PHOENIX — A ruling Monday could strengthen claims — including in an Arizona case — that gays are entitled to marital benefits beyond just the right to marry.
In a 6-3 decision, the U.S. Supreme Court justices said their historic 2015 ruling — saying states may not limit the right to wed to heterosexual couples — stands for more. The majority in Monday’s unsigned opinion said that ruling also means same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.”
The case out of Arkansas voids a state law there, which said that when a gay married couple gives birth, only the name of the biological mother is listed on the state-issued birth certificate. The justices noted that other Arkansas laws spell out that in opposite-sex marriages, the name of the husband is always listed on the birth certificate, even if the child is the product of artificial insemination.
The new ruling could most immediately affect a case set for a hearing Tuesday, June 27 at the Arizona Supreme Court, where justices are considering the rights of a non-biological parent when a same-sex couple gets divorced.
Arizona laws, like those in Arkansas, generally require that the husband of a woman who has given birth be listed on the birth certificate. Moreover, that presumption of parenthood is key in questions of custody and visitation rights when the marriage breaks apart.
But two different divisions of the Arizona Court of Appeals have issued diametrically opposed and conflicting rulings as to whether the 2015 U.S. Supreme Court ruling extends those presumptions in case of same-sex marriage.
Potentially more significant, the broad language in Monday’s U.S. ruling could give gay rights advocates the chance to argue that other laws favoring opposite-sex couples are similarly void. One says that in adoption, “placement preference shall be with a married man and woman.”
But Maricopa County Attorney Bill Montgomery, who has taken a narrower view of the 2015 ruling, said he does not see what the high court decided on Monday as going that far.
“Because single persons, as well as married couples, can adopt, adoption is not exclusively ‘linked’ to marriage,” he told Capitol Media Services.
That contention drew fire from Jenny Pizer, attorney for Lambda Legal Defense Fund.
She said it probably would be legal for the state to decide that married couples should be given first preference in adoption over single people.
“There would be, could be, nondiscriminatory reasons to say a household can be presumed to be more stable if there are two adults to raise children and they have a legal tie between them,” Pizer said. But she said any law giving a preference for a different-sex married couple over a same-sex married couple would be constitutionally suspect.
“Well, what’s the state’s reason for that?” she said. And Pizer said gender stereotypes of men and women are “not a legitimate reason for distinction.”
Montgomery caused a stir in 2015 when he refused to have his staffers provide the same legal help to couples seeking to adopt to gay couples as his office had done for years, as legally required, for opposite-sex couples. He insisted that rulings voiding Arizona laws banning same-sex marriage did not give gays the same legal standing to adopt.
“The Supreme Court case addressed marriage,” he said at a news briefing. “It didn’t address adoption, so I didn’t read it to affect that at all.”
In a bid to help Montgomery, Arizona lawmakers approved legislation to rescind the mandate that county attorneys provide legal help to couples seeking to adopt. But that was vetoed by Gov. Doug Ducey, who said he wants more children who need homes adopted and does not particularly care if the parents are straight or gay.
“I want to see more kids in loving homes under the legal structure,” the governor said at the time. “And that’s just something I’m going to continue to be a legal advocate for.”
But Montgomery, rather than have his own staff provide the help, decided to farm out the legal help to private attorneys for all adoptions.
Mia Garcia, spokeswoman for Attorney General Mark Brnovich, said Monday’s ruling is being reviewed. “This office is committed to interpreting state statute and following decisions from the nation’s highest court,” she said.
Two years ago, after the first court rulings legalizing same-sex marriage, Brnovich had advised the Department of Child Safety he did not read them to revise other laws, including one that says only “a husband and a wife may jointly adopt children.” But DCS, at Ducey’s instruction, ignored Brnovich’s advice.
