Marisa N. Pavan, et al. v. Nathaniel Smith

Pavan v. Smith (2017) was a U.S. Supreme Court decision that clarified the legal parenting rights for the non-biological partner in a same-sex marriage. Rather than hearing oral arguments on the matter, the Court summarily rejected the decision of the Arkansas State Supreme Court denying a wife of a mother the opportunity to be listed as a parent on the couple’s child’s birth certificate, a privilege that was presumptively granted to husbands under Arkansas law.

In 2015 Obergefell v. Hodges decision, the U.S. Supreme Court ruled that state laws that barred same-sex marriage violated the Due Process and Equal Protections Clauses of the U.S. Constitution’s Fourteenth Amendment. Following that victory for marriage equality advocates, the Arkansas State Supreme Court acted in a long-pending case and extended the ruling to void components of the Arkansas Constitution and statutory law defining marriage as one only between a man and a woman. Questions immediately arose about another long-held state policy that limited the two parents listed on a child’s birth certificate to opposite-sex couples. The second parent in a same-sex relationship was allowed, instead, to undertake a traditional adoption process in court.

Two sets of legally married same-sex parents—Marisa and Terrah Pavan and Leah and Jana Jacobs—had babies following the Obergefell decision and filled out the appropriate paperwork to have the non-biological mother listed as a parent. The Arkansas Department of Health, citing state law, issued birth certificates for their children listing only the birth mother. Nathaniel Smith, the director of the department, became the other named party in the suit. The legal effort was led by attorney Cheryl Maples.

Along with a third couple, the Pavans and the Jacobses filed suit in state court arguing that the key provision of Arkansas law—Ark. Code 20-18-401—cited in this decision by the Department of Health violated the Obergefell decision. (A second, related, statute—Ark. Code 9–10–201—that was not explicitly challenged provided that “[a]ny child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.”) In late November 2015, Circuit Judge Tim Fox agreed that, as a result of Obergefell, denying the right for both parents to be listed on birth certificates would be a constitutional violation for the three cases before him. In his ruling from the bench, Fox stated that the issue was a complex one that should be remedied through a change to state policy. As a result, birth certificates continued to be denied to couples who were not part of the case for several days. After the Department of Health began issuing birth certificates to couples in similar situations following Judge Fox’s written ruling, the state Supreme Court ordered that no changes to policy be allowed pending appeal of the Fox ruling.

In December 2016, the state Supreme Court overturned the circuit court decision and affirmed existing Arkansas law on the matter. Writing for a five-judge majority, Justice Josephine Hart argued in a lengthy decision that for the state judicial branch to intervene in the matter would require them to do the job of the Arkansas General Assembly, and that biological parentage and marriage were fundamentally different things. She wrote in upholding the policy: “Thus, the statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife.” Two justices dissented. Chief Justice Howard Brill began his dissent with the lyrics of Bob Dylan’s “The Times They Are A-Changin’” in emphasizing that Obergefell had fundamentally altered the legal landscape in such matters. “The times indeed are a-changin’. All three branches of the government must change accordingly. It is time to heed the call,” Brill wrote. The dissenters also noted that in oral arguments the state’s attorneys conceded that “pursuant to the Court’s holding in Obergefell, [a married same-sex] couple is entitled to a birth certificate listing both women as parents. The State suggested that this court simply substitute the word ‘spouse’ for ‘husband’ in § 9-10-201(a).”

The Pavans and the Jacobses appealed the Arkansas Supreme Court decision to the U.S. Supreme Court. Meanwhile, in the 2017 session of the Arkansas General Assembly, attempts were made to remedy the situation legislatively, but those efforts failed. As the spring 2017 session of the U.S. Supreme Court neared its end with no action on the Arkansas case, some expected that the Supreme Court might accept the case for oral argument the following fall. However, on the final day of the term—the second anniversary of the Obergefell decision—the Court summarily overturned the Arkansas Supreme Court ruling, meaning that the Court saw no need for a full oral argument. In the per curium ruling, a six-justice majority wrote the following rejecting the logic of the Arkansas Supreme Court: “Arkansas has…chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.” Therefore, the decision was significant in solidifying and extending the Obergefell decision to protecting the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The case also marked a dissent by new U.S. Supreme Court justice Neil Gorsuch, who wrote for the three dissenters in the decision. In that dissent, he argued that summary reversal on such a case was improper and also seemed to agree with the Arkansas Supreme Court majority’s view that the birth certificate system should be tied to biological paternity.

For additional information:
Aldridge, Brad. “A Constellation of Benefits and a Universe of Equal Protection: The Extension of the Right to Marry under Pavan v. Smith.” Arkansas Law Review 72.1 (2019): 245–295.

Lynch, John. “Judge: Ruling Levels Field on Birth Records for Same-Sex Couples.” Arkansas Democrat-Gazette, December 2, 2015 pp. 2B, 3B.

Marisa N. Pavan, et al. v. Nathaniel Smith. 2017. U.S. Supreme Court. https://www.supremecourt.gov/opinions/16pdf/16-992_868c.pdf (accessed June 22, 2023).

Nathaniel Smith v. Marisa N. Pavan, et al. 2016. Arkansas Supreme Court. http://law.justia.com/cases/arkansas/supreme-court/2016/cv-15-988.html (accessed June 22, 2023).

Stern, Mark Joseph. “Gorsuch’s First Anti-Gay Dissent Has a Huge Factual Error—and Terrible, Dishonest Logic.” Slate.com, June 28, 2017. http://www.slate.com/blogs/outward/2017/06/28/gorsuch_s_first_anti_gay_dissent_has_a_
huge_factual_error.html (accessed June 22, 2023).

Whelan, Ed. “Unhinged Attack on Justice Gorsuch,” National Review, July 3, 2017. https://www.nationalreview.com/bench-memos/mark-joseph-stern-slate-gorsuch-pavan/ (accessed June 22, 2023).

Jay Barth
Hendrix College