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'Birth Certificates Should be About Biology,' Says Arkansas Lawmaker Challenging Hutchinson Order

Arkansas Gov. Asa Hutchinson speaks to reporters at the State Capitol on Oct. 17, 2017, in Little Rock. (AP Photo/Andrew DeMillo)

Arkansas Gov. Asa Hutchinson (R) settled the matter in December of whether same-sex married couples could have both of their names printed on the birth certificates of children conceived with the help of a surrogate.

He ordered state officials to follow the instructions of a U.S. Supreme Court decision and include both parents’ names – even though in the case of a lesbian couple neither could be the biological father, and when two men marry neither can give birth.

Everyone but state Rep. Bob Ballinger (R) seemed to be satisfied. Ballinger said he is going to introduce legislation to stop Hutchinson’s directive.

“It’s pretty simple, birth certificates should be about biology and the law,” he tweeted to a Twitter follower who told Ballinger, “You already lost in court once. Just fix the damn form and move on.”

Ballinger, who is running for the Arkansas state Senate in November, wants to get around the allegations of discrimination against same-sex couples with legislation that would force mothers in opposite-sex and same-sex marriages to identify the fathers of their children.

“Mother is X, Father is Y, and no presumptions. It should be about birth parents, biology, genetics, and that’s it,” Ballinger tweeted in another message.

To win this debate, Ballinger will have to convince his legislative colleagues the majority of U.S. Supreme Court justices were wrong when they found Arkansas’ birth certificate rules regarding parental names were unconstitutional.

Two married same-sex couples who conceived children through anonymous sperm donors sued the director of the Arkansas Department of Health, which allowed only the birth mother’s name on a birth certificate.

The plaintiffs argued the Arkansas birth certificate policy was unconstitutional. A trial court judge agreed. The state Supreme Court overturned the decision by the lower court judge. However, the U.S. Supreme Court dumped that ruling when it found Arkansas had set up birth certificates as more than a “mere marker of biological relationships” and because of that, and the high court’s legalization of same-sex marriage, the state was in the wrong.

“The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”

Circuit Court Judge Tim Fox ordered Arkansas to stop issuing birth certificates until the state complied with the Supreme Court ruling.

Gov. Hutchinson, after reading the order, told state workers to begin following the Supreme Court’s order. Hutchinson directed married same-sex couples be treated the same as opposite-sex couples. Female spouses of birth mothers will have their names listed on a birth certificate in the same space where a male spouse would have his name listed.

“Following this directive will comply with the constitutional directives set forth [by the U.S. Supreme Court and the Arkansas Supreme Court] and therefore complies with the injunction issued by Judge Fox,” Hutchinson wrote.

Ballinger said his proposal would allow Arkansas to get around the question of constitutionality while still forcing all couples to name the father of their children.

Arkansas Times columnist David Ramsey called Ballinger’s effort a “quixotic fixation,” which “is truly something to behold.”

“It is worth noting that Ballinger’s proposal would create additional bureaucratic hassles for married couples who used a sperm donor other than the husband,” Ramsey wrote. “Ballinger, ostensibly a small government conservative, would rather add hassles for opposite-sex couples than remove them for same-sex couples.”

Ramsey wondered whether Ballinger’s plan would be constitutional.

“I don’t want to punish anyone,” Ballinger tweeted. “When you say something is ‘unconstitutional’ you should be able to cite the precedent for that claim.”

Supreme Court Justice Neil Gorsuch doesn’t see a problem with the constitutionality of the way Arkansas used to list parents’ names on birth certificates.

Writing for the dissenting justices, including Clarence Thomas and Samuel Alito, Gorsuch argued “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”

Betsy Finocchi told KNWA that the state’s refusal to include the names of both legal parents on a birth certificate raised problems beyond the concept of constitutionality.

“Without being on the birth certificate or having a court order, you’re not a legal parent of that child,” Finocchi said. “If something happened to that parent, if they got arrested, if they were in an accident, the state could come take the child, even if you’re its biological parent.”

But to Ballinger, this is as clear as the birds and the bees.

“A birth certificate is supposed to list mother and father,” Ballinger told KNWA. “Biologically that is a man and a woman. Always has been and, unless there is some strange development in science, it always will be. “