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Thu, Dec. 12

Judge: Paternity not equal in same sex marriage

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 which 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 exactly 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 which 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 which favor opposite-sex couples remain legal despite what the U.S. Supreme Court decided.

That includes a law which says that only “a husband and a wife’’ can jointly adopt children. And another law says that 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 here is over an Arizona 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 non-biological 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 high 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. And he rejected Oakley’s contention that the ruling requires courts to read all marriage-related statutes in a gender-neutral fashion to put same-sex couples on the same legal footing as opposite-sex couples.

And Howe took a slap at the other appellate panel for concluding that it can ignore biology -- and the fact it takes a man and a woman to produce a baby -- and decide that a same-sex partner is entitled to claim a presumption of parenthood.

“This conclusion fails to recognize that, with the exception of adoption, which is not involved in this case, parentage in Arizona (ITALICS) is (ROMAN) determined by biology,’’ he wrote. “Arizona does not recognize de facto parentage.’’

Anyway, Howe wrote, even if the statute is read in gender-neutral fashion, that does not help Oakley’s case, citing the fact that the law allows presumption of paternity to be rebutted by clear and convincing evidence.

“Because Oakley and other similarly situated spouses are never biologically related to the children involved in the dissolution proceedings, even if the statute is read gender-neutral, the other spouse will always defeat the presumption by proving that the former spouse is not biologically the child’s parent,’’ he said.

Howe said the court sympathizes with Oakley’s desire to establish parenthood and the need of the child to have “permanent and stable’’ parental relationships.

“But the paternity statutes as they are currently written provide no remedy to Oakley and we cannot rewrite the statutes to do so, no matter how laudable that outcome might be a a matter of public policy,’’ the judge said.

Thursday’s ruling was praised by Cathi Herrod, president of the Center for Arizona Policy which opposed same-sex unions and has argued in favor of preserving certain statutory rights for heterosexual couples.

“The Arizona Court of Appeals did what judges should do: They interpreted a statute based on a plain reading of the statute,’’ she said, concluding that when the law says “male’’ it means what it says. “So they did not rewrite the statute to include ‘men or women’ or ‘spouse regardless of biological identity.’ ‘’

And Herrod said she agrees with Howe that the 2015 Supreme Court ruling legalizing same-sex marriage “does not extend to every other statute that grants rights on the basis of marriage between a man and a woman.’’

That still leaves the question of the implications of whether gender-specific terms still have to be applied despite the U.S. Supreme Court ruling.

Gov. Doug Ducey, who took office in early 2015, unilaterally revoked what had been the policy of the Department of Child Safety of not allowing gay married couples to adopt or foster children. That, in turn, provoked a response from Attorney General Mark Brnovich, also newly elected, who insisted that even if the Supreme Court voided laws against same sex marriage -- something it had not yet done at the time -- it did not undermine the right of legislators to decide to give preference in adoption to opposite-sex couples.

But Brnovich never challenged Ducey’s directive and DCS has since ignored the statute. That, however, still leaves open the possibility a future governor could reverse the directive.

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