Pavan v. Smith , 137 S. Ct. 2075 ( 2017 )

Cite as: 582 U. S. ____ (2017) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MARISA N. PAVAN, ET AL. v. NATHANIEL SMITH
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF ARKANSAS
No. 16–992. Decided June 26, 2017
PER CURIAM.
As this Court explained in Obergefell v. Hodges, 576
U. S. ___ (2015), the Constitution entitles same-sex cou-
ples to civil marriage “on the same terms and conditions
as opposite-sex couples.” Id., at ___ (slip op., at 23). In the
decision below, the Arkansas Supreme Court considered
the effect of that holding on the State’s rules governing the
issuance of birth certificates. When a married woman
gives birth in Arkansas, state law generally requires the
name of the mother’s male spouse to appear on the child’s
birth certificate—regardless of his biological relationship
to the child. According to the court below, however, Ar-
kansas need not extend that rule to similarly situated
same-sex couples: The State need not, in other words,
issue birth certificates including the female spouses of
women who give birth in the State. Because that differen-
tial treatment infringes Obergefell’s commitment to pro-
vide same-sex couples “the constellation of benefits that
the States have linked to marriage,” id., at ___ (slip op., at 17),
we reverse the state court’s judgment.
The petitioners here are two married same-sex couples
who conceived children through anonymous sperm dona-
tion. Leigh and Jana Jacobs were married in Iowa in
2010, and Terrah and Marisa Pavan were married in New
Hampshire in 2011. Leigh and Terrah each gave birth to
a child in Arkansas in 2015. When it came time to secure
birth certificates for the newborns, each couple filled out
paperwork listing both spouses as parents—Leigh and
Jana in one case, Terrah and Marisa in the other. Both
2 PAVAN v. SMITH
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times, however, the Arkansas Department of Health
issued certificates bearing only the birth mother’s name.
The department’s decision rested on a provision of Ar-
kansas law, Ark. Code §20–18–401 (2014), that specifies
which individuals will appear as parents on a child’s state-
issued birth certificate. “For the purposes of birth regis-
tration,” that statute says, “the mother is deemed to be the
woman who gives birth to the child.” §20–18–401(e). And
“[i]f the mother was married at the time of either concep-
tion or birth,” the statute instructs that “the name of [her]
husband shall be entered on the certificate as the father of
the child.” §20–18–401(f)(1). There are some limited
exceptions to the latter rule—for example, another man
may appear on the birth certificate if the “mother” and
“husband” and “putative father” all file affidavits vouching
for the putative father’s paternity. Ibid. But as all parties
agree, the requirement that a married woman’s husband
appear on her child’s birth certificate applies in cases
where the couple conceived by means of artificial insemi-
nation with the help of an anonymous sperm donor. See
Pet. for Cert. 4; Brief in Opposition 3–4; see also Ark.
Code §9–10–201(a) (2015) (“Any child born to a married
woman by means of artificial insemination shall be
deemed the legitimate natural child of the woman and the
woman’s husband if the husband consents in writing to
the artificial insemination”).
The Jacobses and Pavans brought this suit in Arkansas
state court against the director of the Arkansas Depart-
ment of Health—seeking, among other things, a declara-
tion that the State’s birth-certificate law violates the
Constitution. The trial court agreed, holding that the
relevant portions of §20–18–401 are inconsistent with
Obergefell because they “categorically prohibi[t] every
same-sex married couple . . . from enjoying the same
spousal benefits which are available to every opposite-sex
married couple.” App. to Pet. for Cert. 59a. But a divided
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Per Curiam
Arkansas Supreme Court reversed that judgment, con-
cluding that the statute “pass[es] constitutional muster.”
2016 Ark. 437, 505 S.W.3d 169, 177. In that court’s view,
“the statute centers on the relationship of the biological
mother and the biological father to the child, not on the
marital relationship of husband and wife,” and so it “does
not run afoul of Obergefell.” Id., at 178. Two justices
dissented from that view, maintaining that under Oberge-
fell “a same-sex married couple is entitled to a birth certif-
icate on the same basis as an opposite-sex married
couple.” 505 S.W.3d, at 184 (Brill, C. J., concurring in
part and dissenting in part); accord, id., at 190 (Danielson,
J., dissenting).
