KIMBERLY McLAUGHLIN, Petitioner, v. THE HONORABLE LORI B. JONES, JUDGE PRO TEMPORE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent Judge, SUZAN McLAUGHLIN, Real Party in Interest.
No. CV-16-0266-PR
SUPREME COURT OF THE STATE OF ARIZONA
September 19, 2017
243 Ariz. 29 | 401 P.3d 492
Appeal from the Superior Court in Pima County, The Honorable Lori B. Jones, Judge Pro Tempore, No. DC20130015, AFFIRMED. Opinion of the Court of Appeals, Division Two, 240 Ariz. 560 (App. 2016), VACATED.
Keith Berkshire (argued), Erica L. Gadberry, Berkshire Law Office PLLC, Phoenix, Attorneys for Kimberly McLaughlin
Shannon Minter (argued), Emily Haan, Catherine Sakimura, National Center for Lesbian Rights, San Francisco, CA; and Claudia D. Work, Campbell Law Group Chartered, Phoenix, Attorneys for Suzan McLaughlin
Barbara A. Atwood, Professor of Law Emerita, Director, Family and Juvenile Law Certificate Program, Paul D. Bennett, Clinical Professor and Director, Child and Family Law Clinic, Negar Katirai, Director, Community Law Group, and Jason Buckner, Natalie Cafasso, and Chris Lloyd, Rule 38(d) Certified Law Students, Child and Family Law Clinic, The University
Leslie Cooper, American Civil Liberties Union Foundation, New York, NY; and Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Arizona
Gregg R. Woodnick, Markus W. Risinger, Woodnick Law PLLC, Phoenix, Attorneys for Amicus Curiae Arizona Family Law Practitioners
CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES BRUTINEL and TIMMER and JUDGE JONES joined*. JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE PELANDER, concurred. JUSTICE BOLICK concurred in part and dissented in part.
CHIEF JUSTICE BALES, opinion of the Court:
¶1 Under
I.
¶2 The facts are not in dispute. In October 2008, Kimberly and Suzan, a same-sex couple, legally married in California. After the couple decided to have a child through artificial insemination, Suzan unsuccessfully attempted to conceive using an anonymous sperm donor. In 2010, Kimberly underwent the same process and became pregnant.
¶4 In June 2011, Kimberly gave birth to a baby boy, E. While Kimberly worked as a physician, Suzan stayed at home to care for E. When E. was almost two years old, Kimberly and Suzan‘s relationship deteriorated to the point that Kimberly moved out of their home, taking E. and cutting off Suzan‘s contact with him.
¶5 Consequently, in 2013, Suzan filed petitions for dissolution and for legal decision-making and parenting time in loco parentis. During litigation, Suzan challenged the constitutionality of Arizona‘s refusal to recognize lawful same-sex marriages performed in other states, and pursuant to
¶6 After the Supreme Court held in Obergefell that the
¶7 Kimberly sought special action review in the court of appeals. That court accepted jurisdiction but denied Kimberly relief, concluding that, under Obergefell,
¶8 After the court of appeals issued its decision, another division of the court reached a contrary result in a different case. See Turner v. Steiner, 242 Ariz. 494 (App. 2017). A divided panel concluded that a female same-sex spouse could not be presumed a legal parent under
¶9 We granted review because the application of
II.
¶10 We review the constitutionality and interpretation of statutes de novo. State v. Stummer, 219 Ariz. 137, 141 ¶ 7 (2008). “[T]he words of a statute are to be given their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended.” State v. Miller, 100 Ariz. 288, 296 (1966).
¶11 Under Arizona law, “[a] man is presumed to be the father of the child if . . . [h]e and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within
A.
