Originally Published: September 20, 2017 6:02 a.m.
PHOENIX — Saying all marriages are created equal, the Arizona Supreme Court ruled Tuesday that the wife of a gay woman who has given birth is entitled to the same parental rights as if she had been a man.
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 also conceded that Tucson resident Suzan McLaughlin, who sued over parental rights, 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 cannot 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.”
Tuesday’s ruling actually is a much broader victory for the rights of gays. It also undermines arguments by some foes of same-sex marriage that the 2015 ruling allows nothing more than the gays to wed and does not void other laws which provide disparate treatment.
Bales said what the U.S. Supreme Court has 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.” That includes everything from taxation, property rights and hospital access to campaign finance rules and adoption rights.
“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,” Bales wrote.
The chief justice said those laws could be reviewed -- and voided -- by courts on a piecemeal basis, as those denied equal rights file suit. But he said it would be better for the governor and Arizona lawmakers, who have yet to act following the Supreme Court ruling, to repeal the rules and laws that discriminate.
“Like the judiciary, the legislative and executive branches are obliged to follow the United States Constitution,” Bales wrote. “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.”
“We will review the decision,” said Daniel Scarpinato, press aide to Gov. Doug Ducey.
House Speaker J.D. Mesnard said he appreciates that the justices are saying it is up to the Legislature to establish policy.
“But at this point I really don’t know what we will do,” he said. Mesnard said it may be preferable to let individual cases make their way through the courts rather than “open up the whole statute” to look for laws that could be considered discriminatory.
That’s also the assessment of Senate President Steve Yarbrough.
“Whether we choose a massive rewrite of our law or allow real, specific fact situations and disputes to be resolved by the courts is a question that requires careful analysis,” he said.
Court records show Kimberly and Suzan, legally married in California in 2008, agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly became pregnant in 2010.
Before the child was born, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician.
When the boy was nearly two, Kimberly moved out, taking him with her and cutting off his contact with Suzan.
Suzan filed for divorce in 2013 and sought parenting time, citing laws which say the husband is presumed to be the parent of any child born within 10 months of a marriage. When a trial judge agreed to have the case proceed, Kimberly appealed, saying the law applies only when the other spouse is a man.
But Bales said applying the law in a gender-specific fashion in the wake of the U.S. Supreme Court decision violates the Equal Protection Amendment of the U.S. Constitution.
“Describing marriage as ‘a keystone of our social order,’ the court noted that states have ‘made marriage the basis for an expanding list of governmental rights, benefits and responsibilities,’ such as ‘child custody, support, and visitation rules,’ “ Bales wrote, quoting from the 2015 ruling.
“Denying same-sex couples the same legal treatment in marriage and all the benefits afforded opposite-sex couples works a grave and continuing harm on gays and lesbians in various ways -- demeaning them, humiliating and stigmatizing their children and family units, and teaching society that they are inferior in important respects,” the Arizona chief justice said.
Herrod, whose organization pushed through Arizona’s now-overturned 2008 voter-approved ban on same-sex marriage, acknowledged Tuesday that the U.S. Supreme Court earlier this year extended the scope of the original 2015 ruling to say that same-sex couples are entitled to “the constellation of benefits that the states have linked to marriage.” That, she said, preordained Tuesday’s Arizona Supreme Court decision.
But Herrod said voters should not hold their breath waiting for lawmakers to undo any discriminatory laws.
“My assumption is a majority of the Arizona Legislature disagrees with the U.S. Supreme Court on this issue,” she said. Anyway, Herrod said, it’s not necessary for lawmakers to have to go on the record on politically sensitive issue of whether Arizona should repeal those laws.
“The court effectively just did that,” she said.
Montgomery, however, suggested laws on giving heterosexual couples preference in adopting children may be legally defensible given “the biological diversity necessary to create them in the first instance.” And he said all the discussion to this point has been on the rights of adults in the adoption process.
“I wonder if there may be future litigation on the rights of children,” he said.
Tuesday’s ruling does not preclude a parent, gay or straight, from seeking to overturn the presumption that the spouse of a woman who gives birth is the mother. That right already exists in situations where, for example, a husband says someone else is the biological father.
Bales noted, however, that in this case the couple agreed that they intended for Kimberly to be artificially inseminated with an anonymous sperm donor and they signed an agreement declaring Suzan a “co-parent” of the child. And after the boy’s birth, Suzan stayed home to care for him during the first two years of his life.
What all that means, Bales said, is Kimberly is barred from trying to rebut Suzan’s claim of presumptive parentage in the divorce case.
Writing separately, Justice Clint Bolick said he agrees that, given the facts of this case, Suzan is entitled to be seen as the boy’s legal parent in the pending divorce case. But he declined to conclude that the paternity statutes as written are unconstitutional and said there is no basis for the court to extend its reach to same-sex marriages.