PHOENIX — Saying lawmakers wrote what they meant, the state Court of Appeals ruled Thursday that the same-sex spouse of a woman who gave birth to a child is not entitled to a presumption she is a parent.
In what could be a significant setback for gay rights, the court said the law on paternity “clearly and unambiguously provides that it applies solely to men.” And Judge Randall Howe, writing for the majority, said judges are powerless to change that, even in the face of the historic 2015 U.S. Supreme Court ruling that said gays are legally entitled to marry.
“Given their ordinary means, ‘man’ means ‘an adult male human being’ and ‘father’ means ‘the male parent of a child,’” Howe wrote. “Each of these words is gender-specific to males and not applicable to females.”
Thursday’s ruling comes six months after a different division of the Court of Appeals reached the opposite conclusion.
In that case, the judges rejected the arguments by the biological mother of a child that the Arizona laws determining who is legally presumed the parent of a child only apply when that other person is a male. Appellate Judge Philip Espinosa said that is overridden by that 2015 ruling that he said clearly stands for the premise that same-sex marriages are entitled to the same legal protections as traditional heterosexual unions.
Thursday’s ruling now sets the stage for the Arizona Supreme Court to decide which reading of the law is correct. A hearing is set for this coming week.
But if what was decided Thursday is ultimately upheld, that has implications beyond child custody cases in gay marriage. It would lend legal credence to arguments that other Arizona laws that favor opposite-sex couples remain legal despite what the U.S. Supreme Court decided.
That includes a law that says only “a husband and a wife” can jointly adopt children. And another law says if the choice for adoption is between a single person and a married couple, “placement shall be with a married man and woman.”
The fight is over a state law that spells out that a man is presumed to be the father of a child if he and the mother were married at any time within 10 months immediately preceding the birth.
But that presumption can be rebutted if the other parent — the father under Arizona law — provides “clear and convincing evidence” he is not the biological parent. That becomes an issue in cases like this where the child is the result of artificial insemination and the spouse cannot be biologically related.
This case involves Heather Turner and Liza Oakley who were married in October 2014.
According to court records, the intent was for Turner to be artificially inseminated and carry the child. That resulted in a birth in 2015.
Turner listed Oakley on the birth certificate as the “father.” But there was never any effort to have Oakley formally adopt the child.
When the marriage fell apart, Turner argued successfully in court that Oakley could not assert any rights regarding temporary legal decision-making during the divorce or parenting time.
But that was before the October appellate court ruling that the nonbiological same-sex parent in a marriage is entitled to be presumed a parent. After a new hearing, the judge said Oakley was entitled to the presumption and that Turner could not rebut that because the evidence showed the women intended to raise the child together as co-parents.
That led to this appeal and the ruling that when lawmakers say “man” and “woman,” that’s precisely what they mean, regardless of what the U.S. Supreme Court said about same-sex marriage.
Howe said that decision established just two things.
First, the court spelled out that marriage is a “fundamental right” that government cannot deny to same-sex couples. And second, it requires all states to recognize same-sex marriages performed in other states.
“Neither of the court’s holdings mandates that any laws dealing with maternity and paternity need to be changed or expanded,” Howe wrote.
