PHOENIX — Saying all marriages are created equal, the Arizona Supreme Court ruled Tuesday that the wife of a gay woman who has given birth is entitled to the same parental rights as any husband would be.
Chief Justice Scott Bales, writing for the majority, acknowledged that Arizona laws dealing with presumption of paternity use terms like “father,” “he” and “man.” Those laws say the husband in a marriage is presumed to be the parent of any child born within 10 months of a marriage.
He also conceded that Tucsonan Suzan McLaughlin, who sued over parental rights, could not possibly be biologically related to the child born in 2010 to Kimberly McLaughlin, to whom she was legally married at the time.
But Bales said that’s irrelevant after the 2015 U.S. Supreme Court ruling that states cannot limit marriage to one man and one woman. The U.S. high court said same-sex couples are entitled to civil marriage “on the same terms and conditions as opposite-sex couples.”
Tuesday’s ruling also undermines arguments by some foes of same-sex marriage that the 2015 ruling allows nothing more than marriages and does not void other laws that provide disparate treatment.
Bales said the U.S. Supreme Court’s decision “will require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.” That includes taxation, property rights, hospital access, adoption rights and more.
“It would be inconsistent ... to conclude that same-sex couples can legally marry but states can deny them the same benefits of marriage afforded opposite-sex couples,” Bales wrote.
The chief justice said those laws could be reviewed — and voided — by courts on a piecemeal basis, as those denied equal rights file suit. But he said it would be better for the governor and Arizona lawmakers to repeal the rules and laws that discriminate.
The Legislature “can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires — namely, the same benefits afforded couples in opposite-sex marriages,” Bales wrote.
“We will review the decision,” said Daniel Scarpinato, press aide to Republican Gov. Doug Ducey.
House Speaker J.D. Mesnard, R-Chandler, said he appreciates the justices saying it is up to the Legislature to establish policy.
“But at this point I really don’t know what we will do,” Mesnard said. He said it may be preferable to let individual cases make their way through the courts rather than “open up the whole statute” to look for laws that could be considered discriminatory.
That’s also the assessment of Senate President Steve Yarbrough, R-Chandler. “Whether we choose a massive rewrite of our law or allow real, specific fact situations and disputes to be resolved by the courts is a question that requires careful analysis,” he said.
Court records show that Kimberly and Suzan McLaughlin, legally married in California in 2008, agreed to have a child through artificial insemination using an anonymous sperm donor.
Kimberly became pregnant in 2010. The couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician. When he was nearly 2, Kimberly moved out, taking him with her and cutting off his contact with Suzan.
Suzan filed for divorce and sought parenting time, citing the law that says the husband is the presumed parent of a child born within 10 months of a marriage. When a trial judge agreed to let the case proceed, Kimberly appealed, saying the law applies only when the other spouse is a man.
But Bales said applying the law in a gender-specific fashion in the wake of the U.S. Supreme Court decision violates the Equal Protection Amendment of the U.S. Constitution.
“Denying same-sex couples the same legal treatment in marriage and all the benefits afforded opposite-sex couples works a grave and continuing harm on gays and lesbians in various ways — demeaning them, humiliating and stigmatizing their children and family units, and teaching society that they are inferior in important respects,” the Arizona chief justice said.
Writing separately, Justice Clint Bolick said he agrees that, given the facts of this case, Suzan McLaughlin is entitled to be seen as the boy’s legal parent in the pending divorce case. But he declined to conclude that the paternity laws as written are unconstitutional and said there is no basis for the court to extend its reach to same-sex marriages.
Arizona had a now-overturned 2008 voter-approved ban on same-sex marriage.