Arizona Supreme Court affirms equal rights of same-sex parents.

Arizona Supreme Court Unanimously Affirms the Equal Rights of Same-Sex Parents

Arizona Supreme Court Unanimously Affirms the Equal Rights of Same-Sex Parents

Outward
Expanding the LGBTQ Conversation
Sept. 19 2017 4:32 PM

Arizona Supreme Court Unanimously Affirms the Equal Rights of Same-Sex Parents

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Arizona will now recognize the equal dignity of same-sex parents.

Joe Gratz/Flickr

On Tuesday, the Arizona Supreme Court issued a highly anticipated decision unanimously affirming the equal rights of same-sex parents in the state. The ruling will require Arizona to extend the same presumptions of parentage to same-sex and opposite-sex couples, ensuring that the state cannot use the pretext of biology to discriminate against gay residents. It is an important confirmation of Obergefell v. Hodges at a time when marriage equality is under increasing assault by both state and federal judges.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Tuesday’s ruling in McLaughlin v. McLaughlin involves an Arizona statute that creates a “presumption of paternity” in opposite-sex relationships. Under the law, the husband of a birth mother is presumed to be the child’s legal parent—even if the birth mother conceived through artificial insemination. But what about married lesbians who conceive via artificial insemination? Two lower courts grappled with that question and reached different conclusions in light of Obergefell. One held that Obergefell required the birth mother’s wife to receive the same presumption of parentage that a husband would. The other held that it did not.

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The Arizona Supreme Court agreed with the former interpretation of Obergefell. That decision, the majority explained, held that same-sex couples are entitled to the “constellation of benefits the states have linked to marriage,” and invalidated all state laws that “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” The majority then eloquently summarized Obergefell’s central holding:

Denying same-sex couples “the same legal treatment” in marriage, and “all the benefits” afforded opposite-sex couples, “works a grave and continuing harm” on gays and lesbians in various ways—demeaning them, humiliating and stigmatizing their children and family units, and teaching society that they are inferior in important respects.

To deny a parental presumption to same-sex spouses, the majority wrote, would perpetuate this unconstitutional stigma. Thus, the presumption must apply equally to all married couples, whether gay or straight. A birth mother’s wife must immediately be recognized as her child’s legal parent.

In one respect, the court’s holding is simply a straightforward application of Obergefell and its successor, Pavan v. Smith. But it is also an emphatic rejection of two separate but related judicial attempts to undermine Obergefell by misconstruing it.

First, the Arizona Supreme Court rebuffed the argument that the state statute merely acknowledges biology and therefore does not discriminate against gays. Justice Neil Gorsuch recently made this argument in Pavan, defending an Arkansas law that prevented same-sex parents from listing their names on their child’s birth certificate—even though straight couples are listed as parents when they conceive via artificial insemination. But, as the Arizona Supreme Court noted, these parenting statutes are designed to preserve “legal parental rights and responsibilities rather than biological paternity.” They seek to protect parental privileges, not reflect genetic truths, and must accordingly be interpreted to encompass gay parents.

Second, the majority refused to read Obergefell with implausible narrowness, as the Texas Supreme Court did in its decision refusing to extend spousal benefits to same-sex couples. In that astonishing decision, Texas’ highest court falsely stated that Obergefell “did not address and resolve” the “specific issue” of state spousal benefits. Of course it did: Once a state includes spousal benefits in the “constellation” of rights that it links to marriage, it must provide them equally to gay and straight couples. The U.S. Supreme Court may soon rectify the Texas Supreme Court’s error. But it won’t have to correct the Arizona Supreme Court: Its justices understand that Obergefell’s sweeping command mandates completely equal treatment of same-sex couples.

Marriage equality in the United States has reached a critical juncture. Conservative justices like Gorsuch, and Republican-dominated state supreme courts like Texas’, are actively striving to weaken Obergefell. That decision affects many gendered parenting laws, requiring state supreme courts to interpret its application in new contexts. These courts can either adhere to Obergefell or try to subvert it. In McLaughlin, the Arizona Supreme Court chose the former route, honoring same-sex parents’ constitutional right to “equal dignity.” Every other court in the country should follow its lead.