Smith v. Pavan, 2017 Ark. 284

Background

Appellees (same-sex spouses and parents) challenged Arkansas birth-certificate statutes after Obergefell, arguing the statutes treated similarly situated same-sex couples differently from opposite-sex couples.
The U.S. Supreme Court granted certiorari, reversed this court, and remanded in light of Obergefell in Pavan v. Smith.
The Arkansas statutes at issue included Ark. Code Ann. §§ 20-18-401(e),(f) and 20-18-406(a)(2) and also § 9-10-201 (assisted-reproduction presumption).
The State conceded some constitutional problems and argued for interpretive or limited remedies (e.g., gender-neutral readings of the assisted-reproduction statute).
The Arkansas Supreme Court majority held the birth-certificate law must be addressed to afford same-sex spouses the same right as opposite-sex spouses to be listed on a child’s birth certificate, but refused to rewrite the statutes itself and remanded for relief consistent with the U.S. Supreme Court’s mandate.
A concurrence urged the circuit court to hold evidentiary hearings and make factual findings about how similarly situated couples are treated; a dissent would have declared the specific statutory provisions unconstitutional and stricken them without remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Arkansas birth-certificate law violates Equal Protection by treating same-sex spouses differently	Pavan/parents: statutes deny same-sex spouses the same right to be listed as parents, violating Obergefell and Equal Protection	State: disputes scope; suggests administrative policy changes or gender-neutral statutory interpretation could cure defects	Court: Law is unconstitutional as applied; must ensure same-sex spouses receive same birth-certificate rights per Pavan; remand for appropriate declaratory/injunctive relief.
Whether a gender-neutral reading of the assisted-reproduction statute (§ 9-10-201(a)) cures the constitutional problem	Plaintiffs: statutory scheme must be applied to treat same-sex spouses as similarly situated; remedy should grant same benefit	State: proposed a gender-neutral reading of § 9-10-201(a) to avoid striking statutes	Court: Rejects that the gender-neutral reading alone resolves the constitutional issue; birth-certificate statute itself must be addressed and relief tailored without judicially rewriting statutes.
Proper remedial scope — should court rewrite statutes or defer to legislature	Plaintiffs: seek effective relief to secure equal treatment	State: urges courts not to legislate and to defer to legislature or use narrow interpretations	Court: Courts cannot rewrite statutes (separation of powers); must extend statutory benefits to same-sex spouses by declaratory/injunctive relief but leave substantive redrafting to legislature.
Whether to vacate and strike the challenged statutory provisions or remand for further proceedings	Plaintiffs: want relief enforcing equal treatment	State: concedes some provisions unconstitutional; argues remedy should be limited	Majority: Reverses and remands for judgment consistent with U.S. Supreme Court; refuses to strike statutes outright. Dissent: would strike §§ 9-10-201(a) and 20-18-401(f)(1) as unconstitutional and void.

Key Cases Cited

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (same-sex couples have fundamental right to marry; marriage-based legal benefits must be equally available)
Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curiam) (applying Obergefell, state birth-certificate laws that treat same-sex couples differently are unconstitutional)
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (Equal Protection principle: similarly situated persons must be treated alike)
Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir. 1994) (analysis required for levels of scrutiny in equal-protection challenges)
McLaughlin v. Jones in & for Cty. of Pima, 401 P.3d 492 (Ariz. 2017) (state court extended marital-paternity presumption to similarly situated female spouses rather than nullifying statute)