Arkansas Supreme Court justices questioned Thursday whether it's up to them or the Legislature to change the state's birth certificate law after gay marriage was legalized nationwide, as they weighed a lawsuit brought by three same-sex couples who wanted both spouses listed as parents.
State Solicitor General Lee Rudofsky told justices that a Pulaski County judge went too far last year by striking down part of the state's birth certificate law as unconstitutional, and said a narrower change to the state's artificial insemination law would address most of the concerns. Judge Tim Fox's ruling last year struck down portions of the birth certificate law that limit references to spouses as husband or wife.
Fox's ruling, Rudofsky said, "upends centuries of family law and flies in the face of clear legislative intent."
Justices in December agreed to temporarily halt Fox's ruling regarding the birth certificate law while they considered the appeal. The court did not halt a separate order from Fox allowing the three same-sex couples who brought the lawsuit to amend their children's birth certificates. Rudofsky said changing the state law regarding artificial insemination would allow both same-sex spouses to be listed as parents if they were married at the time of the child's birth. Under that change, same-sex couples who weren't married at the time of the child's birth would still need a court order to both be listed.
Interim Chief Justice Howard Brill asked Cheryl Maples, the attorney for the couples, whether it was the court's role to rewrite the birth certificate law.
"Shouldn't we direct the Legislature to revise the statutes to comply with the Constitution in a gender-neutral way instead of a trial judge or this court trying to rewrite major statutes with all the implications that are involved?" Brill asked. "Isn't this a question for the Legislature to correct constitutional flaws in this?"
"If we wait for the Legislature to take necessary steps to comply with the Obergefell decision, we may never see those changes," Maples said, referring to the U.S. Supreme Court decision last year that legalized gay marriage.
Justice Rhonda Wood questioned the suggestion that lawmakers should have the first crack at making a change, noting that the Legislature hasn't taken up the issue since gay marriage was legalized last year.
"I feel it's a little disingenuous to say wait on the Legislature because the Legislature has had special sessions since the case came down and it hasn't been a priority," Wood said. Lawmakers have convened for three special sessions and an abbreviated session on the budget since that ruling.
Rudofsky said a broader change to the state's birth certificate law would require more time than a special session would allow.
"We're really talking about a deep dive into a large portion of the code," Rudofsky said.
The court didn't indicate when it might rule.
The hearing marked the first major case surrounding gay marriage for the court since an unusually public split among justices last year over its handling of a lawsuit over Arkansas' same-sex marriage ban. The court dismissed the gay marriage lawsuit hours after the U.S. Supreme Court legalized same-sex marriage nationwide.
Metro on 11/04/2016