¶12 As Kimberly correctly notes, the text of
¶13 However, in the wake of Obergefell, excluding Suzan from the marital paternity presumption violates the
¶14 Denying same-sex couples the right to marry, Obergefell concluded, unjustifiably infringes the fundamental right to marry in violation of the
¶15 Despite Obergefell‘s holding requiring states to provide same sex couples “the same terms and conditions” of marriage, Kimberly urges this Court to interpret Obergefell narrowly. Like the Turner court, she contends that Obergefell only established two points of law: that marriage is a fundamental right the states cannot deny to same-sex couples and that all states must give full faith and credit to same-sex marriages performed in other states. See Turner, 242 Ariz. at 498 ¶ 15. Under this reading, Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage. Id.
¶16 Such a constricted reading, however, is precluded by Obergefell itself and the Supreme Court‘s recent decision in Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curiam). In Obergefell, the Court repeatedly framed both the issue and its holding in terms of whether states can deny same-sex couples the same “right” to marriage afforded opposite-sex couples. See 135 S. Ct. at 2601 (noting that excluding same-sex couples from marriage denies them “the constellation of benefits the States have linked to marriage“); id. at 2602 (noting harms that result from denying same-sex couples the “same legal treatment as opposite-sex couples“); id. at 2604 (noting challenged laws were unequal because “same-sex couples are denied all the benefits afforded to opposite-sex couples“).
¶17 “The Constitution . . . does not permit the State to bar same sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Id. at 2607. Such broad statements reflect that the plaintiffs in Obergefell sought more than just recognition of same-sex marriages. Indeed, two of the plaintiffs were a female same-sex couple who challenged a Michigan law permitting opposite-sex couples, but not them, to both serve
¶18 Pavan, decided after Turner, confirms our interpretation of Obergefell. In Pavan, an Arkansas law generally required that when a married woman gives birth, the name of the mother‘s male spouse appear on the birth certificate, regardless of the male spouse‘s biological relationship to the child. 137 S. Ct. at 2077. The Arkansas Supreme Court concluded that Obergefell did not require the state to similarly list the name of the mother‘s female spouse on the child‘s birth certificate, in part because the state law did not involve the right to same-sex marriage or its recognition by other states. Smith v. Pavan, 505 S.W.3d 169, 180 (Ark. 2016), rev‘d per curiam, 137 S. Ct. 2075 (2017). The United States Supreme Court summarily reversed, stating that such differential treatment of same-sex couples infringed ”Obergefell‘s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.‘” Pavan, 137 S. Ct. at 2077 (quoting Obergefell, 135 S. Ct. at 2601).
¶19 Consistent with Obergefell and Pavan, we must determine whether
¶20 On its face,
¶21 Kimberly counters that
¶22 Like the Turner court, Kimberly errs in relying on Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001). See Turner, 242 Ariz. at 499 ¶ 18. In
¶23 In sum, the presumption of paternity under
B.
¶24 Kimberly argues that the Court cannot interpret
¶25 To place the remedial issue in context, it is useful to review some settled constitutional principles. The United States Supreme Court‘s interpretation of the Constitution is binding on state court judges, just as on other state officers. See Cooper v. Aaron, 358 U.S. 1, 18–19 (1958). When the Constitution conflicts with a statute, the former prevails. Marbury v. Madison, 5 U.S. 137, 178 (1803) (noting “the constitution is superior to any ordinary act of the legislature; [and] the constitution, and not such ordinary act, must govern the case to which they both apply“); The Federalist No. 78 at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). It is no answer to a constitutional violation in a pending case to assert that it could be remedied by legislative action. “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” Obergefell, 135 S. Ct. at 2605.
¶26 When a statute grants benefits but violates equal protection, a court has “two remedial alternatives.” Califano v. Westcott, 443 U.S. 76, 89 (1979). “[A] court may either declare [the statute] a nullity and order that its benefit not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Id. (quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring in result)). State court judges face the same remedial alternatives when a benefit statute violates equal protection. See Wengler, 446 U.S. at 153 (remanding remedial question to state court because “state judges are better positioned to choose” whether extension or nullification of a state benefit statute is more “consonant with the state legislature‘s overall purpose“). This remedial choice is not confined to circumstances in which the state grants monetary benefits but instead applies to other statutory classifications violative of equal protection. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686–87 (2017) (concerning statutes conferring U.S. citizenship on children born abroad); Welsh, 398 U.S. at 361–63 (Harlan, J., concurring) (concerning statute authorizing exemption from military service for conscientious objectors).
