LITTLE ROCK — Arkansas cannot refuse to list both spouses on the birth certificates of the children of same-sex couples, a divided U.S. Supreme Court ruled Monday.


The ruling


In an unsigned order, the court sided with two lesbian couples who sued for the right to have, without filing for a court order, both spouses’ names listed on the birth certificates of their children who were conceived through anonymous sperm donation.


Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented.


Pulaski County Circuit Judge Tim Fox ruled in the couples’ favor in December 2015, but a year later, the Arkansas Supreme Court reversed his ruling. Fox said the U.S. Supreme Court’s June 2015 decision that made gay marriage legal nationwide extended to same-sex couples all the marriage rights that apply to opposite-sex couples, but the state Supreme Court said birth certificates were not mentioned in that decision.


The U.S. Supreme Court said Monday that Arkansas’ birth-certificate law conflicts with the 2015 decision on gay marriage, which states that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.”


Arkansas’ law unconstitutionally treats same-sex couples differently from opposite-sex couples, the U.S. Supreme Court said.


“When a married woman in Arkansas conceives a child by means of artificial insemination, the state will — indeed, must — list the name of her male spouse on the child’s birth certificate,” the court said in the order. “And yet state law, as interpreted by the court below, allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate.”


The high court sent the case back to the state Supreme Court “for further proceedings not inconsistent with this opinion.”


Gorsuch wrote for the court’s minority that the 2015 decision on gay marriage did not establish that a state cannot have a birth registration system based on biology. He noted that the state argued there are rational reasons to have a biology-based system, “like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship or susceptibility to genetic disorders.”


Gorsuch acknowledged that Arkansas does treat same-sex couples differently than opposite-sex couples when it comes to artificial insemination, but he said that if the problem was with the artificial-insemination law, there was no need to reverse the Arkansas Supreme Court on the birth-certificate law.


He also said the majority sent the case back to the Arkansas Supreme Court without saying what it expected to happen.


“The Court does not offer any remedial suggestion, and none leaps to mind,” Gorsuch wrote.


Reactions


Gov. Asa Hutchinson told reporters Monday, “What the state of Arkansas was looking for was some guidance as to how to proceed on this issue, and I think they gave us some guidance, although as the dissent pointed out, they didn’t really point us in the right direction as to the solution.”


Hutchinson said he will talk with state Department of Health officials “to see what ideas they have in light of that decision.”


Attorney General Leslie Rutledge said in a statement Monday, “I disagree with the majority’s flawed reasoning and strongly agree with the conclusions of Justices Gorsuch, Thomas and Alito in their well-reasoned dissent. Nonetheless, the Supreme Court has spoken, and I will continue to review today’s decision to determine the appropriate next steps upon remand to the Arkansas Supreme Court to ensure that the law is followed properly.”


Cheryl Maples, an Arkansas attorney who represented the same-sex couples, said in an interview it was “absolutely fantastic” that the U.S. Supreme Court decided in the couples’ favor and did so more quickly than expected, without briefing or arguments, which she said showed the high court believed the Arkansas Supreme Court’s decision “was completely wrong.”


Maples said that when a same-sex couple in Arkansas has a child by artificial insemination, usually the spouses go through all the planning and preparation together.


“Then when the child is born, only one of those two parents has been able to assert medical care for the child or getting the child enrolled in school. There’s many, many rights that go along with being named the legal parent, and without that the other parent is deprived and the child is deprived of the safety of having two parents and the legal protection of two parents,” she said.


As an example, Maples said the child of one of the couples involved in the lawsuit was born prematurely, and only the biological parent was able to approve medical care for the child.


“Had something happened to the biological parent, that baby would have been born without a parent,” Maples said.


Rita Sklar, executive director of the American Civil Liberties Union of Arkansas, said in a statement, “Coming two years to the day after the U.S. Supreme Court made marriage equality the law of the land, this ruling is another victory for equal protection and the rights of children and LGBT parents,” she said in a statement.


Jerry Cox, executive director of the Christian conservative Family Council, said in a statement, “Birth certificates exist to record that a child was born and who the child’s biological parents are presumed to be. As the Arkansas Supreme Court correctly noted last year, no child can have two biological mothers, but the Arkansas Department of Health will now be forced to operate as if that is possible because of this court ruling.”


Waiting for guidance


Arkansas Department of Health spokeswoman Meg Mirivel said Monday the department will wait for guidance from the Arkansas Supreme Court before making any changes.


“If couples come by today we’ll take their information, and once we receive that guidance then we’ll expedite those orders,” she said.