I almost missed this gem today. In a 6-3 per curiam opinion, the Supreme Court summarily (without oral argument) overturned a decision of the Arkansas Supreme Court, which had upheld an Arkansas statute applied to preclude the listing of a female same-sex spouse of a child’s mother on the child’s birth certificate. In reaching its decision, the Court noted that, since Arkansas REQUIRED the placing of a husband’s name as father (unless the biological father, the biological mother, and the husband all agreed to list the biological father), and since Arkansas placed the husband’s name as father in the case of anonymous artificial insemination, Arkansas could not validly assert that the refusal to list a same-sex spouse was because the certificate was designed to establish biological relationship, rather than relationship by marriage. Since the only difference between the couples in question in the case and couples where there was an inter-sex marriage and an anonymous sperm donor was the fact that the petitioners were in a same-sex marriage, the specific language of Obergefell v. Hodges applied. See: Pavan v. Smith, 582 US ____ (2017)
Note the dissent by Justice Gorsuch. Clearly, he’s not a fan of Obergefell.
Before following the link, seeing the decision was 6-3, I would have put serious money on Thomas and Alito being the ones joining Gorsuch on the dissent. Sure enough, that’s just who it was. Lunatics have to stick together, I guess. There’s no other possible logical explanation for dissenting, given the facts of the case.
Gorsuch: the new, improved Scalia – even more deranged!
Can you explain his reasoning in the dissent? It seems to obviously wrong to me, since this case did concern a sperm donor and the parents can name the husband as the other parent, so why doesn’t that work here? Was it just that he thought a dismissal was simply premature and would rather have heard arguments?
I assume he’s a smart guy that I would just disagree with, and I’m not a lawyer, but his dissent seemed rambling and just wrong to me.
It seems that Gorsuch didn’t believe that the case was so clear cut as to warrant summary judgment and reversal. He took objection to the line of reasoning that held the Arkansas State Supreme Court made an error, and the fact that the summary judgment didn’t provide guidance for remedy.
It’s not form over substance at all. It’s a clear message to the rest of the Court that he thinks that, at best, the limits of Obergefell should be the determination that same-gender couples must be allowed to marry. Any extension of that principle to added rights of such married couples he is opposed to (hence the reason he thinks it’s not a slam-dunk in which the opinion of Obergefell is on all fours with).
So, he thinks that they can call themselves married but not get the rights and obligations of marriage? That seems like a very odd legal viewpoint (and two others agree with him). I guess it’s more likely that he thinks Obergefell was wrongly decided and this is the way he expresses that.
It’s odd indeed. It comes across as a weak rationalization of a predetermined desired outcome: Obergefell is now an unavoidable fact of life but there are still ways we can do the Lord’s good work and keep the gays at bay. The most telling aspect of this ruling is that Roberts dissented on Obergefell, but had the integrity to side with the majority’s legal and logical consistency on this one. Gorsuch proved himself cut from the same cloth as Alito and Thomas.
I wouldn’t interpret it that far. The law in question mandated who was listed on the birth certificate ostensibly for biological tracking. In Gorsuch’s view this wouldn’t be inconsistent with Obergfell on its face sufficient to justify summary judgment. So far Snowboarder and wolfpup have both drawn extended conclusions about the motivations of Gorsuch without making reference to what he actually wrote.
In looking at the fact pattern, it seems that precluding listing the same sex spouse on the birth certificate is a reasonable extension of Obergfell, but not that it is obviously part of the holding that its conclusion is a given. That the law contemplates the non-biological opposite sex husband to be put on the birth certificate but not the same sex non-biological wife is what dooms the law. There is also the fact that the law itself wasn’t challenged, so summary judgment ruling against an unchallenged law can be seen as an overreach.
AIUI Arkansas requires that the husband’s name and NOT the biological father’s name go on the birth certificate (assuming they are not the same person). As such Arkansas was not trying to preserve a biological link in the birth certificate.
This is why I found Gorsuch’s dissent to be confusing, because he seemed to come to the same conclusion (that husbands are listed when there’s a sperm donor) and yet thought the case might still have some merit. If you agree that the spouse is listed when there’s a sperm donor, then, once you over Obergefell, it seems obvious to me that the sex of the spouse doesn’t matter.
Interesting - I just read the per curium opinion. Previously I had only read the dissent. That fact is noted in the opinion:
I agree with the per curium opinion. I think my original observation remains true, Gorsuch was making a form over substance argument. The substance of who’s name is placed on the birth certificate seems clear when acting consistent with Obergfell. However, if as Gorsuch described, that the naming scheme was only a biological recording instrument, then it would seem there was an open question. But here is the key point I think Gorsuch makes:
Granted, I did not read the trial court opinion. It seems that Gorsuch is saying that if the petitioner sought to undo the birth registration based on biology, that isn’t required by Obergfell. The biological registration scheme could be perfectly fine with exceptions to known non-biological spouses, to ignore spouses all together, or some method. The fact that there is more than just biological tracking at play wasn’t the question asked and therefore summary reversal was a bridge too far. Gorsuch could have been saying that had the case gotten to the arguments and then decided upon, given the fact pattern he would rule with the majority, but wanted to preserve the proper procedural path to get there. That would be consistent with his dissent.
