Civil and Human Rights

Pavan, et al. v. Smith

In Pavan, et al. v. Smith, the U.S. Supreme Court was asked to consider whether the Arkansas Supreme Court properly concluded that Arkansas may, consistent with the Fourteenth Amendment, prevent a mother’s same-sex spouse from being listed on her child’s birth certificate, even though the general rule under Arkansas law is that a mother’s opposite-sex spouse must be listed on the child’s birth certificate, even when he is not the child’s biological parent.

Case Summary

In 2015, Marisa and Terrah Pavan, a legally married same-sex couple, gave birth to a daughter who had been conceived through an anonymous-donor sperm donation. They applied for a birth certificate for their daughter, listing both women as parents on the application. However, when the Arkansas Department of Health issued the birth certificate, it listed only Terrah, who had given birth to their daughter, as a parent. The Pavans, along with another same-sex couple, brought suit against the Department of Health, claiming that the Department’s refusal to list both parents on the birth certificate violated the Fourteenth Amendment of the U.S. Constitution. Although the lower state court ruled for the Pavans, the Arkansas Supreme Court reversed, holding that the Arkansas birth certificate laws were not inconsistent with the Fourteenth Amendment because “[t]he purpose of the [state birth certificate] statutes is to truthfully record the nexus of the biological mother and the biological father to the child.” The Pavans then filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the Court to review their case.

On March 15, 2017, CAC filed a friend-of-the-court brief on behalf of the same-sex couples seeking equal treatment under the Arkansas birth certificate laws. Our brief argued that the decision of the Arkansas Supreme Court is inconsistent with the text and history of the Constitution, as well as Supreme Court precedent. As the Supreme Court recognized in Obergefell v. Hodges, the Fourteenth Amendment guarantees all persons an equal right to marry the person of their choice. Indeed, the Amendment’s guarantee of substantive liberty, together with its guarantee of equal protection for all persons, protects fundamental rights central to the individual dignity and autonomy of all persons. Moreover, the Fourteenth Amendment and the Supremacy Clause together require that the Fourteenth Amendment’s equal protection guarantee must be enforced against contrary state law. Here, the decision of the court below, which upheld Arkansas’s disparate treatment of similarly situated same-sex and opposite-sex couples and denied same-sex married couples the full constellation of benefits associated with marriage, cannot be squared with either the Fourteenth Amendment’s text and history, or the Supreme Court’s recognition of the right to marry as “fundamental under the Constitution.” Accordingly, we urged the Supreme Court to review this case and reverse the ruling below.

On June 26, 2017, the Supreme Court issued a per curiam decision in which the Court summarily reversed, 5-3, the decision of the Arkansas Supreme Court. The Court made clear that Arkansas uses birth certificates as more than a “mere marker of biological relationships”: instead, “[t]he State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.” Given that, denying a form of legal recognition to married same-sex couples that is available to married opposite-sex couples violates the Fourteenth Amendment. As the Court explained, this differential treatment of same-sex couples “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.’” The case was remanded to the Arkansas Supreme Court for further proceedings.

Case Timeline

More from Civil and Human Rights

Civil and Human Rights
September 12, 2018

It’s Time to Close a Loophole in the Constitution’s Double Jeopardy Rule

The Double Jeopardy Clause of the Fifth Amendment states that no one can be tried...
Civil and Human Rights
September 16, 2018

Understanding the three-fifths compromise

San Antonio Express-News
Constitution Day is today. The U.S. Constitution is a document that evolves with the times....
Civil and Human Rights
August 22, 2018

Toward a More Perfect Union: The LGBTQ Community and the Constitution

Host: American Constitution Society and Human Rights Campaign
Join ACS and HRC for an afternoon symposium addressing the relationship between the LGBTQ community,...
Participants: Praveen Fernandes, Katie Eyer, Caroline Fredrickson, Nancy J. Knauer, Sharon McGowan, Shannon Minter, Steve Sanders, Paul Smith, Ria Tabacco Mar, Harper Jean Tobin, Sarah Warbelow, JoDee Winterhof
Civil and Human Rights
September 21, 2018

The 14th Amendment at 150 Symposium

Ratified 150 years ago, the 14th Amendment has been called America’s “Second Founding.” The Bill...
Participants: Brianne J. Gorod, Hon. Judge Elizabeth L. Branch, Hon. Judge Douglas H. Ginsburg, Hon. Judge David R. Stras, Hon. Judge Timothy M. Tymkovich, Hon. Dale Wainwright, Hon. Judge Don R. Willett, Hon. Justice Patrick Wyrick, Dana Berliner, Evan D. Bernick, David Bernstein, Josh Blackman, Robert J. Cottrol, Hon. Dominic Draye, Katie Eyer, Aderson B. Francois, Christopher Green, Martha Jones, Kurt Lash, Hon. Elbert Lin, Gerard N. Magliocca, John Malcolm, Timothy Sandefur, Anthony Sanders, Ilya Shapiro, Samuel Spital, Rebecca E. Zietlow
Civil and Human Rights
August 9, 2018

Crisis In The Courts: The Future of LGBT Equality and the Federal Judiciary

Host: National LGBT Bar Association
Civil and Human Rights
July 19, 2018

Michael Anton’s Op-Ed on Ending Birthright Citizenship Is Racist, Ahistorical Gobbledygook

Should Donald Trump issue an executive order purporting to strip millions of children of immigrants...