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Dissent by Justice Gorsuch Ignores Legal Reality of Paternity Debate

Legal paternity has often conflicted with reality. Most state laws assume that the husband of a woman is the father of the child, regardless of whether that is biologically true. To be sure, this presumption is convenient – husbands don’t have to get tested whenever their wives become pregnant. However, this assumption has caused no shortage of legal headaches, as issues such as adultery, insemination, and the best interests of children often threaten to unravel the presumption. The debate over paternity has taken on new dimensions after the Supreme Court legalized same-sex marriage.

paternityIronically, Pavan vs. Smith doesn’t involve any fathers. Terrah and Marisa Pavan, a lesbian couple, married in 2011. Terrah gave birth to a child in Arkansas in 2015. Arkansas law requires that the biological mother, in this case, Terrah, be listed on the child’s birth certificate as the mother. The law also requires that the husband, if any, be listed as the father. Marisa requested that she be added to their new baby’s birth certificate as the child’s other mother because she was the legal spouse of Terrah. Arkansas’s Department of Health, the Department responsible for issuing birth certificates, refused, arguing that state law specifically called out “husbands” rather than “spouses” to be added to birth certificates. The Pavans sued, arguing that the law was discriminatory as it restricted a marital benefit to straight married couples only.

Arkansas argued that their law was legal because the statute was about the biological relationships of the children, not the marital status of the parents.  The Arkansas Supreme Court agreed and upheld the law. The Pavans appealed to the Supreme Court and the Court reversed the state Court in a 6-3 decision, with Justices Gorsuch, Alito, and Thomas dissenting. The majority ruled that the law was discriminatory as it withheld a marital benefit from same-sex couples – the legal presumption that the spouse of the biological mother is the child’s other parent. The Gorsuch minority dissented, agreeing with Arkansas that the birth certificate of the child was about the parental relationships of the child, not the marital status of the parents.

Where Does Justice Gorsuch Go Wrong?

The Gorsuch minority’s logic is fatally flawed. Although a birth certificate’s purpose is to declare the parental relationships of a child, Justice Gorsuch and the state of Arkansas ignore the law’s assumption that paternal relationships are based on marriage status. When marriage status is used as shorthand for a child’s parental relationships, then the birth certificate ceases to be strictly about biology. The biggest issue with Justice Gorsuch’s dissent is that he fails to even acknowledge this assumption. If a man who potentially has no blood relation to the child, but is allowed to be the child’s father because of his relationship with the child’s mother, there is no reason a woman cannot be allowed to be a child’s other parent based on her relationship with the mother.

Indeed, the legal fiction that is paternity is acknowledged by Arkansas’s statutes. According to Arkansas, if the biological mother, biological father, and the mother’s husband all agree that the father should be on the birth certificate instead of the husband, then the father’s name will be used instead. This exception shows that Arkansas itself recognizes that there may be cases where the husband is not the father. Of course, this is the exception rather than the rule, but this exception highlights that the birth certificate is about the law’s assumption about marital status, not just biology.

What’s Our Takeaway?

Of course, states like Arkansas maintains the presumption that husbands are legal fathers of their wives’ children because states want to maintain the institution of marriage. It would extremely disruptive to a married couple’s life if one spouse was raising children with a person outside the marriage. It is beneficial to children that their parents have a document that can prove their relationship to the child, but the reason children don’t have three or more parents is to preserve the ideal of dual parents raising a family.

There is no reason why either of those justifications can’t be applied to a lesbian marriage. It would disruptive to the Pavan’s marriage if Terrah was forced to be a single parent even though she is legally married to Marisa. Putting Marisa down as the other parent would allow her to take the baby to see the doctor or to fill out school forms without Terrah haven’t to carry all the burden of raising a child. The remedy is also easy: change all gender specific statutes to gender neutral statutes. The institution of marriage can be preserved, if judges like Gorsuch will preserve it.

Jason Cheung


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