Victories Like This Week’s Big Arizona Gay Parenting Ruling are at Risk if We Lose SCOTUS Justice Anthony Kennedy

The Supreme Court of Arizona recently held that a statute granting legal parental rights to a man if his wife gives birth to a child during their marriage also applies to women in same-sex marriages.

In October 2008, Kimberly and Suzan (the parties in the case) married in California. In 2010, both started the process of artificial insemination. Suzan attempted to conceive first but was unsuccessful. Kimberly tried next and became pregnant. During the pregnancy, Kimberly and Suzan moved to Arizona and in February 2011, they entered a joint parenting agreement declaring Suzan a “co-parent” of the child. This contractual agreement meant that Kimberly and Suzan both intended that Suzan would be the co-parent to Kimberly’s biological child, and if the relationship ever ended, the parental relationship would live on.

In June 2011, Kimberly gave birth to a baby boy, E. When E. was around two years old, Kimberly and Suzan’s relationship ended. Kimberly left their mutual home, taking E and cutting off any contact with Suzan.

In 2013, Suzan filed for divorce, and petitioned for legal-decision-making and parenting time in loco parentis (granting Suzan, the non-biological parent, the legal rights and responsibilities of a biological parent). In her filings, she argued that Arizona’s statute, which explicitly only referred to the rights of men when their female spouses gave birth, was unconstitutional. By its heternormative terms, it denied the presumptive parental right to same-sex married couples, which were guaranteed under especially after the landmark case, Obergefell v. Hodges.

The court extended the benefit in the statute to same-sex couples, reasoning that the statute was meant to ensure that children would be born with two supporting parents. Therefore, denying automatic co-parentage to a same-sex spouse would go against the legislature’s intent and the explicit language of Obergefell.

Because Obergefell granted same-sex couples the right to marry, the court reasoned that not only do same-sex couples have the right to marry, but they also gain the benefits that marriage entails—including, the ability to file taxes together, health proxy listing, and equal-decision making for a child that both partners help to raise. It would make no sense to grant couples the right to marry, but leave them bereft of any benefits of marriage. The Supreme Court made it clear in Obergefell that the marriage right guarantees not just a piece of paper that says you’re married, but also “[t]he constellation of benefits the States have linked to marriage” along with it.

This type of decision already has the support of a majority of the Supreme Court. It does not, however, have the support of Neil Gorsuch, Donald Trump’s selection who filled the seat that should have gone to Merrick Garland. If Justice Kennedy retires at the end of this coming SCOTUS term, as he is rumored to, these types of pro-equality decisions will be at risk.

*This post was co-written by Maverick James, New York Law School Class of 2019.

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