Same-Sex Parental Birth Registration A Constitutional Right, But Not in Arkansas

Dec 23, 2016
Originally published on January 10, 2017 8:12 am

The Arkansas Supreme Court in early December denied same-sex couples the right to list both parents' names on birth certificates, without a court order. So why does this legal fight over equal access to birth certificates even matter?

Birth certificates, first issued in the early twentieth century to track burgeoning populations across the U.S., recorded place of birth, parentage, marital status, and race. Today, birth certificates are necessary to apply for a passport or government benefits, enroll in public school, join the military, claim insurance benefits and secure a driver's license. When a baby is born, parents are given a worksheet to fill out, providing the date, baby's name, gender, and physical attributes, parents' names, the mother's maiden name, and place of birth. A hospital or birth center administrator formalizes then submits the paper work to a state vital records office for processing. 

Arkansas Vital Records housed in the Department of Health has maintained birth records since 1914. The state’s 14 birth registration statutes cover a spectrum of issues from who can legally apply for a birth certificate to how to record the identity of surrogate mothers. The processing fee, however, remains nominal: just $12 dollars.

But if you are same-sex parents, married or not, the cost is much higher.

“With legal fees can cost as much as $5 thousand dollars,” says Courtney Kassel.

Courtney Kassel and her wife Kelly Scott have two children, a two year old, and four month old, conceived via sperm donation.

“I am the biological mother and we could not get Kelly on the birth certificate without going through a second parent adoption,” Kassel says.

The couple had to hire a lawyer to sort it out. The state of Arkansas, however, does not require heterosexual parents--regardless of marital status or how a child was conceived--to file adoption papers. Unmarried couples are merely required to pay a nominal fee, show a valid ID, and file a Voluntary Acknowledgement of Paternity Affidavit form notarized by a birth certificate specialist when required.

In 2015 Courtney Kassel and Kelly Scott were among three same-sex couples that sued the state of Arkansas in Pulaski County Circuit Court. Judge Timothy Fox heard the case, Smith v. Paven, deciding Arkansas’s birth registration statutes to be unconstitutional under Obergefell v. Hodges--the U.S. Supreme Court ruling that legalized same-sex marriage in the summer of 2015.

Arkansas Attorney General Leslie Rutledge requested and was given a stay on Fox’s ruling, later appealing the decision to the Arkansas Supreme Court.

In early December, the court upheld the state’s birth certificate law, writing, in a majority opinion:

“In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths."

Courtney Kassel’s reaction?

“What if I die? Kelly has no legal rights [to the children]. To me this is hate,” she says.

Arkansas attorney Cheryl Maples, who fought for the right of same-sex couples in the state to marry in Arkansas, represents Kassel and Scott, as well as the two other same-sex couples.

“When the U.S. Supreme Court ruled on the Obergefell decision they made it clear all the rights and privileges cannot be denied to same sex couples,” she says, “and that included birth certificates and death certificates, as part of those rights and privileges that are attached to marriage.”

Cheryl Maples is considering by-passing federal court and appealing her case case directly to the U.S. Supreme Court.

“I think the fundamental right here that is at issue is the fundamental right to marry and the constellation of benefits that come therefrom,” says Danielle Weatherby, an Associate Professor of Law at the University of Arkansas in Fayetteville.

“And whether you like it or not," she says, "in our judicial system we have this doctrine called stare decisis which means that the courts are bound by the decisions from higher courts that came before. This court did not follow, in my opinion, the precedent from Obergefell." 

Weatherby says the state Supreme Court decision runs awry of the fundamental principle that came out of Obergefell.

"That same-sex couples for the purposes of marriage," she says, "and those privileges and benefits that extend therefrom, should be treated the same as heterosexual couples."

Weatherby says birth certificates are critical life documents, and when both parents are not legally listed that can pose all sorts of logistical problems.

Danielle Weatherby also says the state of Arkansas has not done due diligence in overhauling relevant statutes to accommodate Obergefell.

“Whether or not the legislature takes that invitation to do so remains to be seen,” she says.

Last summer a federal judge in Indiana ordered the state to extend rights of parenthood to married same-sex couples. Nebraska, Florida, and Utah also expanded birth registration rules this year.  And in mid-November, the state of North Carolina changed its policies to list married same-sex couples’ names on birth certificates directing all registrars to comply. Louisiana, Ohio, Alabama and Arkansas are among a handful of states that continue to defy the federal marriage equality law.

And Danielle Weatherby says given the overwhelming conservative composition of Arkansas’s incoming legislature, expansion of LGBTQ civil rights will remain stalled. For now.

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