Supreme Court Reaffirms Obergefell, Orders Gay Couples Be Treated Equally On Birth Certificates

On the second anniversary of its decision in Obergefell, the Supreme Court struck another blow in favor of LGBT rights.


In addition to all its other activity this week, the Supreme Court issued a short opinion this week that reaffirms it’s decision in Obergefell v. Hodges that struck down bans on same-sex marriage nationwide and ruled that an Arkansas law that treated lesbian and gay parents differently from opposite-sex parents:

WASHINGTON — The Supreme Court on Monday reaffirmed its 2015 decision recognizing a constitutional right to same-sex marriage, ruling that states may not treat married same-sex couples differently from others in issuing birth certificates.

The decision was unsigned. Justice Neil M. Gorsuch, joined by Justices Clarence Thomas and Samuel A. Alito Jr., dissented.

The case concerns an Arkansas law about birth certificates that treats married opposite-sex couples differently from same-sex ones. A husband of a married woman is automatically listed as the father even if he is not the genetic parent. Same-sex spouses are not.

The case, Pavan v. Smith, No. 16-992, was brought by two married lesbian couples who had jointly planned their child’s conception by means of an anonymous sperm donor. State officials listed the biological mother on the children’s birth certificates and refused to list their partners, saying they were not entitled to a husband’s presumption of paternity.

The Arkansas Supreme Court ruled against the women, saying that “it does not violate equal protection to acknowledge basic biological truths.”

Obergefell v. Hodges, the 2015 United States Supreme Court case, listed birth certificates among the “governmental rights, benefits, and responsibilities” that typically accompany marriage.

The plaintiffs told the Supreme Court that Arkansas’ approach has serious consequences.

“A child’s birth certificate affects parental decision-making authority in the medical and educational context,” their lawyers wrote. “For example, some Arkansas public schools allow only those parents named on the child’s birth certificate to receive educational information absent a court order.”

The case at bar involves a lesbian couple who were legally married in the wake of the Supreme Court’s decision. Subsequently, one of the women became pregnant, apparently through sperm donation and artificial insemination. When the child was born, the couple sought to have both women listed as parents on the birth certificate, just as would happen in the case of an opposite-sex married couple regardless of any questions about the actual paternity of the child. The state denied this request because it claimed, relevant state law only allowed biological parents to be listed on a birth certificate, an argument that is largely undercut by the fact that Arkansas has never required that the husband of a woman who has given birth take a paternity test to prove that he is, in fact, the father of the child. Based on this, as well as on the arguments cited in the majority opinion in Obergefell, the Court ruled that the state’s refusal to allow gay parents to be listed as parents on a birth certificate amounted to the kind of irrational, unequal treatment that Obergefell sought to prohibit.

It should be noted that this decision is likely to have a somewhat limited impact notwithstanding the fact that is clearly the correct one given the holding in Obergefell. For example, it wouldn’t appear to apply in the case of two gay men who adopt a child in a situation where one of them is the natural parent but the child was born via a surrogate. Nor would it appear to apply to cases involving the adoption of a child born to other parents entirely. In those cases, the laws governing adoption would apply and they generally involve court proceedings and the issuance of a new birth certificate listing the adoptive parents as the child’s parents. While the issue of adoption by gay couples has been controversial, it is permitted in Arkansas thanks to a 2011 decision by the Arkansas Supreme Court that struck down a state law barring adoption by gays and lesbians.

There are two other things about this case that are notable. The first is that it happened to be handed down on the second anniversary of the Court’s decision in Obergefellalthough that is likely only a coincidence. The second is what one finds in the dissent written by Justice Gorsuch and joined by Justices Alito and Thomas. The first thing to take note of with regard to the dissent is the fact that Chief Justice Roberts did not join in the dissent notwithstanding the fact that he was part of the minority in Obergefell. While it’s not always wise to read anything into such things, this could be a sign that Roberts would be reluctant in the future to join an opinion that sought to overturn or limit the holding in Obergefell in any way. Given some of Roberts’ previous positions on other issues, and the fact that the positions he takes often seem to be concerned with the idea of protecting the legitimacy of the Court, this would be an entirely understandable position on his part. As things stand, the Court’s decision in Obergefell has been rather easily accepted by the public as a whole and has been acted in reliance on by thousands of lesbian and gay couples who are now living as married couples thanks to the Court’s action. The idea that this right could be taken away in the future by a change of one or two Justices remains of concern to many people. Potentially, his position in this case indicates that Roberts would be reluctant to do that and that he would defend Obergefell on the basis of stare decisis at the very least. Gorsuch’s dissent is also notable because it essentially accepts the Court’s holding in Obergefell rather than trying to argue the issue all over again. Is that an indication that even the dissenters in Obergefell have given up the battle against marriage equality? We’d only know for sure in the event a case that directly challenged that case’s holding came before the Court, but this dissent suggests that the conservatives would not be eager for another fight over that issue. For everyone’s sake, let’s hope that’s the case.

