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Marriage Equality: LGBT Couples’ Constitutional Issues

Lesbian, gay, bisexual, and transgender (LGBT) couples get married for most of the same reasons that lead straight people to get married. These reasons include love, a desire to start a family, a rite of passage, and to celebrate a union. Nonetheless, if the discourses surrounding LBGT marriage equality and rights were just focused on emotions and socially established customs, then the issue of civil rights would be missing. Like everywhere else in the world, straight couples in the US get married for love among other reasons. More importantly, in the US specifically, straight couples get over 1,000 legal protections and related benefits granted through marriage certificates to defend their families and for self-protection. Previously, in the US, gay couples were denied some protections and obligations, which included child custody, parenting rights, child adoption, parental name inclusion on the birth certificate, medical decision-making rights, divorce protection, access to a family insurance policy, and others. Additionally, gay couples also faced challenges associated with automatic inheritance, the power to sue for wrongful deaths of a partner, property tax issues, testifying against a partner, and a lack of support to claims related to family and child support.

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Some improvements were noted when the Defense of Marriage Act (DOMA) was overturned in June 2013. DOMA had not offered over 1,138 federal rights and protections to married LGBT couples. Consequently, the Respect for Marriage Act (RFMA) was proposed, adopted, and since 2014, more states have increasingly supported marriage equality. In June 2015, the US Supreme Court legalized same-sex marriage countrywide when it’s ruling in the case Obergefell v. Hodges demonstrated that bans imposed on same-sex marriage by states were unconstitutional. The Court argued that the rejection of marriage licenses to same-sex partners and the negation to acknowledge those marriages carried out in those states violated the Due Process and the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, and this Court decision overturned a precedent, Baker v. Nelson. Concerning the case of Pavan v. Smith, 582 U.S. ___ (2017), the constitutional issue under discussion in this essay relates to achieving LGBT equality, specifically marriage equality and related rights and benefits.

Pavan v. Smith, 582 U.S. ___ (2017)

Marisa and Terrah Pavan were a lesbian couple legally married in the State of New Hampshire in 2011. At the time when the couple had their daughter in 2015, they were living in the State of Arkansas (Legal Information Institute, 2017). Previously, the couple had both arranged their child’s conception, searched for an unidentified sperm donor, and paid for the cost. They completed all the paperwork required for a birth certificate at the healthcare facility where the child was born, indicating the two women as the parents on the application form. When the Arkansas Department of Health gave out the birth certificate of the child, it, however, failed to include Marisa’s name on the certificate. Instead, only Terrah was identified as the parent.

In another similar case, Jana and Leigh Jacobs got married legally in 2010 under the Iowa State laws, moved to Arkansas, and had their first child in 2015. Like the Pavans, the parents acquired sperms from an anonymous donor. The couple requested that they both be included on the birth certificate as parents, but surprisingly to them, only Leigh’s name was placed in the certificate as the only parent.

Under Arkansas state law, the Ark. Code 20–18–401, the Department of Health is mandated to issue a birth certificate with the mother’s name (Justia, 2017). As noted in Justia (2017), the following is stated:

the mother is deemed to be the woman who gives birth to the child … if the mother was married at the time of either conception or birth … the name of [her] husband shall be entered on the certificate as the father of the child.” Another man may appear on the birth certificate if the “mother,” “husband,” and “putative father” all file affidavits vouching for the putative father’s paternity (para. 1).

This Code shows that whenever a straight married couple has a baby, the husband of the birth mother is by design named on the child’s birth certificate as the parent (father). This law applies irrespective of how the couple conceived the baby. Even if the baby was conceived using donor insemination and, thus, not genetically related to the supposed father, the law states that he should be placed on the birth certificate as the father (parent).

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In the two cases, the state’s rejection to issue birth certificates containing the names of both parents as fathers are deemed to have dishonored the US Supreme Court’s ruling on Obergefell v. Hodges on marriage equality. This ruling compels states to treat all marriages (same-sex or different-sex marriage) equally for all purposes within the law irrespective of the sex of the couple. The couples filed a lawsuit in the state court against the State of Arkansas Department of Health director seeking a determination that the birth certificate practice disregarded and violated the US Constitution by considering married same-sex couples differently compared to other married couples. The trial court concurred, ruled that the birth certificate law was unconstitutional, and violated the Obergefell v. Hodges ruling on marriage equality. The state law directly barred married LGBT couples from reveling in the same spousal assistances, which are granted to all other couples. Thus, the US Supreme Court reversed the decision of the Arkansas Supreme Court, and it ruled that the statute for the birth certificate was unconstitutional. By treating married same-sex couples differently relative to other married couples, the statute barred the couples from access to a wide range of benefits that the State granted through marriage.

The Court also determined that the State of Arkansas makes its birth certificate more important in other issues beyond acting as a mere device to capture biological relationships. Arkansas relies on birth certificates to grant benefits of legal recognitions to married parents – this treatment is not available to unmarried parents. To demonstrate further importance of a birth certificate, in case of adoption, Arkansas puts the first birth certificate under seal and provides a new one to the adoptive parents with their names listed (there is no indication of the amendment of the certification) – Ark. Code §§20–18–406(a)(1), (b) (2014); Ark. Admin. Code 007.12.1–5.5(a) (Apr. 2016).

