Friday, December 9, 2016
The Supreme Court of Arkansas announced yesterday that the state has a vested interest in continuing to list a child's biological parents on his or her birth certificate. Last year, the county circuit court had allowed three same-sex couples to amend the birth certificates to include both spouses' names without a court order (as required in adoption cases). That decision was overruled.
Writing the AR Supreme Court's opinion, Justice Josephine Linker Hart explained: "In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths." The dissent argued that the inclusion of the parent's name on the birth certificate ought to flow from marriage--not biology. Find the state court's opinion here.
Like the legal fiction created by the abortion cases in the use of the term "potential life" to describe the very actual, albeit nascent, vulnerable, and dependent human being whose life is snuffed out by the procedure, Obergefell v. Hodges created another such fiction regarding basic biology. From the Obergefell Court's opinion: "A third basis of protecting the right to marry...draws meaning from related rights of childrearing, procreation, and education..." And then, "All parties agree, many couples provide loving and nurturing homes to their children, whether biological or adopted." I do not quote these here to dispute the substantive point of the parties' agreement; rather, I seek to emphasize Kennedy's use of the terms procreation and biological children in the context of same-sex relationships. The use of these terms by the highest court in the land--like "potential life" in decades past--is pure legal fiction. To repeat the good Arkansas judge, who is simply upholding a well-grounded tenet of equal protection jurisprudence: "It does not violate equal protection to acknowledge basic biological truths."
Correction: The original version of this post incorrectly used the postal abbreviation for Alaska.