The U.S. Supreme Court today refused without comment to take up a child custody case involving two gay parents.
Without comment the justices rejected a bid by Kimberly McLaughlin to deny shared custody of her biological child with Suzan McLaughlin, who she was legally married to at the time of the child’s birth.
Keith Berkshire, Kimberly McLaughlin’s attorney, acknowledged to the justices that two prior rulings had said that all marriages are entitled to the same benefits.
But he argued that the law still needs to understand that there are biological differences between men and women. More to the point, Berkshire said there is a basic fact that the justices cannot ignore: The child cannot possibly be biologically related to Suzan McLaughlin.
The Arizona Supreme Court in September ruled that parental rights extend to gay spouses, citing the U.S. Supreme Court’s Obergefell marriage ruling.
Chief Justice Scott Bales (pictured, above), 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.”
Wrote The National Center for Lesbian Rights in a press release reacting to the September ruling:
Today, the National Center for Lesbian Rights (NCLR) won the Arizona Supreme Court case, McLaughlin v. McLaughlin, which ruled that a woman was the legal parent of the child she and her same-sex spouse conceived through assisted reproduction during their marriage. As the Arizona Supreme Court recognized, the U.S. Supreme Court rulings in Obergefell v. Hodges and Pavan v. Smith require states to treat married same-sex parents and married different-sex parents equally under the law. The Arizona Supreme Court explained, “It would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.”
Suzan McLaughlin and Kimberly McLaughlin were a married lesbian couple who had a child in 2011 using an anonymous sperm donor. After separating in 2013, Kimberly stopped allowing Suzan to see their child, and Suzan filed a legal action to be recognized as a parent. Both the Arizona Court of Appeals and the trial court held that Suzan should indeed be recognized as a legal parent to her child. NCLR and Arizona attorney Claudia Work represented Suzan. Additionally, Professor Barbara Atwood and the Child and Family Law Clinic at the University of Arizona Rogers College of Law, as well as 23 Arizona family law attorneys and the ACLU and ACLU of Arizona, filed amicus briefs in support of Suzan.
Since the 2015 U.S. Supreme Court marriage equality decision, Obergefell v. Hodges, numerous cases have recognized that married same-sex parents and married different-sex parents must be treated equally under the law. In June 2017, the U.S. Supreme Court held in Pavan v. Smith, another National Center for Lesbian Rights case, that Obergefell required states to treat married same-sex parents and married different-sex parents equally. The Arizona Supreme Court’s decision in McLaughlin follows this settled law and should be instructive to other states across the country considering this issue.