Originally Published: February 27, 2018 6:01 a.m.
PHOENIX — 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, to who she was legally married at the time of the child’s birth. The justices provided no reason for their decision.
Monday’s 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’s attorney, said her client is “over the moon.’’
“Now that the last impediment is gone, because obviously it can’t be appealed any more, we now are confident that we can go back in (to court) and settle this short of trial,’’ she said. Work said that Suzan has been granted visitation on a regular basis since last year.
But Monday’s order isn’t just about Suzan. 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, Monday’s 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 state’s 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 “on the same terms and conditions as opposite-sex couples.’’
A subsequent U.S. Supreme Court ruling spells out that same-sex couples must have access to the “constellation of benefits that the state has linked to marriage.’’
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 — it was behind the 2008 ballot measure defining marriage in Arizona as solely between one man and one woman — said she will continue to push for and defend laws providing differential treatment for same-sex couples.
“I believe there are policy areas that should be left to the state legislature to determine,’’ 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 “the biological diversity necessary to create them in the first instance.’’
What Monday’s order by the U.S. Supreme Court not to intercede does do is leave in place that Arizona Supreme Court ruling that biology has its limit -- 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 which 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 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 boy’s birth in 2011, Suzan stayed home and cared for him while Kimberly worked as a physician.
When the boy was nearly 2, Kimberly moved out, taking him with her and cutting off his contact with Suzan.
In filing for divorce, Suzan sought parenting time, citing that Arizona law about presumption of parentage. Kimberly has fought that at every step, arguing that legal presumption, by its plain wording, applies only when the other spouse is a man.
Kimberly’s 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 -- 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 “paternity’’ of a child born during a marriage.
Berkshire also argued that the Arizona Supreme Court acted illegally last year in ruling for Suzan.
He said the state justices effectively adopted a new statute dealing with now paternity disputes are handled in cases of artificial insemination. Berkshire while there are such laws in some states, none has ever been enacted in Arizona.