(Originally published as my Mombian newspaper column.) Several court cases involving same-sex parents could be helped by a recent U.S. Supreme Court ruling—but the cases also underscore the obstacles we are still facing and suggest some needed actions for all of us to take.
The U.S. Supreme Court on June 26 overturned the Arkansas Supreme Court in Pavan v. Smith, a case involving two married, two-mom couples who had children with the help of anonymous sperm donors. The Arkansas court had argued that the purpose of birth certificates “is to truthfully record the nexus of the biological mother and the biological father to the child” and that nonbiological mothers have no right to be on them.
The U.S. Supreme Court disagreed, noting that Arkansas law itself requires that when a different-sex couple uses sperm donation, the husband’s name, not the sperm donor’s, goes on the birth certificate. “The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents,” they wrote. Because of that, and consistent with the 2015 Obergefell marriage equality decision, which says states must offer all married couples the same “rights, benefits, and responsibilities,” Arkansas may not prevent married same-sex couples from having both of their names on their children’s birth certificates.
Pavan may now impact several same-sex parentage cases in other states. Cathy Sakimura, family law director of the National Center for Lesbian Rights (NCLR), which is counsel in two such cases in Arizona, said via e-mail that “Pavan requires states to apply all the benefits of marriage equally to same-sex spouses, including questions about parental rights, so it has a huge impact on these pending cases.”
Let’s take a closer look. In McLaughlin v. Jones, an Arizona family court ruled last October that Suzan McLaughlin, a nonbiological mother, was a parent and had the right to seek custody and visitation of her child after separation. Her former spouse Kimberly McLaughlin has, however, appealed to the state Supreme Court.
In Turner v. Steiner, however, a different panel of the Arizona family court ruled on June 22 that a nonbiological mother is not entitled to parental recognition, saying that nothing in Obergefell “mandates that any laws dealing with maternity and paternity be changed or expanded.”
Shannon Minter, legal director at NCLR, argued at the Arizona Supreme Court on behalf of Suzan McLaughlin on June 27. Sakimura also told me, “We will be asking the court in Turner to reconsider its decision in light of Pavan,” and asserted, “Pavan requires Arizona to treat same-sex spouses who conceived children through donor insemination exactly the same as they would treat different-sex spouses who conceived through donor insemination.”
A similar case in Mississippi, Strickland v. Day, also raised the question of biology. Chris Strickland and her former spouse Kimberly Day had planned their family together, but one child had been adopted solely by Kimberly because Mississippi banned both marriage and adoption by same-sex couples at the time. Kimberly also gave birth to their second child, using sperm from an anonymous donor.
When they divorced, however, the court ruled that Chris was not a parent to either child. Most shockingly, it said she was not a parent to their second child because their anonymous sperm donor constituted “an absent father” and even though he “may never be known, and probably won’t be … he is still a father.” The court nonetheless ordered Chris to pay child support and awarded her visitation. Lambda Legal in June filed an appeal on her behalf with the Mississippi Supreme Court.
NCLR and Lambda are both skilled and experienced legal organizations with superb track records. I have little reason to doubt they will prevail. Yet three things about these cases still leave room for concern.
Coupling these cases with the Texas Supreme Court’s recent ruling that said public employees in same-sex marriages do not have an inherent right to government-subsidized marriage benefits, one might reasonably worry that continued attacks on marriage equality will eventually make it a shell with no substance. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented from Pavan. If Justices Ruth Bader Ginsburg or Anthony Kennedy retire soon, as is rumored, a more conservative court might not rule as favorably on the next case to question the extent of Obergefell’s influence. Still, Pavan feels like a major stake in the ground. As NCLR Executive Director Kate Kendell noted on the NCLR website, the U.S. Supreme Court issued a rare “summary reversal” of the Arkansas ruling, “finding its decision so clearly erroneous” that it did not require oral arguments or any additional briefing.
Secondly, ever since Obergefell, I have heard many LGBTQ parents ask whether second-parent adoptions or court judgements of parentage are still necessary if both parents are on their children’s birth certificates. The answer seems to be a resounding yes, as NCLR advises on its website. As we’ve seen above, Arizona and Mississippi allow same-sex spouses to be on their children’s birth certificates, but that hasn’t been enough to establish clear legal parentage for nonbiological spouses. Spread the word; this needs to be known.
Lastly, I worry that by trying to deny a former spouse or partner parental status, some LGBTQ parents are willing to endanger the progress we have made in recognizing LGBTQ families. This has been an ongoing problem for many years in many states. As individuals, we need to rise above this, even when relationships end bitterly. As a community and a society, too, we need to make clear that such behavior is reprehensible.
Pavan was a major step forward, but it is far from the end of the journey.
