A new ruling Monday by the U.S. Supreme Court could strengthen claims by gays that they’re entitled to more than just the right to marry.
In a 6-3 decision, the justices said their historic 2015 ruling stands for more than the fact that states may not limit the right to wed only to heterosexual couples. The majority in the unsigned opinion said that ruling also means that same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.”
The case out of Arkansas voids a state law there which says that when a gay married couple gives birth, only the name of the biological mother is listed on the state-issued birth certificate. The justices noted that other Arkansas laws spell out that in opposite-sex marriages, the name of the husband is always listed on the birth certificate, even if the child is the product of artificial insemination.
The new ruling could most immediately affect a case set for a hearing Tuesday at the Arizona Supreme Court in which the justices are considering the rights of the non-biological parent when a same-sex couple gets divorced.
Arizona laws, like those in Arkansas, generally require that the husband of the woman who has given birth be listed on the birth certificate. More to the point, that presumption of parenthood is key in questions of custody and visitation rights when the marriage breaks apart.
But two different divisions of the state Court of Appeals have issued two diametrically opposed and conflicting rulings as to whether the 2015 U.S. Supreme Court ruling extends those same presumptions in case of same-sex marriage.
Potentially more significant, the broad language in Monday’s ruling could give gay rights advocates the chance to argue that other laws which favor opposite-sex couples are similarly void. That includes one which says that in adoption, “placement preference shall be with a married man and woman.”
But Maricopa County Attorney Bill Montgomery, who has taken a narrower view of the 2015 ruling, said he does not see what the high court decided on Monday as going that far.
“Because single persons, as well as married couples, can adopt, adoption is not exclusively ‘linked’ to marriage,” he told Capitol Media Services.
That contention drew fire from Jenny Pizer, attorney for Lambda Legal Defense Fund.
She said it probably would be legal for the state to decide that married couples should be given first preference in adoption over single people.
“There would be, could be, nondiscriminatory reasons to say a household can be presumed to be more stable if there are two adults to raise children and they have a legal tie between them,” Pizer said. But she said any law giving a preference for a different-sex married couple over same-sex married couple would be constitutionally suspect.
“Well, what’s the state’s reason for that?” she said. And Pizer said gender stereotypes of men and women are “not a legitimate reason for distinction.”
Montgomery caused a stir in 2015 when he refused to have his staffers provide the same legal help to couples seeking to adopt to gay couples as his office had been doing for years, as legally required, for opposite-sex couples. He insisted that rulings voiding Arizona laws banning same-sex marriage did not give gays the same legal standing to adopt.
“The Supreme Court case addressed marriage,” he said at a news briefing. “It didn’t address adoption, so I didn’t read it to affect that at all.”
In a bid to help Montgomery, Arizona lawmakers approved legislation to rescind the mandate that county attorneys provide legal help to couples seeking to adopt. But that was vetoed by Gov. Doug Ducey who said he wants more children adopted – and does not particularly care if the parents are straight or gay.
“I want to see more kids in loving homes under the legal structure,” the governor said at the time. “And that’s just something I’m going to continue to be a legal advocate for.”
But rather than having his own staff provide the help, Montgomery decided to farm out the legal help to private attorneys for all adoptions.
Mia Garcia, spokeswoman for Attorney General Mark Brnovich, said the ruling is being reviewed.
Two years ago, after the first court rulings legalizing same-sex married, Brnovich had advised the Department of Child Safety that he did not read them to revise other laws, including one which says only “a husband and a wife may jointly adopt children.” But DCS, at Ducey’s instruction, ignored Brnovich’s advice.