The Arkansas Department of Health asked Pulaski County Circuit Judge Tim Fox on Tuesday to stay his order requiring the agency to amend the birth certificates of three babies born to same-sex families.
The agency asserts that Fox's ruling, which he stated from the bench Monday, does not go into effect until it's been put into writing.
Three families, Marisa and Terrah Pavan and Leigh and Jana Jacobs of Little Rock and Courtney Kassel and Kelly Scott of Alexander, along with their children, each under 10 months old, sued to get the birth certificates changed.
In response to the stay request, the families say the agency doesn't have a good reason for Fox to suspend his ruling.
They say they need on the documentation the names of both spouses -- the parent who gave birth and the nonbiological parent -- so the infants can receive health insurance.
The agency would not be harmed by immediately complying with the judge's ruling, but a stay could be "devastating" for the families in the event of an emergency -- if, for example, the babies get sick or a parent dies -- before the Arkansas Supreme Court can consider an appeal, plaintiffs' attorney Cheryl Maples argued in a Tuesday court filing.
Fox ordered that the nonbirthing spouse be added to the certificates while he prepares a written ruling to address the families' accusations that the agency holds gay couples to a different standard from heterosexual parents when it issues the documents.
The Health Department requires the nonbirthing spouse to get a court order to be listed on the child's birth certificate, but authorities don't regularly make heterosexual couples do that, the families complain.
The agency argues that it only draws distinctions based on biology, not gender, marital status or sexual orientation.
Maples argued that the Health Department's sole grounds for asking for a stay is so it can appeal Fox's ruling. But since marriage has now been recognized as a fundamental right by the U.S. Supreme Court, the agency has very little chance of prevailing in an appeal, she said.
The families will be damaged by a stay, while the agency won't be harmed, she argued.
Maples said a May 2014 ruling by Circuit Judge Chris Piazza essentially ordered the agency to issue birth certificates reflecting both parents of children born in same-sex relationships, so state officials can't say they have not had enough time to prepare the appropriate procedures and forms.
At Monday's hearing, Fox indicated that he felt Piazza's ruling, which declared that Arkansas' gay-marriage ban was illegal, might already require the agency to have changed its procedures for married same-sex couples.
But he told the parties he needed more time to study the law.
Metro on 11/25/2015