In another reminder, as the fag ends of Pride get scattered to the winds, of Why Elections Matter, the Supremes said it was unconstitutional for Arkansas to keep one same sex parent off a baby’s birth certificate just because one of them is not a biological parent. On the losing side of the 6-3 per curiam (i.e. unanimous) decision in Pavan v. Smith was newly installed Neil Gorsuch. “It does not violate equal protection to acknowledge basic biological truths,” wrote the Arkansas Supreme Court months ago.
To be fair to Justice Gorsuch, he slips into the mantle of reasonableness with no fuss – he isn’t yet the late Antonin Scalia hurling spit-covered thunderbolts:
To be sure, Obergefell addressed the question whether a State must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question whether §20–18–401 of the Arkansas Code, or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell – like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed.
Did you notice he or his law clerks used contractions? Damn. Elsewhere in his brief opinion, joined by fellow dissenters Justices Samuel Alito and Clarence Thomas, Gorsuch wonders if “the strong medicine of summary reversal” is appropriate in a state that already allows “the female spouse of the birth mother” and adoptive parents are eligible for birth certificate placement. Obergefell isn’t a consideration, Gorsuch insists. But why dissent just to complain that Arkansas was too harshly treated?