Arkansas gets schooled on SSM

[RitterSport]

@Tom_Tildrum

The posture of the case is odd, but Gorsuch’s dissent becomes clearer upon reading the state’s brief. His opinion says nothing about his view of Obergefell or same-sex marriage.

Arkansas maintains two birth-certificate statutes: one for “unassisted” conception (not involving assisted reproduction) and one for conception from assisted reproduction. The plaintiffs here, who obviously used assisted reproduction, nonetheless sued to overturn certain aspects of the unassisted-repro statute on a broader theory that taking biological relationships into account on a birth certificate is generally impermissible.

The assisted-reproduction statute, as written, applies only to opposite-sex couples. The state AG expressly conceded that that statute is now unconstitutional under Obergefell and asked the court to overturn it. The court refused, because the plaintiffs had not challenged that law.

The unassisted-repro statute contains presumptions that only apply to opposite-sex couples. The state’s position is that that is permissible, because unassisted reproduction, by definition, always only involves opposite-sex couples.

The lower court issued two orders. In one, it ordered the state to issue birth certificates showing the plaintiff couples as parents. The state did so, and did not challenge that order. In the other, it invalidated the presumptions in the unassisted-repro statute, and that’s what the state appealed. The Ark. Supreme Court held that Obergefell did not require that result, and it reversed the invalidation of those provisions.

The US Supreme Court granted summary reversal of that order, without calling for full briefing or oral argument, and that is what Gorsuch opposed. As he points out, the Court’s ruling does not resolve any of the confusion engendered by this case. it is not clear how the state is to issue birth certificates in cases of unassisted reproduction now (potentially an affidavit of paternity will be required from the mother in all cases). Moreover, it is not clear that the ruling helps other same-sex couples at all, since the assisted-reproduction statute remains unaddressed.

It’s untrue that a same-sex couple can’t have an unassisted birth, at least in the case of two women. One could certainly find a willing partner to try and get pregnant with, and, once that is accomplished, the male partner may not want anything to do with the child. I think, but I’m not researching it right now, that the statute states that, in the case where a child is conceived through an affair, the husband is still considered, by default, the father, unless paternity tests, etc., happens. So, this would be just as if one wife had an affair and got pregnant. The other spouse should be considered the parent, just like it would be for an opposite sex couple.

[kaylasdad99]

@RitterSport

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?

The only thing that springs to mind for me is the presence of the word “husband” in the statute. It’s my understanding that in a F-F SSM, each person refers to her spouse as “wife” (conversely, two men will each refer to their spouse as “husband”).*

Of course, replacing the word “husband” with “spouse” in the statute solves the problem nicely. Had the Arkansas Supremes insisted that such replacement must be accomplished legislatively, there might have been a little more argument (still with the same outcome, though).

*This may not be universal, which would tend to undermine the basis of even this shaky rationalization.

[Tom_Tildrum]

@RitterSport

It’s untrue that a same-sex couple can’t have an unassisted birth, at least in the case of two women. One could certainly find a willing partner to try and get pregnant with, and, once that is accomplished, the male partner may not want anything to do with the child. I think, but I’m not researching it right now, that the statute states that, in the case where a child is conceived through an affair, the husband is still considered, by default, the father, unless paternity tests, etc., happens. So, this would be just as if one wife had an affair and got pregnant. The other spouse should be considered the parent, just like it would be for an opposite sex couple.

A third person is assistance by definition.

The default is different because the concerns are different. When it’s an opposite-sex couple, the husband is presumed the parent because there is no way of establishing that the wife had sex with someone outside the marriage, absent paternity testing. Having no presumption would raise the risk of irresponsible husbands falsely denying paternity and avoiding testing.

When it’s a lesbian couple having a baby, the gestational mother unquestionably got spermed in one way or another by someone outside the marriage, and the relevant question is whether she did so for purposes of assisted reproduction with her spouse or because she was having a bisexual extramarital affair. A presumption that the non-gestational spouse is the other parent increases the risk that the non-gestational spouse will be compelled into parenthood that she did not intend or consent to (and again excusing an irresponsible man).

[RitterSport]

@Tom_Tildrum

A third person is assistance by definition.

The default is different because the concerns are different. When it’s an opposite-sex couple, the husband is presumed the parent because there is no way of establishing that the wife had sex with someone outside the marriage, absent paternity testing. Having no presumption would raise the risk of irresponsible husbands falsely denying paternity and avoiding testing.

When it’s a lesbian couple having a baby, the gestational mother unquestionably got spermed in one way or another by someone outside the marriage, and the relevant question is whether she did so for purposes of assisted reproduction with her spouse or because she was having a bisexual extramarital affair. A presumption that the non-gestational spouse is the other parent increases the risk that the non-gestational spouse will be compelled into parenthood that she did not intend or consent to (and again excusing an irresponsible man).

That’s one way to look at it, but you could also look at it this way. When the wife of an opposite sex couple has an affair and she, her husband, and the biological father all know about it, the husband still ends up with his name on the birth certificate, barring extraordinary actions. That’s true even if the husband has no testicles or has had a vasectomy and couldn’t possibly be the father. However, when the wife of a same-sex couple has an affair and she, her wife, and the biological father all know about it, the state is saying that either the bio father or no one is listed on the birth certificate. That’s disparate treatment and disallowed under Obergefell.

When I had my kids, no one asked me whether I was fertile and no one checked under my pants for the presence of sperm makers, and yet here I am with my kids’ names on their BCs.

[RitterSport]

@RitterSport

…and yet here I am with my kids’ names on their BCs.

What other name would I expect on my kids’ BCs? Of course, I meant, “and yet here I am with my name on my kids’ BCs.”

Preview is my friend and I previewed the previous post twice and didn’t pick that up. Maybe preview is not my friend after all.

[Tom_Tildrum]

Speaking purely hypothetically for the sake of argument, suppose the paternity test shows that your wife conceived a child with another man. She says, however, that you privately asked her to do so and agreed that you would assume all parental responsibility if she got pregnant. How will you prove otherwise?

My point being that the regime you’re proposing makes it more difficult for an “innocent” spouse victimized by an affair to deny parenthood in a same-sex marriage, which is disparate treatment.

[RitterSport]

@Tom_Tildrum

Speaking purely hypothetically for the sake of argument, suppose the paternity test shows that your wife conceived a child with another man. She says, however, that you privately asked her to do so and agreed that you would assume all parental responsibility if she got pregnant. How will you prove otherwise?

My point being that the regime you’re proposing makes it more difficult for an “innocent” spouse victimized by an affair to deny parenthood in a same-sex marriage, which is disparate treatment.

I think this is currently the case for straight couples – a husband and wife are considered to be the father and mother by default, and only through extraordinary efforts (paternity test, for example) would both of their names not be on the BCs, even if both parents know, for some reason or other, that the husband is not the bio-father. Why should same-sex couples have to go through extraordinary efforts (adopting the child of their spouse) when opposite-sex couples do not?

[Bryan_Ekers]

Meh. Just put the spouse’s name on the birth certificate in pencil and if the spouse does not raise an objection within 60 days of the birth, write it over in ink.