Late this afternoon, the attorney general's office
released a letter to the Arkansas Supreme Court
suggesting a path for the state of Arkansas to move forward to end discrimination against same-sex couples
in issuing birth certificates.
The U.S. Supreme Court
ruled Monday that the state's refusal to list both parents of a same-sex couple on a birth certificate — while giving presumptive parenthood to both parents in an opposite sex couple regardless of means of conception — was unconstitutional.
A letter from Lee Rudofsky, top
deputy in Attorney General Leslie Rutledge, to Stacy Pectol, clerk of the Supreme Court, noted that the Supreme Court referred its reversal of the Arkansas Supreme Court for further proceedings consistent with the opinion but did not give "clear instructions" on how to proceed.
The letter acknowledged that the state used the birth certificate as more than a biological record (unlike the Arkansas Supreme Court had contended.) Instead, it uses the certificate for other forms of legal recognition not equally available to same-sex married couples. A critical paragraph:
Rudofsky said the solution is a "gender neutral" reading of assisted reproduction statutes. (This could means
couples with male and females as non-biological parents.) It would fix the constitutional violation and not create other problems, he said. Many other states already do the same. Arkansas could have done it long ago, including in the last legislative if only the state hadn't insisted on defending the indefensible and running up enormous legal bills to
defend discrimination against gay people, which is de facto and de jure state policy.
Simple: Married parents should be listed as parents on a birth certificate. Opposite sex couples aren't questioned about egg and sperm donors or, God forbid, whether a milkman intervened in the process.
The question is whether the resistant Arkansas Supreme Court can be persuaded to resolve this question without taking a summer vacation first. And if a remedy arises, will the legislatre
insist in hearings on agency rules. Imagine if Jason Rapert or Bart Hester is given the floor on this.
Rudofsky suggested asking views of all parties to help the Arkansas Supreme Court make a "reasoned, informed and reflective" judgment.
Here's the full letter.
Rutledge couldn't resist noting a "divided" Supreme Court in the case. It was divided in the opinion only on whether Arkansas should be summarily rebuffed. Three judges — the antti
-gay Neal Gorscuh
, Joseph Alito and Clarence Thomas — wanted more arguments first.