The Arkansas Supreme Court’s decision, we conclude,
denied married same-sex couples access to the “constella-
tion of benefits that the Stat[e] ha[s] linked to marriage.”
Obergefell, 576 U. S., at ___ (slip op., at 17). As already
explained, 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. See §20–18–401(f )(1); see also
§9–10–201; supra, at 2. 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. See 505 S.W.3d,
at 177–178. As a result, same-sex parents in Arkansas
lack the same right as opposite-sex parents to be listed on
a child’s birth certificate, a document often used for im-
portant transactions like making medical decisions for a
child or enrolling a child in school. See Pet. for Cert. 5–7
(listing situations in which a parent might be required to
present a child’s birth certificate).
Obergefell proscribes such disparate treatment. As we
explained there, a State may not “exclude same-sex
couples from civil marriage on the same terms and condi-
tions as opposite-sex couples.” 576 U. S., at ___ (slip op.,
4 PAVAN v. SMITH
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at 23). Indeed, in listing those terms and conditions—the
“rights, benefits, and responsibilities” to which same-sex
couples, no less than opposite-sex couples, must have
access—we expressly identified “birth and death certifi-
cates.” Id., at ___ (slip op., at 17). That was no accident:
Several of the plaintiffs in Obergefell challenged a State’s
refusal to recognize their same-sex spouses on their chil-
dren’s birth certificates. See DeBoer v. Snyder, 772 F.3d
388, 398–399 (CA6 2014). In considering those challenges,
we held the relevant state laws unconstitutional to the
extent they treated same-sex couples differently from
opposite-sex couples. See 576 U. S., at ___ (slip op., at 23).
That holding applies with equal force to §20–18–401.
Echoing the court below, the State defends its birth-
certificate law on the ground that being named on a child’s
birth certificate is not a benefit that attends marriage.
Instead, the State insists, a birth certificate is simply a
device for recording biological parentage—regardless of
whether the child’s parents are married. But Arkansas
law makes birth certificates about more than just genetics.
As already discussed, when an opposite-sex couple con-
ceives a child by way of anonymous sperm donation—just
as the petitioners did here—state law requires the place-
ment of the birth mother’s husband on the child’s birth
certificate. See supra, at 2. And that is so even though (as
the State concedes) the husband “is definitively not the
biological father” in those circumstances. Brief in Opposi-
tion 4.* Arkansas has thus chosen to make its birth certif-
——————
* As the petitioners point out, other factual scenarios (beyond those
present in this case) similarly show that the State’s birth certificates
are about more than genetic parentage. For example, when an Arkan-
sas child is adopted, the State places the child’s original birth certifi-
cate under seal and issues a new birth certificate—unidentifiable as an
amended version—listing the child’s (nonbiological) adoptive parents.
See Ark. Code §§20–18–406(a)(1), (b) (2014); Ark. Admin. Code
007.12.1–5.5(a) (Apr. 2016).
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Per Curiam
icates more than a mere marker of biological relationships:
The State uses those certificates to give married parents a
form of legal recognition that is not available to unmarried
parents. Having made that choice, Arkansas may not,
consistent with Obergefell, deny married same-sex couples
that recognition.
The petition for a writ of certiorari and the pending
motions for leave to file briefs as amici curiae are granted.
The judgment of the Arkansas Supreme Court is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
Cite as: 582 U. S. ____ (2017) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED
STATES
MARISA N. PAVAN, ET AL. v. NATHANIEL SMITH
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF ARKANSAS
No. 16–992. Decided June 26, 2017
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
Summary reversal is usually reserved for cases where
“the law is settled and stable, the facts are not in dispute,
and the decision below is clearly in error.” Schweiker v.
Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissent-
ing). Respectfully, I don’t believe this case meets that
standard.
To be sure, Obergefell addressed the question whether a
State must recognize same-sex marriages. But nothing in
Obergefell spoke (let alone clearly) to the question whether
§20–18–401 of the Arkansas Code, or a state supreme
court decision upholding it, must go. The statute in ques-
tion establishes a set of rules designed to ensure that the
biological parents of a child are listed on the child’s birth
certificate. Before the state supreme court, the State
argued that rational reasons exist for a biology based birth
registration regime, reasons that in no way offend Oberge-
fell—like ensuring government officials can identify public
health trends and helping individuals determine their
biological lineage, citizenship, or susceptibility to genetic
disorders. In an opinion that did not in any way seek to
defy but rather earnestly engage Obergefell, the state
supreme court agreed. And it is very hard to see what is
wrong with this conclusion for, just as the state court
recognized, nothing in Obergefell indicates that a birth
registration regime based on biology, one no doubt with
2 PAVAN v. SMITH
GORSUCH, J., dissenting
many analogues across the country and throughout his-
tory, offends the Constitution. To the contrary, to the
extent they speak to the question at all, this Court’s prec-
edents suggest just the opposite conclusion. See, e.g.,
Michael H. v. Gerald D., 491 U.S. 110, 124–125 (1989);
Tuan Anh Nguyen v. INS, 533 U.S. 53, 73 (2001). Neither
does anything in today’s opinion purport to identify any
constitutional problem with a biology based birth registra-
tion regime. So whatever else we might do with this case,
summary reversal would not exactly seem the obvious
course.
What, then, is at work here? If there isn’t a problem
with a biology based birth registration regime, perhaps
the concern lies in this particular regime’s exceptions. For
it turns out that Arkansas’s general rule of registration
based on biology does admit of certain more specific excep-
tions. Most importantly for our purposes, the State
acknowledges that §9–10–201 of the Arkansas Code con-
trols how birth certificates are completed in cases of artifi-
cial insemination like the one before us. The State
acknowledges, too, that this provision, written some time
ago, indicates that the mother’s husband generally shall
be treated as the father—and in this way seemingly antic-
ipates only opposite-sex marital unions.
But if the artificial insemination statute is the concern,
it’s still hard to see how summary reversal should follow
for at least a few reasons. First, petitioners didn’t actually
challenge §9–10–201 in their lawsuit. Instead, petitioners
sought and the trial court granted relief eliminating the
State’s authority under §20–18–401 to enforce a birth
registration regime generally based on biology. On appeal,
the state supreme court simply held that this overbroad
remedy wasn’t commanded by Obergefell or the Constitu-
tion. And, again, nothing in today’s opinion for the Court
identifies anything wrong, let alone clearly wrong, in that
conclusion. Second, though petitioners’ lawsuit didn’t
Cite as: 582 U. S. ____ (2017) 3
GORSUCH, J., dissenting
challenge §9–10–201, the State has repeatedly conceded
that the benefits afforded nonbiological parents under §9–
10–201 must be afforded equally to both same-sex and
opposite-sex couples. So that in this particular case and
all others of its kind, the State agrees, the female spouse
of the birth mother must be listed on birth certificates too.
Third, further proof still of the state of the law in Arkan-
sas today is the fact that, when it comes to adoption (a
situation not present in this case but another one in which
Arkansas departs from biology based registration), the
State tells us that adopting parents are eligible for
placement on birth certificates without respect to sexual
orientation.
Given all this, it seems far from clear what here war-
rants the strong medicine of summary reversal. Indeed, it
is not even clear what the Court expects to happen on
remand that hasn’t happened already. The Court does not
offer any remedial suggestion, and none leaps to mind.
Perhaps the state supreme court could memorialize the
State’s concession on §9–10–201, even though that law
wasn’t fairly challenged and such a chore is hardly the
usual reward for seeking faithfully to apply, not evade,
this Court’s mandates.
I respectfully dissent.