LITTLE ROCK — An Arkansas judge erred when he “rewrote” part of the state’s birth certificate law in response to the U.S. Supreme Court’s ruling that made same-sex marriage legal nationwide, an attorney for the state argued Thursday before the state Supreme Court.
An attorney for three lesbian couples who challenged the law urged the justices to uphold Pulaski County Circuit Judge Tim Fox’s Dec. 1 ruling that the U.S. Supreme Court’s decision on gay marriage entitles same-sex couples to have both spouses’ names listed on their children’s birth certificates without a court order.
The state’s top court heard oral arguments but did not immediately issue a ruling in the state’s appeal of Fox’s ruling. The court has stayed the ruling except as it applies to the named plaintiffs, who have received the amended birth certificates they sought. The state is not challenging those three certificates.
State Solicitor General Lee Rudofsky argued Thursday that Fox exceeded his authority by broadly rewriting state law.
“What he should have done is chosen the shortest, most surgical remedy he could — sort of using a scalpel instead of what he did, of using an ax,” Rudofsky said.
Rudofsky said a better remedy would be to change the word “husband” to “spouse” in the state’s artificial insemination law, or to rule that “husband” is to be interpreted to mean “spouse.” Currently, the law does allow for the possibility of both parents being female, he said.
Rudofsky acknowledged that this would not provide any remedy for a same-sex couple who marry after a child is born, as did one of the couples who filed the suit, but he said a heterosexual couple who marry after a child’s birth also need a court order to have a birth certificate amended to include the name of the new parent.
Cheryl Maples, attorney for the plaintiffs, argued that Rudofsky’s suggestion would not be a proper remedy.
“The assisted reproduction statute has nothing to do with birth certificates,” she said. “It is under the section in family law that is in regard to paternity and is setting out the conditions of paternity, but it does not set out any procedures or qualifications for a birth certificate.”
Chief Justice Howard Brill asked Maples if it would be more appropriate for a fix to come from the Legislature.
“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?” he asked.
Maples responded that if changing the state’s laws to comply with the U.S. Supreme Court’s ruling on gay marriage were left up to the Legislature, “we may never see those changes.”
Rudofsky said reversing Fox’s ruling and leaving it up to the Legislature to fix the law is an option for the court.
Justice Rhonda Wood said, “I feel it’s a little disingenuous to say ‘Wait on the Legislature,’ because the Legislature’s had special sessions since this case came down, and it hasn’t been a priority.”
Rudofsky responded, “If you look at how many statutes this affects and how many statutes discuss husbands and fathers, this is not really a topic for a one-week or two-week special session. We’re really talking about a deep dive into a large portion of the code.”
Wood asked, “But didn’t (the gay marriage decision) speak to that and say that these folks don’t have to wait on that process, they are guaranteed these rights?”
Rudofsky said he did not interpret the ruling to hold that a non-biological parent has a right to be listed on a birth certificate.
The court did not say when it would rule.