Here’s the opinion in the Arkansas case:

Pavan Et Al v. Smith Et Al by Doug Mataconis on Scribd

FILED UNDER: LGBTQ Issues, Uncategorized, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. KM says:

    While I am usually pro-LGBT, on this one I’m not sure why it was an issue. A birth certificate is a genealogical record in that it reflects the biological stats of a child: things like name, birth place, sex and familial descent. It is not and should never be a record of the relationship status of any adult involved with the child; that’s what marriage certificates are for. I understand you are the parents but that’s not what this paper is for. This paper is to establish the legal identity of the child.

    If those who want to raise the child need to have their relationship confirmed in document for various legal reasons, couldn’t an additional line be added? After all, we have plenty of families with remarriages and the like – sure if there was a need to record adult relationship status on the child’s paperwork, it can be reworked. If necessary go to bland terms like Donor 1 and Donor 2 with Donor 1’s spouse as a separate line item.

  2. Franklin says:

    According to an article over at Slate, Gorsuch’s dissent made little sense and had some basic factual errors. Not a strong start to his career.

    From the article

  3. Franklin says:


    A birth certificate is a genealogical record in that it reflects the biological stats of a child …

    This paper is to establish the legal identity of the child.

    You are saying two contradictory things here. Which way do you want it? I am fine with it either way, but it is currently used as the latter. And in that case, husbands are listed as the father even if it is known that they are not the biological father (at least in Arkansas). If that is the case, then it follows that any spouse should be listed.

  4. Joe says:


    I would add that the term “geneological” is ambiguous as well. You can record biographical information or you can record legal/social information. Different goals. Different outcomes.

  5. grumpy realist says:

    OT: Guy who will get the Darwin Award this year.

    (He might not be eligible because he didn’t pull the trigger himself, but this is so elegantly stupid I’m going to ask for an exemption.)

  6. michael reynolds says:

    My youngest has a birth certificate listing my wife and I as parents, though we are white and she is Chinese. It’s common practice to list non-biological parents.

  7. Hal_10000 says:


    I read that article and the response from several lawyers who says it’s nonsense and completely misrepresents Gorsuch’s argument. It’s notable that the only people he talked to are lawyers for the couple, not to any legal scholars or lawyers for the other side. What’ noteworthy is that Gorsuch didn’t dispute Obergefell even in his dissent. The days of Scalia tirades are over.

    Re: Roberts. Roberts’ dissent on Obergefell agreed that gay marriage should be legal; it disagreed with the Court’s reasoning that it was a constitutional right. Given that, it’s no surprise that Roberts sided with the majority.

  8. Franklin says:

    @Hal_10000: OK, I didn’t see the responses. There was one quote from the dissent that seemed to be missing a word or something, because it appeared to say the exact opposite of what Arkansas’ position was.

  9. Anonne says:

    The document can serve more than one purpose, and it historically has. I agree that an extra line is useful, considering the state of blended families.

  10. Matt says:

    @michael reynolds: Yes indeed my adoptive dad is listed on my birth certificate.

  11. de stijl says:

    Won’t anyone think about the Rod Dreher’s??!?!?

  12. KM says:

    Bleh, this is what happens when I try to reason on only one cup of coffee. My ultimate point was that as a document establishing legal identity it should have more information, not less. We should be adding to it instead of trying to change what defines a field, including anything that contains – for lack of a better term – blood lineage.

    Ideally, I would like it to have biological and legal parents + spouses listed. This gives the child the most information available to help them determine “who they are” including what’s in their bloodstream. One of the things I work with involves tracing patient history and you’d be absolutely amazed at how many individuals had no idea someone in their recent ancestry was adopted. Not all families inform their children so it can be a nasty shock to find out from your doctor, not your parents. They will go on and on about how Grandma X has no history of breast cancer or dementia, only to discover that doesn’t apply since they do not posses that DNA. We are progressing to a future where DNA testing renders this kind of patient history somewhat moot but until then, it is in the best interest of the child to have this information available if possible.

  13. rachel says:

    @grumpy realist: No Darwin Award; he’d already reproduced.

  14. iSeeDumbPeople says:

    @rachel: “No Darwin Award; he’d already reproduced.”

    Actually not a factor. Still eligible.

  15. Scott says:

    Texas Supreme Court basically said that legally married same sex couples can be denied spousal benefits.

    Seems to be contradictory to Pavan.

    Legal opinions?