeswoman for the Arkansas Department of Health, told KUAR News after the judge issued the order that the department was complying.
"We are still capturing the information from hospitals, but as far as issuing the birth certificates, that has stopped for now," she said. "For people who do come in, we are taking their information so that when we are able to start issuing them again, we’ll contact them."
Mirivel said she expected additional developments that day, and indeed a few hours after the order was issued, Governor Hutchinson sent a directive to Arkansas Department of Health Director Nathaniel Smith that Hutchinson said "will comply with the constitutional directives set forth in the United States Supreme Court’s decision." He said it also would comply with the injunction issued by Judge Fox Friday and allow the state to resume issuing birth certificates. READ THE GOVERNOR’S FULL DIRECTIVE HERE.
The governor said the department "must allow female spouses of women who give birth to be listed on their children's birth certificates on the same terms as male spouses of women who give birth."
Mirivel said Arkansas typically issues, amends and replaces roughly 400 to 500 birth certificates a day. 41 people were not allowed to get birth certificates during the time period Friday, she added.
"We did take their information and their payments so that when we did resume we were able to go ahead and get those processed and contact those people as soon as possible."
Rutledge's office declined an interview request, but in a written statement the Attorney General said:
Governor Hutchinson’s directive to the Health Department to issue birth certificates to same sex couples is consistent with the agreement the parties in litigation submitted earlier this week. Judge Fox has been preventing this agreement from becoming effective and we hope he will accept this reasonable solution. It is important to the people of Arkansas that birth certificates continue to be available, and the United States Supreme Court has required equal treatment in issuing them.
