Cross-posted from Dorf on Law

In Pavan v. Smith, the SCOTUS issued a per curiam opinion reversing the Arkansas Supreme Court's decision upholding an Arkansas statutory scheme under which the husbands of women who give birth are listed as fathers on the children's birth certificates but the wives of such women in same-sex marriages (SSM) are not. The reversal relied on the 2015 recognition of a constitutional right to SSM in Obergefell v. Hodges. Because only three justices (Gorsuch, Thomas, and Alito) were recorded as dissenting, speculation immediately ensued about whether there were six votes for the result. If so, that would mean that Chief Justice Roberts, who dissented in Obergefell, has accepted the ruling as settled law.

However, as Joshua Matz explains on Take Care, we do not know whether the per curiam garnered five or six votes, because a justice can dissent from a summary action without publicly registering a dissent. I agree with Joshua that Pavan does not tell us much about where the Chief Justice now stands. For what it is worth, I think the odds that he would cast a fifth vote to overrule Obergefell are rather low.

The gist of the Roberts dissent in Obergefell was that the legal status of SSM should be left to the American people, but with support for the institution trending up, the issue could well look like harmless error to him--much in the way that many judicial conservatives who think the Constitution contains no right to contraception nevertheless do not want to spend their energy trying to overrule Griswold v. Connecticut. Thus, even were one of the members of the Obergefell majority to leave the Court while the GOP continues to control the presidency and the Senate, SSM would very likely remain legal throughout the land. (I have much less confidence about the continued vitality of a constitutional right to abortion under such circumstances.)

So much for the big picture. The Pavan case itself presents a puzzle, because the per curiam characterizes the state of the law in Arkansas very differently from the characterization that appears in the dissent. Who's right? (Spoiler alert: The per curiam is right and the dissent is wrong.)

The majority's argument is pretty straightforward. It goes like this:

(1) Obergefell itself held that states not only must recognize SSM but must provide to same-sex couples what the Obergefell Court called "the constellation of benefits that the States have linked to marriage," including those regarding "birth and death certificates.

(2) That was not mere dicta. As the Court puts it in Pavan: "Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates."

(3) Arkansas argues that its scheme does not discriminate against same-sex couples but simply serves other state interests related to biological parenthood, such as tracking genetic diseases, but the fact that Arkansas lists husbands of women who conceive via anonymous sperm donors as fathers on birth certificates belies this characterization.

How does the dissent respond? Justice Gorsuch begins by saying--correctly but irrelevantly--that summary reversal should be reserved for cases of clear error. He contends that the question whether Obergefell extends to birth certificates is an open one that should be resolved by the SCOTUS, if at all, only after plenary consideration. Yet as the majority's points (1) and (2) make clear, this is just false. Obergefell resolved the birth certificate question.

So why does Justice Gorsuch think otherwise? He says that Obergefell did not address a state system in which the differentiation between same-sex and opposite-sex couples on birth certificates is an artifact of a system of biological registration, as in Arkansas. Yet that contradicts the majority's point (3): Arkansas does not have a system of biological registration, as its treatment of husbands whose wives conceive via anonymous sperm donation indicates; they are listed on birth certificates, whereas wives of women who conceive that way are not.

To overcome that difference, Justice Gorsuch echoes an argument presented by the Arkansas AG in her opp cert: He says that the Arkansas provision deeming husbands fathers for birth certificates even where their wives conceived via anonymous sperm donations is a distinct exception to the overall Arkansas statutory scheme, and the plaintiffs did not challenge this distinct exception. The State brief says that "Petitioners challenged the wrong provision of Arkansas law."

Is that right? In a word, no.

The plaintiffs challenged the basic birth certificate provision in Arkansas, which says quite clearly: "If the mother was married at the time of either conception or birth or between conception and birth the name of the husband shall be entered on the certificate as the father of the child." It contains two exceptions--(a) where there has been a judicial decree that the biological father is not the husband; and (b) where the the mother, her husband, and the biological father all swear that the husband is not the biological father--but neither of these exceptions is the default. For opposite-sex couples, the default is that the mother's husband is listed as the father on the birth certificate. For same-sex couples, the default is that mother's wife is not listed. That is facial discrimination in violation of Obergefell.

According to the Arkansas AG, the plaintiffs should have challenged a wholly different provision of Arkansas law that says that a child born to a woman who uses artificial insemination shall be presumed to be the child of the woman's husband, but says nothing about the mother's wife in the case of a same-sex couple. The AG conceded in both the Arkansas Supreme Court and in its opp cert that this provision is unconstitutional. Weirdly, the Arkansas Supreme Court said that the AG had "failed to preserve this issue for appeal," even though the AG was conceding a point, rather than making one affirmatively for the state's case. But that oddity aside, the Arkansas AG and the SCOTUS dissenters are wrong in their reliance on the artificial insemination provision.

Contrary to how Justice Gorsuch characterizes the artificial insemination provision, it is not an "exception" to the basic birth certificate provision. It's in a wholly different title of the Arkansas Code. And, as the petitioners pointed out in their reply brief, the artificial insemination provision does not by its language affect birth certificates. This does not appear to have been a legislative oversight, because the very same Arkansas code section does authorize judicial action to issue a substitute birth certificate in cases of surrogacy. By including that sub-provision for surrogacy but no equivalent for artificial insemination, the Arkansas legislature apparently indicated that substitute birth certificates might not be available for the spouse of a woman who conceived through artificial insemination using a sperm donor--whether that spouse is a husband or a wife. Taking such a textualist approach, the dissenting justices--including uber-textualists Gorsuch and Thomas--would have seen the artificial insemination provision as completely irrelevant to the case.

But even assuming that the Arkansas AG is right that the artificial insemination provision can be the basis for a substitute birth certificate, AND that this provision is invalid insofar as it discriminates against same-sex couples, AND that the proper remedy for that unconstitutionality is to expand the artificial insemination provision to cover same-sex spouses rather than to eliminate it, AND that Justice Gorsuch was therefore right to accept the Arkansas AG's representations, that STILL would not cure the constitutional defect in the provision that the plaintiffs actually--and correctly--challenged: The names of husbands of women who conceive through sperm donors would still appear by default on their children's birth certificates, whereas the names of wives of women who conceive that way would not appear on their children's birth certificates unless and until they obtained a substituted birth certificate by a court order.

The requirement that same-sex couples jump through those extra hoops is itself a violation of Obergefell's call for equal access to the constellation of benefits that accompany marriage. The per curiam got it right.

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