Supreme Court Orders States to List Same-Sex Parents on Birth Certificates; Gorsuch Dissents

By Mark Joseph Stern, Slate

27 June 17

n Monday, the Supreme Court ruled that the Constitution requires states to list married same-sex couples on their children’s birth certificate. The per curiam decision marks a landmark victory for gay rights, confirming that the court’s decision in Obergefell v. Hodges protects all rights relating to marriage, not simply the recognition of marriage itself.

In Obergefell, the court held that the Due Process and Equal Protection clauses of the 14^th Amendment require states to extend marriage rights to same-sex couples “on the same terms and conditions as opposite-sex couples.” Arkansas began issuing marriage licenses to same-sex couples—but when these couples had children, the state refused to list both parents on the birth certificate. The Arkansas Department of Health insisted that its rule was simply a recognition of biology.

As the court noted on Monday, however, there was a huge problem with this claim: Arkansas already lists nonbiological parents on birth certificates. When a woman conceives via artificial insemination, for example, her child’s birth certificate lists her husband as the father. Indeed, when a woman gives birth in Arkansas, state law states that her husband be named as the father—even if he is known not to be a biological parent. These laws are quite sensible, as birth certificates are used for vital transactions in child-rearing, such as school enrollment and medical treatment. And yet, Arkansas refused to extend its birth certificate rules to cover same-sex parents.

Because Arkansas law already “makes birth certificates about more than just genetics,” the court held, the state may not inflict such “disparate treatment” on same-sex couples. In Obergefell, the court explained that the Constitution grants these couples “the constellation” of “rights, benefits, and responsibilities” that “the states have linked to marriage.” It also “expressly identified” birth and death certificates as two of those rights. Therefore, states cannot deny same-sex couples any rights related to birth certificates that are granted to opposite-sex couples. And so, the court ruled, Arkansas must begin listing same-sex parents on birth certificate.

Justice Neil Gorsuch dissented, joined by Justices Clarence Thomas and Samuel Alito. Gorsuch wrote that “nothing in Obergefell indicates that a birth registration regime based on biology” runs afoul of the 14^th Amendment. His dissent should be deeply alarming to LGBTQ advocates; it indicates an eagerness to read Obergefell with implausible narrowness, and a hostility to the extension of civil rights to same-sex couples.

The court also announced on Monday that, next term, it will hear arguments in Masterpiece Cakeshop v. Civil Rights Commission. That case centers around the question of whether states may compel businesses to serve same-sex couples if the business owner opposes same-sex marriage. It isn’t hard to guess where Gorsuch will fall.