Obergefell v. Hodges proscribes disparate treatment. A State may not exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Indeed, in listing those terms and conditions—the rights, benefits, and responsibilities to which same-sex couples, no less than opposite-sex couples, must have access—the U.S. Supreme Court expressly identified birth and death certificates.
The petitioners here are two married same-sex couples who conceived children through anonymous sperm donation. Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents—Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother’s name.
Did the State of Arkansas violate the Constitution by disallowing both same-sex parents’ names to be listed on a child’s birth certificate?
The court held that Ark. Code Ann. § 20-18-401 (2014), which required the name of a mother's male spouse to appear on a child's birth certificate, but which did not include the female spouses of women who gave birth in the State, violated the mandate of Obergefell, which provided same-sex couples the constellation of benefits that the States had linked to marriage; Under § 20-18-401, same-sex parents in Arkansas lacked the same right as opposite-sex parents to be listed on a child's birth certificate, and these certificates were more than a mere marker of biological relationships because the State used birth certificates to give married parents a form of legal recognition that was not available to unmarried parents, and Obergefell proscribed such disparate treatment.