Pavan v Smith: Supreme Court Prevents Attempts of States to Undermine Rights of Married Same Sex Couples


The Supreme Court case Pavan v. Smith, 582 U.S.____ (2017), in a per curiam opinion on June 26, 2017, strengthened the rights protected in Obergefell v. Hodges, 576 U.S. ___ (2015). The decision confronted an attempt by the State of Arkansas to undermine the rights and privileges extended to same-sex married couples through the legal recognition of the parentage.

The case concerns Arkansas laws governing the issuance of birth certificates. Arkansas allows male spouses in heterosexual marriages to be placed on birth certificates regardless of the biological parentage of the child. However, for same-sex marriages, partners were not provided with this same courtesy. The Pavan case follows from two same-sex couples who parent children born in Arkansas in 2015. When the couples attempted to register the children’s birth certificates to list both parents the Arkansas Department of Health returned the birth certificates with only the biological mother listed.

The Arkansas Health Department made its decision based upon Ark. Code §20-18-401 (2014) which specifies that the birth mother shall be listed as such and that if she is married at the time of conception or birth the husbands name shall be entered as the father. There are a few exceptions, such as with acknowledgement of the husband and biological father in which the husband is not listed; however, typically in cases of artificial insemination with sperm donors, the husband is considered to be the father for purposes of the birth certificate. Yet, birth certificates of children conceived in the same manner, via sperm donor, to a married same-sex couple list only the parent with a biological relationship to the child and not the spouse.

The Arkansas State Court held that the law was inconsistent with Obergefell; however, the Arkansas Supreme Court reversed the judgment based upon the law’s reliance on biology, not marital, relationship. The State argued that being named on birth certificates is not a benefit of marriage, but rather a device meant only to record biological parentage.  

The per curiam opinion reversed and remanded the Arkansas Supreme Court decision regarding the Arkansas rules on distribution of birth certificates. The Court determined that it was inconsistent with Obergefell to deny to married same-sex couples the legal recognition of parentage rather than marking mere biological relationships when this is provided to married heterosexual couples. The Court noted that not only can the inconsistency be found through the disparate impact of the law, but recognition on birth certificates was expressly identified in the Obergefell decision.

In Pavan, the Supreme Court reaffirmed the rights of married same sex couples to be registered on birth certificates and in doing so reaffirmed the Court’s decision in Obergefell. This decision is important to note because the Court added strength behind its previous decision and stopped an attempt by Arkansas to undermine their previous ruling.

This blog was written by Leah Hauser at Miles & Stockbridge. Emily Schmidt, a law clerk, assisted in the preparation of this blog post.

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