A circuit judge's order affecting how birth certificates are issued has the potential to nullify the Arkansas Health Department's authority to designate parents on the documents, state lawyers said in an emergency petition to the state Supreme Court on Wednesday.
The attorney general's office has asked the high court for an immediate stay on Judge Tim Fox's order, which removes gender-specific descriptions from the state's birth-registration statutes. The high court had not acted by the end of the day.
Fox's decision came in response to a lawsuit against the Health Department by three married same-sex couples who complained that the agency treats heterosexual parents better than gay parents.
Officials deny that, saying regulations are based on biology and don't discriminate by marital status, gender or sexual orientation.
Fox found the terms were rendered unconstitutional by the U.S. Supreme Court ruling that legalized gay marriage in June.
The decision would equalize parents, regardless of sexual orientation, on birth certificates, as the federal court's ruling required, he said.
At least one of the plaintiff couples in the lawsuit obtained an amended birth certificate for their child Wednesday morning. But couples who were not parties in the suit were denied revised certificates.
In Wednesday's appeal to the Supreme Court, state lawyers describe Fox's ruling as "over broad," warning that there will likely be "confusion, uncertainty and irreparable harm" if the Health Department is required to abide by it.
"The circuit court's declaratory judgment has possibly removed ADH's authority to designate any person as a parent on the original birth certificate of any child born in Arkansas," Assistant Attorney General Colin Jorgensen wrote in the 16-page filing.
The portion of the judge's ruling that allows same-sex parents to both be listed on their child's birth certificate when they marry after the birth violates the law, Jorgensen stated in the petition.
"With this seemingly simple ruling, the circuit court makes a sweeping proclamation that any stepparent can be listed as a parent on a child's birth certificate without a court order. This is not the law, for any couple or any child," the petition states.
"The circuit court's ruling ... rewrites family law, and it completely disregards the law's focus on the individualized best interests of children when considering potential parent-child relationships where there is no biological relationship."
Without the sections of the law that the judge deemed unconstitutional, the birth-registration statute could be interpreted to mean that the Health Department has no authority to designate anyone as a parent, Jorgensen wrote.
"Respectfully, ADH believes that the circuit court is wrong about this," the petition states. "[Affected] subsections explicitly govern who appears as a parent on the birth certificate of a child born in Arkansas, and without these provisions (or some variation), there is potentially no statutory authority for ADH to list any person as a parent on an original birth certificate of a child born in Arkansas."
The judge denied the state agency's request to delay implementation of his ruling, stating that when constitutional rights are at stake, the courts have an obligation to act quickly. The plaintiff parents, and others like them, have been denied their rights for years, he wrote.
"If, upon proper application by the state, the Arkansas Supreme Court desires to issue a stay that deprives the plaintiffs, and all other similarly situated Arkansas citizens, of their constitutional rights pending the appeal of this matter, the justices have been elected to judicial positions with the authority to issue such a stay," Fox wrote.
"This court, however, will not allow its authority to be used to deprive these Arkansans any longer of their constitutional rights."
The judge also ordered the Health Department to amend the birth certificates of the three babies born to the plaintiff families so that the nonbiological parent is listed on the record. That portion of his ruling will not be appealed.
The families said they need the birth certificates to recognize both spouses so they can get insurance coverage for their infants, ages 5 months to 10 months, through the unlisted spouses.
The plaintiffs are two Little Rock couples, Marisa and Terrah Pavan -- who obtained their revised certificate -- and Leigh and Jana Jacobs, and Courtney Kassel and Kelly Scott of Alexander.
Metro on 12/03/2015