by Max Brantley
In 2015’s Obergefell v. Hodges, the Supreme Court ruled that states must provide marriage rights to same-sex couples “on the same terms and conditions as opposite-sex couples.” So it may be rather surprising that in 2017, some conservative states continue to insist that they can deny gay couples the rights and benefits granted to heterosexual couples—simply because same-sex spouses are of the same sex. One particular flashpoint is birth certificates, and the latest battle occurred in South Carolina, where the government claimed it need not list same-sex parents on their child’s birth certificate. Fortunately, on Wednesday, a federal judge shot down this bizarre assertion, ordering the state to list same-sex couples on birth certificates. But this battle is far from over, and its final resolution will likely have to come from the Supreme Court itself.I highlight "bizarre assertion" because this is precisely the assertion being made by Arkansas Attorney General Leslie Rutledge and upheld in an even more bizarre majority opinion written by Justice Jo Hart that claimed same-sex couples were being denied due process properly because the the aim of statute "is to truthfully record the nexus of the biological mother and the biological father to the child."
In a dissent, Justice Paul Danielson argued that listing a parent's name on a birth certificate is "a benefit associated with marriage" and noted that "the United States Supreme Court held in Obergefell that states are not free to deny same-sex couples 'the constellation of benefits that the States have linked to marriage.' Importantly, the Court listed 'birth and death certificates' specifically as one of those benefits attached to marital status."Plaintiffs in the Arkansas case are attempting a U.S. Supreme Court appeal.