LITTLE ROCK — Members of the Arkansas Supreme Court said Thursday the state must change a law keeping same-sex couples from listing both of their names on their children’s birth certificates, but disagreed on whether a judge or legislators should do it.
The U.S. Supreme Court ruled in June that the Arkansas law is invalid, and state justices on Thursday sent the case that raised the issue back to a lower court. Three justices say Pulaski County Judge Tim Fox impermissibly rewrote the statute and needs to write a new order, while another justice wants Fox to hold additional hearings before making a different finding.
Writing for the majority, Justice Robin F. Wynne said the court couldn’t simply let the order from Fox stand because the circuit judge’s rewrite “amounts to a judicial intrusion upon the legislative prerogative” in violation of the state constitution.
Justice Shawn Womack agreed that the case should go back to Fox, with additional proceedings, but three justices said courts were powerless to fix a law that directed the state Department of Health on how to fill out birth certificates.
Justice Karen R. Baker, in the dissenting opinion, wrote that “despite the state’s urging to take up a pen and set off through the Arkansas Code replacing the words ‘husband’ and ‘wife’ with ‘spouse’ or other gender neutral alternatives, the truth is that the pen does not belong to us, nor does it belong to the circuit court. The pen belongs to the legislature. … We cannot fashion the remedy.”
The state attorney general’s office was “pleased the decision recognized the lower court had no power to rewrite and strike down major portions of the birth certificate statute,” spokesman Judd Deere said.
Three couples had sued the state for the right to amend their children’s birth certificates. After the U.S. Supreme Court ruling, the state Department of Health began issuing birth certificates listing both spouses in a same-sex marriage.
In June, the U.S. Supreme Court rejected Arkansas’ requirement that married lesbian couples had to obtain a court order to have both spouses listed on a birth certificate. Justices said the ruling conflicted with a 2015 order legalizing gay marriage nationwide.
The practice had been that the law generally required the name of the husband to appear on the birth certificate when a married woman gave birth in Arkansas regardless of whether he was the biological father. Same-sex couples want the same presumption applied to the married partner of a woman who gives birth to a child.
When the case was before the state Supreme Court in November 2016, the interim chief justice asked whether it might be best to have legislators change the law. One of his colleagues said addressing same-sex issues “hadn’t been a priority” for the Republican-led Legislature, and a lawyer for the same-sex couples said the lawmakers might never bring the issue up.