On Monday, the Supreme Court reversed an Arkansas Supreme Court decision pertaining to same-sex couples and birth certificates. In Pavan v. Smith, the Supreme Court discussed an Arkansas law that requires a woman's husband's name to appear on the birth certificate if the woman becomes pregnant or gives birth while she is married. The Arkansas court's original decision in this case permitted a form of discrimination against same-sex couples — a decision that has been reversed by the Supreme Court. However, Justice Neil Gorsuch's dissent in the birth certificate decision includes a line that seems to be rooted in a factual error.
Gorsuch joined Justices Clarence Thomas and Samuel Alito in dissenting from the court's ruling. But his dissent appeared to contain some inaccuracies, along with an implication that he took a conservative approach to LGBTQ rights.
Under the current Arkansas law, a child born to a woman who is married has the mother's spouse listed on the birth certificate. Here is what is confusing about this: Under this law, a mother's husband would be listed as the child's co-parent, even if the mother was artificially inseminated. But in a same-sex couple, the same rule about artificial insemination would not apply to the mother's wife.
This law came to the Supreme Court because of Terrah Pavan and her wife, Marisa. Terrah gave birth in Arkansas to a child conceived by artificial insemination. But when the Pavans asked the state of Arkansas to list Marisa as another parent on the child's birth certificate, the state refused. The Arkansas court upheld this decision, but the Supreme Court ultimately reversed it, with the reasoning that it violated the landmark marriage equality decision in Obergefell v. Hodges.
And Gorsuch seemed to misunderstand one part of the case. He wrote in the dissenting opinion:
So that 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.
Slate's Mark Joseph Stern pointed out this isn't correct — it was because Arkansas was refusing to list mothers' female spouses on birth certificates that the case appeared before the Supreme Court in the first place.
A Supreme Court spokesperson wouldn't comment to Stern, saying the court's opinions "speak for themselves." But Shannon Minter, the legal director of the National Center for Lesbian Rights and lawyer for two couples who were fighting this law, told Stern that sentence is totally off-base:
It is patently untrue. Arkansas refused to put the female spouse of a birth mother on the birth certificate. The Arkansas Supreme Court upheld the policy, and the state would not issue birth certificates that listed both same-sex parents.
But Gorsuch went further than inaccuracy in his dissent. “Nothing in Obergefell indicates that a birth registration regime based on biology … offends the Constitution," Gorsuch wrote. "Neither does anything in today’s opinion purport to identify any constitutional problem with a biology based birth registration regime.”
The Supreme Court made the ruling it did because the Arkansas law violated a key tenet of Obergefell v. Hodges — that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.'" This is likely why Chief Justice John Roberts joined the majority opinion in Pavan v. Smith, even after dissenting in Obergefell v. Hodges — to uphold a decision that had already been made.
If there was any question before about how Gorsuch would rule in LGBTQ rights cases, there is little doubt for many now that he has made clear he's to the far right on this subject.