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Pavan, et al. v. Smith (U.S. Sup. Ct.)

READ CAC's BRIEF IN Pavan, et al. v. Smith

In Pavan, et al. v. Smith, the U.S. Supreme Court is being asked to consider whether the Arkansas Supreme Court properly concluded that Arkansas may, consistent with the Fourteenth Amendment, prevent a mother’s same-sex spouse from being listed on her child’s birth certificate, even though the general rule under Arkansas law is that a mother’s opposite-sex spouse must be listed on the child’s birth certificate, even when he is not the child’s biological parent.

In 2015, Marisa and Terrah Pavan, a legally married same-sex couple, gave birth to a daughter who had been conceived through an anonymous-donor sperm donation.  They applied for a birth certificate for their daughter, listing both women as parents on the application.  However, when the Arkansas Department of Health issued the birth certificate, it listed only Terrah, who had given birth to their daughter, as a parent.  The Pavans, along with another same-sex couple, brought suit against the Department of Health, claiming that the Department’s refusal to list both parents on the birth certificate violated the Fourteenth Amendment of the U.S. Constitution.  Although the lower state court ruled for the Pavans, the Arkansas Supreme Court reversed, holding that the Arkansas birth certificate laws were not inconsistent with the Fourteenth Amendment because “[t]he purpose of the [state birth certificate] statutes is to truthfully record the nexus of the biological mother and the biological father to the child.”  The Pavans then filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Court to review their case.

On March 15, 2017, CAC filed a friend-of-the-court brief on behalf of the same-sex couples seeking equal treatment under the Arkansas birth certificate laws.  Our brief argues that the decision of the Arkansas Supreme Court is inconsistent with the text and history of the Constitution, as well as Supreme Court precedent.  As the Supreme Court recognized in Obergefell v. Hodges, the Fourteenth Amendment guarantees all persons an equal right to marry the person of their choice.  Indeed, the Amendment’s guarantee of substantive liberty, together with its guarantee of equal protection for all persons, protects fundamental rights central to the individual dignity and autonomy of all persons.  Moreover, the Fourteenth Amendment and the Supremacy Clause together require that the Fourteenth Amendment’s equal protection guarantee must be enforced against contrary state law.  Here, the decision of the court below, which upheld Arkansas’s disparate treatment of similarly situated same-sex and opposite-sex couples and denied same-sex married couples the full constellation of benefits associated with marriage, cannot be squared with either the Fourteenth Amendment’s text and history, or the Supreme Court’s recognition of the right to marry as “fundamental under the Constitution.”  Accordingly, as our brief states, the Supreme Court should agree to review this case and reverse the ruling below.

The Court is expected to decide this spring whether to grant review.

Briefs filed by CAC: