An important analysis in Slate by Mark Stern explains how badly Neil Gorsuch got the facts and legal analysis wrong in writing a dissent to the U.S. Supreme Court decision holding that Arkansas unconstitutionally discriminated against married same-sex couples by preventing the listing of both parents on birth certificates.
Stern notes — as I”ve tirelessly and tiresomely noted — that the Arkansas Supreme Court and Gorsuch were wrong in claiming a “biological” ground for the discrimination. If Arkansas attempted to require disclosure of biological parentage on birth certificates of all parents, they might have a point. It doesn’t. An artificial insemination statute specifically allows a non-biological parent (father) to be listed as
Stern figures that the dissent was Gorsuch’s anti-gay philosophy at work. He wants to resist granting same-sex couples the full “constellation” of marital benefits provided in the Obergfell same-sex marriage ruling. Stern speculates that Gorsuch was trying to provide a roadmap to biological justification for rulings hostile to gay rights
But he got one thing flatly wrong.
First, he wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place.
This is important. Because other courts will note the dissent for ill reasons. The Arkansas case was mentioned in the Texas Supreme Court decision I wrote about earlier today. There, the court seems to be encouraging a strategy to make gay couples fight for every single of the hundreds of rights granted by law to married couples. They’ll have to disprove a presumption that there’s a rational reason for differentiating in every case between rights of gay married couples and straight couples.
Coincidentally, I received some documents from the Arkansas Health Department today
Among the information I received were text messages between Robert Brech, general counsel at the Health Department, and Ann Purvis, the department deputy director.
Brech commented that Colin Jorgensen, who’d defended the state law for the attorney general’s office, had said that the decision
Purvis: No so sure. Let me read again more closely.
I think the Ark. Supreme Court may take its direction from Gorsuch’s dissent.
Brech: I hope they do.
I do think the court will take Gorsuch’s lead. Given that the majority would have read it, wouldn’t they have made it clear it wasn’t limited.
They can’t even write a 3 or 4 page opinion that is clear? Wonder about other states as well.
The case, and the
As Stern wrote in tearing apart Gorsuch’s work:
But that’s not going to work, because state family law is not just about biology. There is no state in the country that limits either legal parentage or birth certificates to biological parents.