Gov. Asa Hutchinson
's directive to the Health Department on Friday
established procedures that treat same-sex couples the same as opposite-couples when it comes to presumptive parenthood on birth certificates. The move was met with praise from the National Center for Lesbian Rights
(NCLR), part of the legal team that had represented the plaintiffs in the birth certificate case.
“We are pleased Governor Hutchinson is taking this step to ensure that married same-sex parents in Arkansas are treated equally," said NCLR Family Law Director Catherine Sakimura
in a statement. "This is settled law."
About time, pointed out Sen. Joyce Elliott.
Elliott was one of the sponsors of a bill filed back in March that would have resolved the issue, but it died after no Republican would back a motion to consider it in committee.
The state had waged a protracted legal fight to to keep the old procedures in place, which demanded that same-sex married couples get a court order that was not required of opposite-sex couples in order to get their names on birth certificates. This extra bureaucratic hoop didn't seem to serve much purpose (the state was hardly rigorous about establishing paternity in any case). The state came up with some baroque arguments about the necessity of the old regime, but the U.S. Supreme Court ruled in June that it was an unconstitutional violation of the equal protection clause.
The state then dragged its feet on complying with the law for months, supposedly in deference to the legislature, which showed no interest in coming up with a legislative fix. When a circuit judge ordered mediation to resolve the issue, Attorney General Leslie Rutledge
filed a motion for an emergency stay to halt the order. At that point, Fox threw up this hands, ordering that the state stop issuing all birth certificates until the procedures were adjusted to be in compliance with the Supreme Court's ruling. "There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis," Fox wrote.
And what do you know? Within a matter of less than two hours
, the governor came up with a simple fix. Rutledge said it was "reasonable," which might make one wonder about the point of all of the state's delay tactics to preserve the old regime.
One issue to watch — Cheryl Kathleen Smith Maples
, the lead attorney for the plaintiffs, said in yesterday's Democrat-Gazette
that while she was pleased with Hutchinson's directive regarding birth certificate procedure, the directive did not mention a section of the law that was included in Fox's order, involving adoption and the legitimization of children born out of wedlock. That section of the law does not include any language about gender to begin with, and Maples said that she had received assurances from the attorney general's office that same-sex couples would be treated the same as opposite-sex couples.
Another issue to watch: The Health Department's procedures for implementing the second item in the governor's directive, which stated that the department “must issue, at no charge and upon request, two corrected birth certificates listing both spouses" if those spouses were not presumptively listed on the certificate under the old procedure but would be under the new rules.
A commenter on our post on the governor's directive wrote:
I have waited nearly two years for this, to be able to get my child's birth certificate with any measure of dignity (that is, without the indignity of obtaining a court order identifying myself as a "stepparent" petitioning for "parental" rights). So far, in calling ADH to see what I need to bring, I have been put in endless hold queues and given no information. I hope they hold an emergency meeting and sort out how to implement this, and make it as easy as possible on those of us seeking a correction. I don't wish to wait any longer to put this behind me.
A Health Department spokesperson was apologetic when I asked about this issue and pointed to the ongoing issues that Vital Records has been dealing with: "VR has had a larger than usual volume of requests this year, and that along with other issues has caused our customer service to not always be what it should be." I asked for more details on the precise process for people attempting to obtain corrected birth certificates under the governor's directive and will update if I hear back.