I read his comments. I also read the majority opinion. What Gorsuch actually wrote strikes me as just what I described it as – a thin rationalization that is at odds with the logical conclusions from the plain facts, succinctly summarized in the OP – in short, it strikes me as what Scalia once referred to in a dissent as “jiggery-pokery”. Now, I suppose one could argue that his rationalization has a sound basis in law. I am not a lawyer or a legal analyst, so here I must defer to others. And I defer as follows.
First, to the six justices who wrote the majority opinion and disagreed with Gorsuch, with particular deference to Justice Roberts, who dissented on Obergfell but was compelled to side with the majority on this one.
Then to a number of respected legal analysts with whom I have prior familiarity: Ian Millhiser who I already cited, the author of a respected book on the Supreme Court, Harvard law professor Laurence Tribe and CNN and New Yorker legal analyst Jeffrey Toobin who were quoted thus:
… Gorsuch dissented from the Supreme Court’s opinion to strike down Arkansas’ birth certificate law as unconstitutional because it contravened the high court’s 2015 ruling legalizing same-sex marriage. Gorsuch dissented sharply, saying he thought the Supreme Court’s summary reversal of the Arkansas Supreme Court decision was not warranted. Harvard law professor Laurence Tribe viewed Gorsuch’s dissent as reason to sound an alarm about the newest justice’s jurisprudence. “That Justice Gorsuch would dissent from this modest holding should wake up all who hoped he would display a modicum of constitutional wisdom,” Tribe tweeted about Gorsuch’s dissent.
… “Neil Gorsuch is Clarence Thomas’s Mini-Me,” said Jeffrey Toobin, a progressive legal analyst, on Twitter.
Against this, Gorsuch stands with the support of the homophobe community and with two of the most extreme-right and divisive Supreme Court justices in at least living memory.
To Bone - But that would seem to imply that every law that specifies man/woman marriage would have to be challenged all the way to the Supreme Court. The majority seems to be saying that Obergefell changed the landscape, and anything that requires or implies opposite sex marriage now works for SSM.
You quote Toobin, but his only substantive comment quoted is “Gorsuch dissented sharply, saying he thought the Supreme Court’s summary reversal of the Arkansas Supreme Court decision was not warranted.” The key to assess whether Gorsuch’s position is supportable or not is the reason *why *he felt it wasn’t warranted. That isn’t conveyed at all by the author.
The only substantive comment from Millhiser was:
There is more here, in that he describes why Gorsuch thought the conclusion was overbroad. Given that there is a valid reason for biological tracking, if construed narrowly, the scheme could likely be preserved with exception as agreed upon by the state. As it stands, the law treats same sex parents differently and I think that does run afoul of Obgerfell. I think Gorsuch’s main objection was the question of summary reversal and whether this case merited it - it says nothing about how he would rule if the case were argued before the court. The substance of Gorsuch’s dissent is that summary reversal isn’t appropriate in this instance. That’s why I think it’s form over substance.
Not necessarily - existing law can be challenged and overturned at the lowest level and then it’s done. Only if appealed and it goes through the process would it make it to SCOTUS. Laws on the books that basically do not recognize same sex marriages would be easily overturned. But it is true that even after Obgerfell the offending laws would still be on the books - and they would need to be repealed, or litigated for their removal. It wouldn’t be automatic. A lack of enforcement would probably create standing hurdles that could be overcome with institutional plaintiffs as well, among other methods.
Every argument where you start analyzing the legal navigation to what may be a desired conclusion by the justices writing the decision can be applied to every split decision, especially the 5-4 ones, so it’s kind of an impasse. This one at least has the virtue of a larger 6-3 majority, with the known extremists that Gorsuch sided with being in the minority. The essence of my argument in view of this is that Gorsuch has sided with the two extremists of record, and make of that what you will.
But ultimately rulings should be simply on the basis of what is moral and just and consistent with a reasonable interpretation of the Constitution, with deference to precedent and refraining from unnecessary overreach. My view, and apparently that of expert analysts, is that the minority dissent utterly failed in this regard and let their ideology determine their position. Nowhere in the civilized democracies that I know of on this earth is a nation’s top court so ideologically divided. Moderates like Kennedy whose rulings aren’t ideologically as predictable as sunrise are rare to the point of near non-existence. Merrick Garland may have been one, but heavens no, can’t have that – must oppose at all costs! And now there’s a Bible-thumping lunatic on the court instead, with maybe more to come. Good luck, America.
