LITTLE ROCK, Ark. — Arkansas’ governor ordered health officials on Friday to treat married lesbian and heterosexual couples the same when listing the parents on a birth certificate, in an effort to comply with a June U.S. Supreme Court ruling that the state’s birth certificate law was discriminatory.
Gov. Asa Hutchinson’s directive came hours after a judge blocked the state from issuing any birth certificates until it complied with the June ruling. Arkansas stopped issuing and amendment birth certificates for about two hours Friday morning after the injunction by Pulaski County Circuit Judge Tim Fox, who also cancelled mediation he had ordered between attorneys for the state and three same-sex couples to find a fix to the law.
“This case has been pending for over two years and it has been more than six months since the United States Supreme Court ruled the Arkansas statutory scheme unconstitutional,” Fox wrote in his order. “There are citizens and residents of the state of Arkansas whose constitutional rights are being violated on a daily basis.”
The U.S. Supreme Court sided with Fox’s 2015 ruling striking down part of a birth certificate law defining parents by gender. That overturned an Arkansas Supreme Court decision. The state Supreme Court ordered Fox in October to come up with a way for the state to comply with the U.S. high court’s decision.
The law required the name of the husband to appear on the birth certificate when a married woman gave birth in Arkansas, regardless of whether he was the biological father. But married lesbian couples had to get a court order to have both spouses listed. The three couples who sued the state were allowed to amend their children’s birth certificates in 2015 under a ruling issued by Fox.
Hutchinson’s order said the department must list the spouse of the woman who gives birth, regardless of the spouse’s gender. The state Health Department, which had stopped issuing and amending birth certificates Friday morning because of Fox’s ruling, resumed after the governor’s directive. Hutchinson also ordered the department to issue corrected birth certificates at no charge to married lesbian couples who should have had both spouses listed as parents.
Fox last month had threatened to halt the issuance of birth certificates altogether if both sides couldn’t find language by Jan. 5 to be stricken from the law. Rutledge told the court this week that both sides had agreed on an order on how to comply with the high court ruling, but Fox rejected it.
“Judge Fox has been preventing this agreement from becoming effective and we hope he will accept this reasonable solution,” Rutledge said after Hutchinson’s order was issued. “It is important to the people of Arkansas that birth certificates continue to be available, and the United States Supreme Court has required equal treatment in issuing them.”
In his Friday ruling, Fox said he hoped Hutchinson would have the authority to fix the birth certificate law through executive action. If the state was unable to fix the law, Fox said, the injunction would be in effect until lawmakers could address the issue. Lawmakers are not scheduled to convene again until February for a session focused on the budget. Hutchinson could call a special session.
An attorney for the couples in the 2015 ruling earlier called the governor’s directive a “simple fix that was a long time coming.”
“I’m real proud that Judge Fox took a step that forced a resolution,” attorney Cheryl Maples said. “I think the resolution was simple and I’m thrilled that now the birth certificates will be issued to married same sex couples with no problems whatsoever. “
Health Department Spokeswoman Meg Mirivel said the state issues roughly 400 to 500 new, amended or replacement birth certificates a day.
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