The Arkansas Supreme Court
today granted Attorney General Leslie Rutledge's
request for a stay of the general impact of Judge Tim Fox'
s decision that allowed three same-sex couples to have names of both mothers on their children's birth certificates.
In the short run, it means an end to a three-day-old decision of the Health Department
to issue birth certificates with names of same-sex parents to all couples who were married before children were born.
The court didn't disturb the order that allowed the three couples to get amended birth certificates. But it granted an emergency stay of Fox's broader order holding part of a statute unconstitutional and also defining the law as saying the phrase "person has been legitimated" includes the minor child of any couple who married subsequent to birth of the child and presented proof of the date of birth and marriage. If the original birth certificate to be amended included a biological parent, a court order would be required to remove that person's name, Fox said. A court order also would be needed if one of the spouses was married to another person at the time of birth.
The Supreme Court said
the interests of the plaintiffs wouldn't be harmed by a stay since their ability to amend birth certificates was protected. But it said the issue was "complex," because Fox struck some parts of the law and amended others. Substantial confusion could arise if, on the appeal, the Supreme Court alters Fox's ruling. "The best course of action" is to stay the broader ruling for the appeal, the court said, in a brief order. The opinion also commented:
We note that the circuit court's order and memorandum opinion contain inappropriate remarks. We do not address those remarks at this time. Instead, we will address them following our receipt of the entire record of the appeal.
Here's what Fox had written.
UPDATE: John Lynch of the Arkansas Democrat-Gazette spies the offending words, I believe, in which Fox makes a reference to the Supreme Court's unseemly delay of a decision in the related Piazza decision on same-sex marriage in saying he could find no justification for delaying citizens' constitutional rights. Noted: As I've reported, Justice Karen Baker
was a pivotal player in the behind-the-scenes machinations that led to the extraordinary delay of the nominally "expedited" marriage case. Fox and Baker have a history. She defeated him for the Supreme Court seat in a particularly ugly race in which a Baker supporter and former clerk made a filing in a divorce case that raised allegations of an extramarital affair by Fox.
Justice Rhonda Wood
concurred in the stay. Justice Paul Danielson
Wood said it seemed clear that the part of the statute ruled unconstitutional — which prohibited same-sex couples from being on birth certificates of children born after their marriage — would fall. The state concedes children born subsequent to a union should be issued birth certificates. But this ruling means others similarly situated will not receive the same relief as plaintiffs. Indeed, this forces a reversal of the state Health Department's decision to begin issuing such birth certificates to all in that category. "...the public interest weighs in favor of recognizing children born of a lawful union so these children receive certain benefits," Wood wrote. But she would have joined the others on the stay for the rest of Fox's changes.
Danielson said simply that the state had failed to demonstrate that a stay was warranted.