NATHANIEL SMITH, MD, MPH, DIRECTOR OF THE ARKANSAS DEPARTMENT OF HEALTH, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE APPELLANT
MARISA N. PAVAN AND TERRAH D. PAVAN, INDIVIDUALLY, AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF T.R.P., A MINOR CHILD; LEIGH D.W. JACOBS AND JANA S. JACOBS, INDIVIDUALLY, AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF F.D.J., A MINOR CHILD; COURTNEY M. KASSEL AND KELLY L. SCOTT, INDIVIDUALLY, AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF A.G.S., A MINOR CHILD APPELLEES
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-15-3153]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
Rutledge, Att'y Gen., by: Monty V. Baugh, Deputy
Att'y Gen., for appellant.
K. Maples, for appellees.
F. WYNNE, ASSOCIATE JUSTICE.
case is before us once again after the Supreme Court of the
United States granted the appellees' petition for a writ
of certiorari, reversed the judgment of this court, and
remanded for "further proceedings not inconsistent
with" the opinion of the Court. Pavan v. Smith,
137 S.Ct. 2075 (2017) (per curiam). The Supreme Court held
that pursuant to Obergefell v. Hodges, 576 U.S. ___,
135 S.Ct. 2584 (2015), Arkansas's birth-certificate law,
Arkansas Code Annotated section 20-18-401 (Repl. 2014), is
unconstitutional to the extent it treats similarly-situated
same-sex couples differently from opposite-sex couples. The
parties have now filed supplemental briefs with this court.
We take this opportunity to reject appellant's
interpretation of the United States Supreme Court's
opinion and the suggestion that a gender-neutral reading of
Arkansas Code Annotated section 9-10-201(a) (the
assisted-reproduction statute) would adequately address the
constitutional infirmity found. 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." Cox v. Comm'rs of Maynard Fire Imp.
Dist. No. 1, 287 Ark. 173, 176, 697 S.W.2d 104, 106
(1985). 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,
as required under Pavan v. Smith, supra.
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 an impermissible rewriting of the
statutes. See McLaughlin v. Jones in & for Cty. of
Pima, 401 P.3d 492 (Ariz. 2017) (extending the benefit
of Arizona's statutory marital-paternity presumption to
similarly situated female spouses rather than nullifying the
we reverse the circuit court's order, and we remand for
entry of a final judgment consistent with the mandate of the
Supreme Court of the United States.
Womack, J., concurs.
A. Womack, Justice, concurring.
with the majority that we must reverse and remand this case
to the circuit court following the Supreme Court's
decision. However, I would additionally require the circuit
court to conduct a hearing and make findings of fact
regarding how, specifically, the law treats similarly
situated same-sex couples differently than opposite-sex
couples and to make specific findings as to how those couples
are similarly situated for the purpose of the application of
the statutes in question. While the majority of this court
remands to the circuit court only for an order consistent
with the Supreme Court's ruling, the Supreme Court's
majority on remand clearly calls for "further
proceedings." Only after conducting such further
proceedings and making the necessary findings of fact should
the circuit court then issue an order, based on those
findings. Said order should determine the constitutionality
of the relevant statutes in a way that both comports with the
law and is narrowly tailored so as to balance the legislative
presumption in favor of constitutionality with the equal
treatment of law under the statutes and should have limited
application to parties and circumstances that are, in fact,
Equal Protection Clause of the Constitution prohibits a
government actor from treating similarly situated people
dissimilarly. See Brown v. State, 2015 Ark. 16, at
6, 454 S.W.3d 226, 231; City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). There is no doubt
that the position of the parties has drastically changed
since this case was originally presented to the circuit court
below. See Smith v. Pavan, 2016 Ark. 437, 505 S.W.3d
169 (Wood, J., concurring in part and dissenting in part).
The appellant even avers in its brief that the department of
health has since revised its policy regarding birth
certificates for assisted-reproduction situations. As noted
before, that information is not in the record before us.
Additionally, despite the cornerstone that the Equal
Protection Clause prohibits dissimilar treatment of similarly
situated individuals, there is no analysis of that rule in
the circuit court's order; nor is there a specific
analysis regarding how the classification survives the
appropriate level of scrutiny. See Klinger v. Dep't
of Corr., 31 F.3d 727, 730 (8th Cir. 1994) Therefore, it
would be not only prudent, but indeed mandatory according to
the Supreme Court's ruling, to order the circuit court to
conduct a hearing and make specific findings of fact as
beyond determining the constitutionality of various portions
of the challenged statutes, it is not the role of this or any
other court to attempt to fashion a remedy that breaches into
the realm of policy making. The role of determining policy
belongs to the people through their elected representatives
in the legislature. Once the scope of constitutional
application is finally determined, it is incumbent upon the
General Assembly to re-engage and to establish the state of
the law going forward within those boundaries.
R. Baker, Justice, dissenting.
dissent from the majority's opinion because I would not
remand this matter to the circuit court. I would simply
vacate our previous opinion and issue a substituted opinion
reversing and dismissing the circuit court's order which
impermissibly rewrote the statute. Further, based on
Pavan v. Smith, 137 S.Ct. 2075 (2017) (per curiam)
and the State's concession that Ark. Code Ann. §
9-10-201 is unconstitutional, I would declare Ark. Code Ann.
§§ 9-10-201(a) and 20-18-401(f)(1)
unconstitutional, stricken, and void. We should not remand
this matter to the circuit court for an order consistent with
the majority's opinion. Moreover, despite the State's
urging to take up a pen and set off through the Arkansas Code
replacing the words "husband" and "wife"
with "spouse" or other gender-neutral alternatives,
the truth is that that pen does not belong to us, nor does it
belong to the circuit court. The pen belongs to the
legislature and it is their duty to determine the best way to
address the constitutional infirmity in these two statutes.
We cannot fashion the remedy, the authority to do so rests
solely with the legislature. Thus, 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.