Reach of Same-Sex Marriage Ruling Comes to Supreme Court

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By Kimberly Strawbridge Robinson

In the two years since the U.S. Supreme Court handed down its landmark ruling affirming the right of same-sex couples to marry, courts have been applying its reasoning in cases ranging from family law disputes to tax issues.

Soon the high court will have a chance to weigh in on Obergefell's implications in a case involving the rights of same-sex parents.

Last year the Arkansas Supreme Court said that the U.S. Supreme Court’s same-sex marriage decision in Obergefell v. Hodges, 83 U.S.L.W. 4592, 2015 BL 204916 (U.S. June 26, 2015), doesn’t require the state to list both married same-sex parents on their child’s birth certificate. State law requires that both married opposite-sex parents be listed.

The U.S. Supreme Court was recently asked to review that ruling in Pavan v. Smith , U.S., No. 16-992, filed 2/13/17 .

Predictably, groups disagree over whether Obergefell reaches that issue.

Obergefell only held that states must license same sex marriages and recognize licenses issued by other states—nothing else,” Peter Sprigg of the Family Research Council, Washington, told Bloomberg BNA in an email Feb. 28. The Family Research Council filed an amicus brief in Obergefell in support of the state bans on same-sex marriage.

Obergefell does not extend to the issuance of birth certificates, Sprigg said.

But, parenthood and marriage go “hand and hand,” Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington, told Bloomberg BNA Feb. 28. Hallward-Driemeier represents the same-sex couple here and argued for the same-sex couples in Obergefell.

“This is not an extension of Obergefell, it is Obergefell,” Hallward-Driemeier said.

Holdout States

The “right to marry is a fundamental right inherent in the liberty of the person,” and under the Constitution “couples of the same-sex may not be deprived of that right and that liberty,” the U.S. Supreme Court said in Obergefell.

That decision overturned numerous state laws that limited marriage to between a man and a woman.

“On the whole,” states that refused to recognize same-sex marriages “fell in line” after Obergefell and provided equal treatment to same-sex couples and parents, Hallward-Driemeier said.

But there were some holdouts, he said. He pointed to Alabama as an example.

In 2007, a Georgia court allowed a lesbian woman to adopt her partner’s biological children, whom they had raised together since birth.

But when the couple split up and a custody battle erupted, the Alabama Supreme Court refused to recognize the adoption.

The U.S. Supreme Court summarily, and unanimously, reversed that ruling in V.L. v. E.L., 84 U.S.L.W. 4130, 2016 BL 67919 (U.S. March 7, 2016).

The high court based its decision on a technical ground. But Hallward-Driemeier said the decision shows that even if the justices were split in their decision over the constitutionality of same-sex marriage bans, they were unanimous that states can’t ignore that decision.

Limiting Obergefell

States have generally fallen in line over the specific issue here, too.

At the heart of the case now before the Supreme Court is an Arkansas law requiring that the husband of a married woman be put on her child’s birth certificate. That’s so even if the husband isn’t the biological father.

Every court to have considered such laws has said that, following Obergefell, the gender-specific language must be read in a gender-neutral way to require that all married parents be included on their children’s birth certificates, the Supreme Court petition said.

Every court, except the Arkansas Supreme Court, that is.

The Arkansas Supreme Court said that the state didn’t have to include both married same-sex spouses.

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly,” the state supreme court said.

“Rather, the United States Supreme Court stated in Obergefell that ‘the right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.’”

“The question presented in this case does not concern either the right to same-sex marriage or the recognition of that marriage, or the right of a female same-sex spouse to be a parent to the child who was born to her spouse,” the Arkansas Supreme Court said. “What is before this court is the narrow issue of whether the birth-certificate statutes as written deny the appellees due process.”

Finding that the purposes of the birth certificate law were “to truthfully record the nexus of the biological mother and the biological father to the child,” the Arkansas Supreme Court said that “naming the nonbiological spouse on the birth certificate of the child” isn’t “an interest of the person so fundamental that the State must accord the interest its respect under either statute.”

Obergefell did not address this question, Sprigg said. It’s an issue that’s left up to the states, he said.

Parental Rights

Parental rights of same-sex couples were very much at issue in Obergefell, Hallward-Driemeier said.

One set of plaintiffs in Obergefell was very focused on parenthood, he said.

“Petitioners are a same-sex couple who sued on behalf of themselves and their three young children,” according to one set of Obergefell plaintiffs , April DeBoer and Jayne Rowse.

They are barred under state law “not only from marrying each other but also from jointly adopting their children” because the state “permits only married persons to adopt children as a couple,” their petition said.

Obergefell not only reaches this issue, it was the issue in Obergefell, Hallward-Driemeier said.

Summary Action

It’s not clear, however, that the justices will agree to take the Arkansas case.

It’s “unlikely” they will, Sprigg said, noting that the court “only hears a small fraction of the cases it’s asked to hear.”

But Hallward-Driemeier said the case is ripe for summary action by the court. In such a case, the court would reverse or vacate the lower court decision without additional briefing or argument.

There really isn’t much for the Supreme Court to consider, Hallward-Driemeier said. That’s because they already decided these issues in Obergefell, he said.

Either way, President Donald Trump’s Supreme Court nominee Neil Gorsuch isn’t likely to play a definitive role in the consideration of the case. That’s because all five justices that ruled in favor of the same-sex couples in Obergefell are still on the high court.

(Corrects the states involved in the V.L. v. E.L. litigation.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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