Saying all marriages are created equal, the Arizona Supreme Court ruled Tuesday that the spouse of a gay woman who has given birth is entitled to the same parental rights as if she had been a man.
Chief Justice Scott Bales, writing for the majority, acknowledged that Arizona laws dealing with presumption of paternity use terms like “father,” “he” and “man.” Those laws say the husband in a marriage is presumed to be the parent of any child born within 10 months of a marriage.
He also conceded that Suzan McLaughlin could not possibly be biologically related to the child born in 2010 to Kimberly McLaughlin, to whom she was legally married at the time.
But Bales said all that is irrelevant in the wake of the historic 2015 U.S. Supreme Court ruling declaring that states have no right to limit marriage to one man and one woman. More to the point, he said, the nation’s high court concluded that same-sex couples are entitled to civil marriage “on the same terms and conditions as opposite-sex couples.”
Today’s ruling is a broad victory in the rights of gays — and not just involving questions of divorce and child custody. It also undermines arguments by some foes of same-sex marriage that the 2015 ruling permits only the marriage of same-sex couples.
Cathi Herrod, president of the Center for Arizona Policy has contended that ruling does not disturb other Arizona laws like those giving preference in adoption to a heterosexual married couple.
And Maricopa County Attorney Bill Montgomery refused in 2015 to provide legal help to married gay couples despite a state law which mandated that county attorneys provide free legal aid to couples seeking to adopt. His press aide argued at the time that a court ruling voiding Arizona’s gay-marriage law — which occurred even before the U.S. Supreme Court ruling — applies to marriage, not adoption.
But Bales said he and his colleagues believe what the U.S. Supreme Court decided “will require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.” He said that includes everything from taxation, property rights and hospital access to campaign finance rules — and adoption rights.
“It would be inconsistent with (the 2015 ruling) to conclude that same-sex couples can legally marry but states can deny them the same benefits of marriage afforded opposite-sex couples,” he wrote.
Bales said that could occur on a piecemeal basis, as those denied those rights file suit. But he said the better alternatives would be for the governor and Arizona lawmakers to comb through the rules and laws and eliminate those that discriminate.
“Like the judiciary, the legislative and executive branches are obliged to follow the United States Constitution,” he said. “Through legislative enactments and rulemaking, our coordinate branches of government can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires — namely, the same benefits afforded couples in opposite-sex marriages.”
Kimberly and Suzan were legally married in 2008 in California.
Court records show the couple agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly became pregnant in 2010.
Before the child was born, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician.
When the boy was nearly two, Kimberly moved out, taking the boy with her and cutting off his contact with Suzan.
Suzan filed for divorce in 2013 as well as legal papers for parenting time. When a trial judge agreed to have the case proceed, Kimberly appealed, pointing out the Arizona law about presumptions of paternity specifically apply only to husbands in opposite-sex marriage.
Bales said applying the law in that fashion in the wake of the U.S. Supreme Court decision violates the Equal Protection Amendment of the U.S. Constitution.
“Describing marriage as ‘a keystone of our social order,’ the court noted that states have ‘made marriage the basis for an expanding list of governmental rights, benefits and responsibilities,’ such as ‘child custody, support, and visitation rules,’ ” Bales wrote, quoting from the 2015 ruling.
“Denying same-sex couples the same legal treatment in marriage and all the benefits afforded opposite-sex couples works a grave and continuing harm on gays and lesbians in various ways — demeaning them, humiliating and stigmatizing their children and family units, and teaching society that they are inferior in important respects,” the Arizona chief justice said.
Herrod, whose organization pushed through Arizona’s now-overturned 2008 voter-approved ban on same-sex marriage, acknowledged Tuesday that the U.S. Supreme Court earlier this year extended the scope of the original 2015 ruling to say that same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.” That, she said, preordained Tuesday’s Arizona Supreme Court decision.
But Herrod said voters should not hold their breath waiting for lawmakers to undo any discriminatory laws.
“My assumption is a majority of the Arizona Legislature disagrees with the U.S. Supreme Court on this issue,” she said. Anyway, Herrod said, it’s not necessary for lawmakers to have to go on the record on politically sensitive issue of whether Arizona should repeal those laws.
“The court effectively just did that,” she said.
Montgomery, however, suggested laws on giving heterosexual couples preference in adopting children may be legally defensible given “the biological diversity necessary to create them in the first instance.” And he said all the discussion to this point has been on the rights of adults in the adoption process.
“I wonder if there may be future litigation on the rights of children,” he said.
Today’s ruling does not preclude a court from disturbing the presumption that the spouse of a woman who gives birth is the mother. That right already exists in situations where, for example, a husband says someone else is the biological father.
Bales noted, however, that the couple agree that they intended for Kimberly to be artificially inseminated with an anonymous sperm donor and they signed an agreement declaring Suzan a ‘co-parent’ of the child. And after the boy’s birth, Suzan stayed home to care for him during the first two years of his life.
What all that means, Bales said, is Kimberly cannot now try to rebut Suzan’s claim of presumptive parentage.
Writing separately, Justice Clint Bolick said he agrees that, given the facts of this case, Suzan is entitled to be seen as the boy’s legal parent in the pending divorce case. But he declined to go along with colleagues in concluding that the paternity statute as written is unconstitutional and said there is no basis to extending its reach to same-sex marriages.