Supreme Court Strikes Down Law Excluding Same-Sex Parent from Birth Certificate

In Pavan v. Smith, a per curiam (unauthored) decision heard without briefing or oral argument, the U.S. Supreme Court reversed an Arkansas Supreme Court judgment that an Arkansas statute, which allows only the biological mother of a child born to a same-sex married couple to be listed on the birth certificate, is constitutional.

Terrah and Marisa Pavan married in New Hampshire in 2011, and Terrah gave birth to a child in Arkansas in 2015. The Arkansas Department of Health issued a certificate bearing only Terrah’s name based on a provision of the Arkansas code specifying that “[i]f the mother was married at the time of either conception or birth . . . the name of [her] husband shall be entered on the certificate as the father of the child.” This provision applies even if a child is conceived through artificial insemination, as the Pavan’s daughter was, and it is impossible that the mother’s husband is the child’s biological father.

In Obergefell v. Hodges (2015) the Supreme Court held that the Constitution allows same-sex couples to have civil marriages “on the same terms and conditions as opposite-sex couples.”

According to the Court, Arkansas’s birth certificate law denies same-sex couples the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” This is because an opposite-sex couple similarly situated to the Pavan’s – applying for a birth certificate after giving birth to a baby conceived through artificial insemination – would receive what the Pavan’s were denied: a birth certificate bearing the name of the mother and the mother’s spouse.

The Court rejected the State’s argument that a birth certificate is simply a device for recording biological parentage. The Court noted that the State’s birth certificate law does not merely allow, but requires, the Department of Health to issue a birth certificate listing a mother’s husband as a child’s parent even when it is impossible that that her husband was the child’s biological father (e.g. in the case of a child conceived by way of anonymous sperm donation).

Notably, Justice Gorsuch, along with Justices Thomas and Alito dissented. These Justices didn’t believe this case merited a summary reversal which is generally reserved for cases where the law is “settled and stable, the facts are not in dispute, and the decision below is clearly in error.” Arkansas has repeatedly conceded that it must afford same-sex parents the same benefits as opposite-sex couples per the artificial insemination provisions of Arkansas law—and has changed the birth certificate in this case.