People of the same sex who want to make a matrimonial commitment to one another, one recognized in all the legal ways a heterosexual marriage is, won a monumental victory in the U.S. Supreme Court last year in Obergefell vs. Hodges.
That court case established that marriage is a fundamental right of every American adult, regardless of the sex of his or her intended spouse. It's not the government's business, the court essentially determined, to play the role of matchmaker. If two men want to say their "I do's" with each other, the government's only involvement is in making sure all married Americans get the same legal benefits and burdens of the institution, according to the court.
The court's decision was a societal shift that could barely be measured on the Richter Scale. But if anyone thinks the case settled every question on how society accounts for same-sex couples, they are wrong. A nation that for 239 years recognized only marriages between man and woman will require some time to untangle the ramifications of same-sex marriages.
"If you and Mona were ever to dance, how do you decide who leads?" Seinfeld's George Costanza asked his ex-girlfriend after she began dating a woman. "Do you take turns, do you discuss it beforehand, how does that work?"
"You're an idiot," was the ex-girlfriend's response.
Well, George was often idiotic, but the 1980s sitcom comically reflected how Americans were making adjustments to their thinking about same-sex relationships.
The Arkansas Supreme Court last week reflected much less comically how the detangling continues. Three same-sex couples had sued the Arkansas Department of Health, trying to force state government to list same-sex couples on birth certificates the same way it does opposite-sex couples. One of the women in each couple in the litigation had given birth as a result of artificial insemination. A birth certificate as required by law was issued for each new arrival. The litigation arises from the fact the non-birthing spouse was forced to go through additional legal steps -- steps a husband wouldn't have to take -- to be listed as a parent on the birth certificate.
As much as the plaintiffs in the case would like the Obergefell case to be the final word, it's not going to be so simple. Their case blends the issues of parental rights with those of marital rights. The majority of the Arkansas Supreme Court ruled the Obergefell case did not answer the questions about birth certificates. State law, they said, "centers ... not on the marital relationship."
"In our analysis of the statutes ...," the court said, "it is the nexus of the biological mother and the biological father of the child that is to be truthfully recorded on the child's birth certificate."
The court quoted testimony from the vital records state registrar at the Arkansas Department of Health: "Identification of biological parents through birth records is critical to the ADH's identification of public health trends, and it can be critical to an individual's identification of personal health issues and genetic conditions. Even in the case of surrogacy where the biological mother is never intended to be the legal parent of a child, the statutes provide that an initial birth certificate is issued reflecting the biological mother as a parent, and then an amended birth certificate is issued reflecting the intended parents as legal parents. The original birth certificate is sealed, but maintained by ADH. This is important because a child may need to access information about biological parentage for health-related reasons. The state has a legitimate interest in maintaining such information (even if under seal and releasable only pursuant to a court order) in order to protect the future health of the child."
The same-sex couples, it appears to me, suggest the birth certificate is a document tied up in their right to marry. But whose birth certificate is it? It's documenting the birth of the child. The state's argument, and now the court's, suggests birth certificates are about biological relationships, not who is filling the role of a second parent.
So does that mean half of a same-sex couple should never be listed on a birth certificate? Perhaps not.
State government -- the Legislature -- has to work out the mechanics of this new world we're in. A birth certificate fundamentally should be a documentation of biological connections. State laws written back in the day of "husband" and "wife" presumed it, giving favor to a man who demonstrated paternity even if another man was filling the role of spouse to the mother.
That biological information ought to remain paramount. The court, using what once seemed like commons sense, said it "does not violate equal protection to acknowledge basic biological truths."
But the person to whom the birthing mother is wed shouldn't be ignored. Certificates ought to be revamped to recognize the reality that birthing moms, more now than ever, will be legally married to someone who didn't have biological involvement in the child's creation. Government documents shouldn't pretend a biological father and a nonbiological spouse contribute in the same way to a child's creation, but there is a difference between conceiving a child and being a parent to one.
Men and women have been proving that for eons.
Commentary on 12/12/2016