¶27 Which remedial alternative a court elects “is governed by the legislature‘s intent, as revealed by the statute at hand.” Morales-Santana, 137 S. Ct. at 1699. In making this assessment, a court should “measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.” Heckler, 465 U.S. at 739 n.5 (quoting Welsh, 398 U.S. at 365 (Harlan, J., concurring in result)). Generally, the proper remedy is extension, not nullification. Morales-Santana, 137 S. Ct. at 1699.
¶28 Because
¶29 A primary purpose of the marital paternity presumption is to ensure children have financial support from two parents. The legislature originally enacted
¶30 To strike
¶31 The marital paternity presumption also promotes the family unit. The legislature declared that the general purpose of Title 25 is “[t]o promote strong families” and that it is generally in the child‘s best interest “[t]o have substantial, frequent, meaningful and continuing parenting time with both parents” and “[t]o have both parents participate in decision making about the child.”
¶32 Extending the marital paternity presumption to same-sex spouses also better promotes strong family units. In Obergefell, the Supreme Court concluded that the right to marry is fundamental in part because “it safeguards children and families.” 135 S. Ct. at 2590. By denying same-sex couples “the recognition, stability, and predictability marriage offers,” the Court found that children of same-sex couples “suffer the stigma of knowing their families are somehow lesser” and “suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.” Id. Extending the marital paternity presumption mitigates these harms. Children born to same-sex spouses will know that they will have meaningful parenting time with both parents even in the event of a dissolution of marriage. By contrast, nullifying
¶33 For these reasons, we extend
¶34 We are not persuaded by our dissenting colleague‘s argument that this relief exceeds the proper role of the courts. Infra ¶ 51. The partial dissent acknowledges that, under Obergefell and Pavan, a state must afford “parenting rights to members of same-sex couples on an equal basis with opposite-sex couples.” Infra ¶ 50. We honor that constitutional requirement by holding that Suzan must enjoy the same presumption of parentage under
¶35 “[W]hen the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Morales-Santana, 137 S. Ct. at 1698 (alteration in original) (quoting Heckler v. Mathews, 465 U.S. 728, 740 (1984)). That courts must make such a choice does not reflect impermissible judicial “rewriting” of a statute; indeed, leaving intact a statute that violates the
¶36 Obergefell and Pavan, we acknowledge, will require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all the benefits afforded opposite-sex spouses. See Obergefell, 135 S. Ct. at 2601 (identifying the benefits of marriage affected by its holding as including: “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules“). That reassessment need not occur through case-by-case litigation.
¶37 Like the judiciary, the legislative and executive branches are obliged to follow the United States Constitution.
III.
¶38 Because Suzan is presumed a parent under
¶39 Equitable estoppel “precludes a party from asserting a right inconsistent with a position previously taken to the prejudice of another acting in reliance thereon.” Unruh v. Indus. Comm‘n, 81 Ariz. 118, 120 (1956); see also Valencia Energy Co. v. Ariz. Dep‘t of Revenue, 191 Ariz. 565, 576–77 ¶ 35 (1998) (“The three elements of equitable estoppel are traditionally stated as: (1) the party to be estopped commits acts inconsistent with a position it later adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former‘s repudiation of its prior conduct.” (footnote omitted)).
