PHOENIX — The spouse of a gay Tucson woman who has given birth is entitled to the same parental rights as if she had been a man, even when they’re not “biologically related” to the child, the Arizona Supreme Court ruled today.
Chief Justice Scott Bales, writing for the majority, acknowledged that Arizona laws dealing with presumption of paternity use terms like "father,” "he” and "man.” Those laws say the husband in a marriage is presumed to be the parent of any child born within 10 months of a marriage.
He conceded that Suzan McLaughlin could not possibly be biologically related to the child born in 2010 to Kimberly McLaughlin, to whom she was legally married at the time.
But Bales said all that is irrelevant in the wake of the historic 2015 U.S. Supreme Court ruling declaring that states have no right to limit marriage to one man and one woman. More to the point, he said, the nation's high court concluded that same-sex couples are entitled to civil marriage on the same terms and conditions as opposite-sex couples.
"It would be inconsistent with (the 2015 ruling) to conclude that same-sex couples can legally marry but states can deny them the same benefits of marriage afforded opposite-sex couples,” he wrote.
Today's ruling is a broad victory in for gay rights — and not just involving questions of divorce and child custody.
Some foes of same-sex marriage have argued that the 2015 ruling permits only the marriage of same-sex couples. People like Cathi Herrod of the Center for Arizona Policy said none of that disturbs other Arizona laws like those giving preference in adoption to a heterosexual married couple.
But Bales said he and his colleagues believe what the U.S. Supreme Court decided "will require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.” He said that includes everything form taxation, property rights and hospital access to campaign finance rules — and adoption rights.
Bales said that could occur on a piecemeal basis, as those denied those rights file suit. But he said the better alternatives would be for the governor and Arizona lawmakers to comb through the rules and laws and eliminate those that discriminate.
"Like the judiciary, the legislative and executive branches are obliged to follow the United States Constitution,” he said. "Through legislative enactments and rulemaking, our coordinate branches of government can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires — namely, the same benefits afforded couples in opposite-sex marriages.”
