On the heels of the United States Supreme Court’s decision in the Obergefell v. Hodges, 576 U.S. , 135 S. Ct. 2584 (2015), which effectively abolished prohibitions against same-sex marriage in the United States, state supreme courts around the country have been grappling with the legal implications of that ruling on state statutes that are not explicitly related to same-sex marriage, but for which one can argue an indirect impact on the “statutory benefits” received by married couples. In Smith v. Pavan, 2016 Ark. 437 (2016), the Arkansas Supreme Court recently resolved one such issue, but not without an unconventional dissent penned by the Honorable Howard W. Brill, then the Chief Justice of the Arkansas Supreme Court, in which he quotes Bob Dylan’s well known protest anthem, “The Times They Are A-Changin’” and advocates for a broader application of the Obergefell opinion in testing the constitutionality of Arkansas statutes.
In the Pavan case, three same-sex couples challenged the Director of the Arkansas Department of Health’s compliance with various Arkansas statutes limiting the individuals that can be included on a child’s birth certificate to the biological parents, with some specific statutory exceptions. In an attempt to apply the Obergefell opinion to Pavan, the trial court concluded that one of the birth certificate statutes was unconstitutional and creatively interpreted the other in such a manner as to avoid constitutional scrutiny. In the same ruling, the trial court held that a prior circuit court case had previously granted injunctive relief regarding birth certificates and, therefore, the doctrine of res judicata prevented the Director from refusing to issue amended birth certificates to the plaintiffs in the Pavan lawsuit.
The Arkansas Supreme Court found that res judicata was inapplicable in the Pavan case, because the orders issued in the prior court case did not address the specific birth certificate issues contested in the Pavan case. In addition, the Arkansas Supreme Court held that the United States Supreme Court’s Obergefell opinion “does not impact [the Arkansas statutes] governing the issuance of birth certificates and that these statutes pass constitutional muster.” Pavan, 2016 Ark. at *10. In explaining the constitutionality of the statutes, the Arkansas Supreme Court concluded that the statutes primarily relate to the relationship of the biological mother and biological father to the child, rather than the marital relationship of the husband and wife, and that it is this information that is required to be truthfully recorded on the child’s birth certificate. Id. at *12-14. Likewise, the Arkansas Supreme Court determined that the Arkansas Department of Heath has an important governmental objective in ensuring the accuracy of the information included on birth certificates – tracing public-health trends and providing critial assistance to an individual’s identification of personal health issues and genetic conditions.” Id. at *15-18.
After considering the arguments of the parties, the Arkansas Supreme Court held that “[it could not] say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.” Id. at *17. Moreover, the Arkansas Supreme Court found there was no equal protection violations, noting that:
Due to the fact that he strongly disagreed with the Arkansas Supreme Court’s refusal to apply Obergefell in the Pavan case, Chief Justice Brill issued a spirited dissent. Chief Justice Brill is a respected educator, author and jurist. In addition to his reputation for well-reasoned legal analysis, he has a nearly legendary reputation in the Arkansas legal community for incorporating cultural references within his presentation of legal thought. He struck again in the Pavan case, beginning his dissent with the immortal words of the folk icon and recent Nobel laureate, Bob Dylan:
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’
. . . .
Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it is ragin’
In his dissent, the Chief Justice argues that “[t]he logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an oppositesex [sic] married couple.” Pavan, 2016 Ark. at *23 (declaring the right to a birth certificate is a “corollary to the right to a marriage license”). He also explains that “[r]egardless of personal values and regardless of a belief that the United States Supreme Court may have wrongfully decided a legal issue, all are bound by the law of the land.” Finally, the Chief Justice admonishes all three branches of Arkansas’ government “to heed the call,” in adapting to same-sex marriage, because “[t]he times are indeed a-changin’.”
While his dissent is unusual in its form and not binding as precedent, it certainly is memorable.