¶40 We have often applied equitable estoppel in our family law jurisprudence, including dissolution cases. See Unruh, 81 Ariz. at 120 (citing three decisions by this Court in which we estopped parties from challenging presumptively valid divorces). Further, other state supreme courts have applied equitable estoppel in paternity actions, including cases involving marital paternity presumption statutes similar to
¶41 Here, Kimberly and Suzan agree that they intended for Kimberly to be artificially inseminated with an anonymous sperm donor and that Kimberly gave birth to E. during the marriage. During the pregnancy, they signed a joint parenting agreement declaring Suzan a “co-parent” of the child and their intent that the parenting relationship between Suzan McLaughlin and the child would continue if Suzan and Kimberly‘s relationship ended. After E.‘s birth, Suzan stayed home to care for him during the first two years of his life. Thus, the undisputed facts unequivocally demonstrate that Kimberly intended for Suzan to be E.‘s parent, that Kimberly conceived and gave birth to E. while married to Suzan, and that Suzan relied on this agreement when she formed a mother-son bond with E. and parented him from birth.
¶42 In response, Kimberly counters that applying equitable estoppel here imposes an irrefutable standard that only benefits same-sex marriages. We reject this argument for two reasons. First, all presumptions under
¶43 For the foregoing reasons, we hold that Kimberly is equitably estopped from rebutting Suzan‘s presumptive parentage of E.
IV.
¶44 We vacate the court of appeals’ opinion, affirm the trial court‘s ruling that Suzan is E.‘s legal parent, and remand to the trial court for further proceedings consistent with this opinion.
¶45 The majority correctly concludes that the
¶46 The remedy in this case presents a more complex issue. The majority properly identifies our two imperfect remedial options: we may invalidate
¶47 In his partial dissent, Justice Bolick declines to join the majority‘s analysis and conclusion regarding the appropriate remedy in this case, labeling it “unnecessary, unwise, and beyond the proper scope of judicial power.” ¶ 51, infra. Contrary to Justice Bolick‘s concern, however, the Court neither rewrites the statute nor improperly assumes the legislative prerogative. Instead, faced with a statute that (after Obergefell and Pavan) no longer can be constitutionally applied to only opposite-sex marriages, the Court necessarily and reasonably extends the statute to the same-sex couple here.
¶48 Justice Bolick agrees with the result in this case and thus, like the majority, opts to affirm the family court‘s ruling that treats the parties’ marital dissolution as one with children. But he does not convincingly explain how that result can obtain other than by extending
¶49 The majority‘s approach is consistent with the rule of law as enunciated by the United States Supreme Court, which we are bound to follow. While circumstances require us to drive a remedial square peg into a statutory round hole here, nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking
¶50 I agree with the majority that the United States Supreme Court‘s decision in Pavan unequivocally forbids states from denying parenting rights to members of same-sex couples on an equal basis with opposite-sex couples. I also agree that the facts and equitable considerations make a compelling case for Suzan to have parenting rights. Suzan and Kimberly were a legally married couple when their baby was born. Not only did they execute a co-parenting agreement in times that were happier between them, but Suzan rather than Kimberly would have been the birth mother had she been able to conceive through artificial insemination, which would have reversed the present circumstances. I therefore join my colleagues in affirming the trial court‘s decision to proceed with this case as a marital dissolution with children.
¶51 With great respect, however, I cannot join the majority in rewriting our state‘s paternity statute, which is unnecessary, unwise, and beyond the proper scope of judicial power. The marital presumption that the majority finds unconstitutional and rewrites,
¶52 Because the paternity statute does not offend the Constitution, no basis exists for the Court to “extend” the marital
¶53 While the Court properly applies Pavan to find unconstitutional the State‘s failure to provide a parenthood mechanism for same-sex couples and to sustain the trial court‘s order treating Suzan and Kimberly‘s marital dissolution as one involving children, it should continue these proceedings to determine additional appropriate remedies. The State intervened in this lawsuit, then withdrew notwithstanding the remaining challenge to the constitutionality of its statutes. The State should be made a party to the lawsuit to enable the Court to properly evaluate and determine appropriate remedies.