In what could be a key victory for gay rights, the U.S. Supreme Court refused Monday to overturn a ruling that says gay couples are entitled to the same parenting rights as opposite-sex people when they get divorced.
The court refused to consider arguments by Kimberly McLaughlin that she cannot be required to share custody of her biological child with Suzan McLaughlin, who she was legally married to at the time of the childβs birth. The justices provided no reason for their decision.
Mondayβs order does not end the case or determine the fate of the boy, born in 2011. Instead, it sends it back to Pima County Superior Court, where the pair have been battling now for years.
Claudia Work, who is Suzan McLaughlinβs attorney, said her client is βover the moon.β
βNow that the last impediment is gone, because obviously it canβt be appealed any more, we now are confident that we can go back in (to court) and settle this short of trial,β she said. Work said that Suzan McLaughlin has been granted visitation on a regular basis since last year.
But Mondayβs order isnβt just about Suzan McLaughlin. Work said there are at least three other child-custody cases that will be affected by the U.S. Supreme Court order.
Beyond those specific cases, Mondayβs action leaves intact the precedent-setting 2017 Arizona Supreme Court ruling which says that, when it comes to matters of marriage and divorce, all unions are considered equal in the eyes of state law.
In an extensive opinion at that time, Scott Bales, the chief justice of the stateβs high court, said the historic 2015 U.S. Supreme Court ruling allowing gays to wed did more than overturn laws limiting marriage to one man and one woman. Bales, writing for the majority, said that it also means that same-sex couples are entitled to civil marriage βon the same terms and conditions as opposite-sex couples.β
A subsequent U.S. Supreme Court ruling spells out that same-sex couples must have access to the βconstellation of benefits that the state has linked to marriage.β
All that, in turn, could undermine arguments by some foes of same-sex marriage who contend that the fact gays are entitled to wed does not disturb other laws which provide disparate treatment. That includes an existing Arizona statute which says that in cases of adoption, preference must be given to a married man and married woman.
But Cathi Herrod, president of the Center for Arizona Policy, said she does not believe what happened Monday means all such gender-based laws are now at risk. She pointed out that the justices simply decided not to review the state Supreme Court ruling.
Herrod, whose organization opposes same-sex marriages β it was behind the 2008 ballot measure defining marriage in Arizona as solely between one man and one woman β said she will continue to push for and defend laws providing differential treatment for same-sex couples.
βI believe there are policy areas that should be left to the state Legislature to determine,β she said, even with the U.S. Supreme Court deciding states cannot differentiate between marriages based on the gender of the partners.
Maricopa County Attorney Bill Montgomery has suggested that laws on giving heterosexual couples preference in adopting children may be legally defensible given βthe biological diversity necessary to create them in the first instance.β
What Mondayβs order by the U.S. Supreme Court does is leave in place the Arizona Supreme Court ruling that biology has its limits β and that state law cannot be governed by biological differences when it comes to child-custody cases.
The issue in this case surrounds an Arizona law that says that a child born to a woman within 10 months of her marriage is presumed to be biologically related to the father.
Kimberly and Suzan, legally married in California in 2008, agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly McLaughlin became pregnant in 2010.
The couple moved to Tucson, entered into a joint-parenting agreement and executed mirror wills, declaring they were equal parents to the child. After the boyβs birth in 2011, Suzan McLaughlin stayed home and cared for him while Kimberly McLaughlin worked as a physician.
When the boy was nearly 2, Kimberly McLaughlin moved out, taking him with her and cutting off his contact with Suzan McLaughlin.
In filing for divorce, Suzan McLaughlin sought parenting time, citing that Arizona law about presumption of parentage. Kimberly McLaughlin has fought that at every step, arguing that legal presumption, by its plain wording, applies only when the other spouse is a man.
Kimberly McLaughlinβs attorney, Keith Berkshire, argued to the U.S. Supreme Court that there are legal and biological reasons why the presumption cannot be applied in cases of same-sex marriage.
He told the justices that nothing in their prior rulings require states to ignore the fact that men and women are different β and that, by definition, two women cannot both be the biological parent of a child born to one of them. He said it was wrong of the Arizona Supreme Court to effectively rewrite the statute that says that only men are entitled to the presumption of βpaternityβ of a child born during a marriage.
Berkshire also argued the state Supreme Court acted illegally last year in ruling for Suzan McLaughlin.
