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Arkansas Birth Certificate Battle for Same-Sex Couples

By Christopher Coble, Esq. on December 11, 2017 | Last updated on March 21, 2019

It's been over two years since the Supreme Court recognized the right of same-sex couples to marry, yet some state officials have been dragging their feet recognizing the inherent rights that follow the right to marry. Former Alabama Supreme Court Justice Roy Moore famously ordered state probate judges to cease issuing marriage certificates for same-sex couples. (Moore was suspended from the court and ultimately resigned.) Other states were slow to recognize child custody and visitation rights of same-sex parents.

In Arkansas, birth certificates have become an issue for children of same-sex couples. Here's a look at what this issue is all about.

Statutory Squabble

Arkansas's old birth certificate statute presumptively placed the husband of the woman giving birth on the birth certificate, regardless of whether the husband was actually the biological father. However, if the birth mother was married to a female spouse, the state refused to list the spouse on the birth certificate unless the couple obtained a court order granting parental rights to or approving an adoption by the female spouse.

Despite the Supreme Court ruling in June, the state legislature took no action to rewrite the law, leaving a discriminatory and unconstitutional law in place.

Frustrated with the lack of movement on the issue, Pulaski County Circuit Judge Tim Fox (in charge of the above referenced lawsuit) ordered the State Health Department to cease issuing any birth certificates until the lawmakers could fix the law. It took the governor less than two hours to issue his own directive, ordering the Health Department to list the spouse of the woman who gives birth as a parent, regardless of gender. The Health Department must also issue two corrected birth certificates that list both spouses, if they would have been entitled to be named on the first certificate.

The governor's order seems to have solved the issue, for now. But certain Arkansas lawmakers have promised to continue fighting to keep same-sex spouses off birth certificates.

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