LITTLE ROCK, Ark. (CN) – The Arkansas Supreme Court agreed Thursday that the state should allow same-sex couples to be listed on their child’s birth certificates, but stopped short of changing a state law that the nation’s highest court found unconstitutional this year.
In June, the U.S. Supreme Court ruled in favor of three lesbian couples in Arkansas who argued that its 2015 decision in Obergefell v Hodges essentially voided the state law requiring that birth certificates only list the child’s biological parents.
The December ruling found that Pulaski County Circuit Court Judge Tim Fox’s decision requiring the state to include both same-sex parents on their child’s birth certificate was an impermissible rewrite of the statute that needs revision.
“Extending the benefit of the statutes at issue to same-sex spouses will implement the mandate of the Supreme Court of the United States without impermissible rewriting of the statutes,” Justice Robin Wynne wrote for the majority in Thursday’s decision.
“The birth-certificate law must be addressed, but we cannot simply affirm the circuit court’s previous order, which impermissibly rewrote the statutory scheme. An order rewriting a statute ‘amounts to a judicial intrusion upon the legislative prerogative and violates the constitutional doctrine of separation of powers,’” the ruling states. “On remand, the circuit court should award declaratory and injunctive relief as necessary to ensure that same-sex spouses are afforded the same right as opposite-sex spouses to be listed on a child’s birth certificate in Arkansas.”
A spokesman for Arkansas Attorney General Leslie Rutledge said the attorney general would work to ensure the latest ruling is properly implemented “with as minimal intrusion as possible on the powers of the legislative branch.”
Attorneys for the plaintiffs say the absent name on birth certificates complicates parents’ ability to consent to emergency medical care, enroll children in school or recreational sports, travel abroad and generally care for their children.
In a concurring opinion, Justice Shawn Womack wrote that he would have required the lower court to conduct an additional hearing.
However, Justice Karen Baker said in a dissenting opinion that she would have liked to have seen the Arkansas Supreme Court simply declare the birth-certificate law “unconstitutional, stricken and void.”
“There is no need to remand this matter to the circuit court, which is in no better position and has no more authority than we do to rewrite these statutes. To do so only delays this matter further,” Baker wrote.
Baker was joined in her dissent by Justices Courtney Hudson Goodson and Josephine Hart.
Justices John Kemp and Rhonda Wood joined Wynne and Womack in the majority.