U.S. Supreme Court Affirms that Obergell Requires Placing Married Same-Sex Parents on Birth Certificates

Maintaining a tradition of issuing cases impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case).

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificate.

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

JELS has successfully done parentage confirmations in Washington. Every situation is unique and there may be some situations that a parentage confirmation would not be appropriate (i.e., if a child was conceived through intercourse, even if all parties intended the child to be the child of the married couple).  I like parentage confirmations because it does not required either parent to allege that they are not a parent and therefore must adopt their child to become a parent. It should also be less expensive to do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.

Disappointing Parentage Case Out of Idaho

Queer Idahoans had their families narrowly defined, excluding a nonbiological parent from the definition in a recent case, Doe v. Doe, 44419; Supreme Court of Idaho; June 7, 2017.

The case involved a nonmarried couple. In the court’s recitation of facts, it alleged that they were not married because the biomom didn’t not want to formalize the relationship with the nonbiomom. The court concluded that because Idaho’s parentage statute (the statute that defines who is a parent and how you can affirm or rebut your parentage) was clear that the presumption of parentage only applied to married couples and since the couple was not married, the nonbiomom wasn’t a parent (despite the fact their appears to be little to no dispute nonbiomom was involved in ever part of the assisted reproduction decision, there at the birth, and involved in the child’s life as a parent up until the biomom excluded her from the child’s life.

Glaringly absent from the court’s analysis was the fact that the couple’s relationship ended in 2012, for those who have already forgotten our history, same-sex couples were prohibited from marrying in the vast majority of states in 2012. In fact, it was at the end of 2012 that several states, including Washington passed marriage equality (or in the case of Washington, we had a referendum affirming the law passed by our legislature in February 2012). Idaho was not one of those states.

It would take until the June 26, 2015 for the U.S. Supreme Court to uphold marriage equality in Obergefell v. Hodges, 576 U.S. ___ (2015) and outlaw all of the state laws discriminating against same-sex married couples.

The Idaho court refused to create a de facto parentage doctrine and limited an existing decision that perhaps opened the door for nonbiological parents who had acted as parents and formed strong parental bonds with the child from accessing legal rights to the care, custody, and control of  their children.

This means that same-sex couples in Idaho are particularly vulnerable if they have not adopted or confirmed parentage through a court proceeding.

It is worth noting, that the court did not address whether same-sex married couples would be prevented from being presumed to be the legal parents of their child. The court discussed Idaho’s parentage statute, which is gendered (i.e., references “mother’s husband”). The court seemed to indicate that its decision turned not on the gendered nature of the parentage act, but that the couple was not married, with the implication that had the couple been married, the nonbiomom may have been considered a legal parent in the eyes of the court. However, I wouldn’t hold on to this distinction as some sort of bright hope that married same-sex couples will be recognized as parents of their children. The fact that the court failed to address the fact that the parents could not legally marry in Idaho for the entirety of their relationship speaks loudly of a bias that they wanted to hide so as their decision would be less likely to be challenged as discriminatory.

As I have often comment in blogs or presentations – marriage equality does not equal parentage equality. Decisions like this make all too clear how precarious our legal rights to our children can be in the LGBTQI communities. Any parents who have children together who have not adopted or affirmed parentage should seek advice from an attorney in their state.

There are options available. Many states have parentage statutes that include a holding out provision, which means that if you have been living with the child since birth and taking on the role of a parent with the consent of the other party, you may be able to affirm parentage. If you are married, every state should have some law presuming that the child is a child of marriage, and even if the statute is gendered, you could pursue a parentage confirmation.

Second parent adoption (a/k/a stepparent adoption) is the option that many attorneys who practice primarily with LGBTQI clients recommend. While this option always sits badly with me, I do not think an intended parent should have to adopt their own child. However, adoptions have been tried, tested, and affirmed. If you have any concerns your spouse, or if your spouse were to predecease you, their parents, would fight to have you excluded from your child’s life, an adoption may well be the safest option.

Sadly, homophobia is alive and well and we know with the spate of laws passing trying to allow same-sex couples to be denied adoption and foster care placements that homophobia will defeat the best interest of the child for many people. As such, protecting your relationship to your child is crucial.