The Proposed Solution

Achieving marriage equality is a complex issue for LGBT married couples. As such, a multi-pronged solution is necessary. The intervention should include legislation, litigation, policy, advocacy, and public education to create awareness about important legal protections available to married same-sex couples (Ball, 2015).

From legislation and litigation context, the code of equal treatment is an important aspect of the US Constitution, which ensures that all persons are treated equally irrespective of their sexual orientations. Same-sex couples have been openly campaigning and struggling to attain legal recognition of their married status and benefits that come with it for many years. The landmark Supreme Court ruling of 2015 affirms the rights of same-sex couples throughout the US. They should have equal access to all benefits, rights, and responsibilities that come with marriage. Before 2015, in 2010, the US District Court for Northern California ruled that no evidence historically supported the exclusion of same-sex couples from marriage in Perry v. Schwarzenegger.

However, it appears that opponents of marriage equality have attempted to frustrate the implementation of the Obergefell v. Hodges ruling. Specifically, the State of Arkansas attempted to undermine the ruling on same-sex parental by including one name of a parent on a birth certificate. As previously stated, the State refused to list both names of the parents. While some past rulings favoring gay couples are seen as major improvements on marriage equality under the law, the recent act of Arkansas shows that some states are not ready to grant such equality to LGBT couples. Some legal entities supporting marriage equality have filed their briefs in the US Supreme Court emphasizing the right of married same-sex couples in cases where state agencies have flouted the provisions under rulings supporting marriage equality. The Arkansas Supreme Court tried to cover up this discrimination by arguing that birth certificates are planned to gather data concerning biological parents and, thus, a biological justification offered a sufficient ground to treat same-sex couples differently.

Birth certificates, as previously shown, in the State of Arkansas and other states, are vital documents of legal parentage rather than biological parentage. Thus, denying both parents an opportunity to list their names results in serious, evident harm. Such a restriction repudiates married same-sex couples the normal status of parents and families. At the same time, it limits the possibility of both parents making vital or time-driven decisions, for instance, in medical emergencies or getting a child’s benefits from the state and federal governments. Across all states, babies born into a marriage are recognized to belong to parties in the marriage – this also includes children born using other assisted methods. By solely focusing on same-sex marriage for a different standard, the state demonstrates that it can ignore the requirement of the Obergefell v. Hodges ruling on marriage equality – married lesbian couples have all the rights and benefits associated with marriage equality as their straight counterparts. Through the focus on legislation and litigation, the US Supreme Court was able to review and reverse the unconstitutional ruling of the Arkansas Supreme Court. It had to summarily and clearly reaffirm the marriage equality decision and the obligation of equal dignity and the same treatment of all married couples and compellingly demonstrate to state lawmakers, courts, and agencies that any actions that undermine these rights and benefits are improper and in violation of the obvious directives of the US Supreme Court.

The case of Pavan v. Smith, 582 U.S. ___ (2017) presents one critical outcome – the full realization of the married same-sex couple equality is not over yet. Proponents of LGBT rights cannot, therefore, ignore this fact. Part of the fight for marriage equality can be realized using policy change. Although the US Supreme Court had given a historic verdict in June 2015 on gay marriage, same-sex married couples still do not enjoy equal legal status as other married couples in the US. In some states, for example, gender identity or sexual orientation can still be used to fire employees legally. Additionally, such states have not offered any categorical protections for the LGBT community. Same-sex couples may find it hard to get rental apartments or senior housing facilities. Discrimination against gay couples requires a policy change.

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The proposed Equality Act 2016 bill is expected to amend the Civil Rights Act 1964 and to outlaw any form of discrimination against the LGBT community when they seek public and private services, such as housing, employment, education, healthcare, access to credit, legal services, and accommodations among others. If the Equality Act 2016 is passed, changes in policy are expected to have a widespread influence on the behaviors and attitudes of the public. For example, a ban on discrimination of the LGBT community would result in treatment that is more favorable when they seek services. Such changes in-laws affect attitudes and behaviors of people not because of the imminent punishment, but rather laws set the moral grounds for engagement. Changes in laws that define discrimination as deviant, illegal, or criminal could potentially lead to positive gains for the LGBT community. Therefore, policy change presents an important part of the solution to the marriage equality problem.

Gains realized over the past few years reflect what advocacy and public awareness can do to the LGBT community. For example, some states legalizing same-sex marriage, President Obama recognizing LGBT rights in his discussions, Obergefell v. Hodges ruling on marriage equality, and Pavan v. Smith ruling among others demonstrate major instances where advocacy and public education and awareness have worked. However, as the struggle to end discrimination of same-sex couples continues to advance, proponents should focus on how they will address a series of challenges emerging. They can capitalize on the gains and current momentum to continue to promote a wide range of issues and to change public practices and social norms to ensure that marriage equality is a lived reality and a legal right for LGBT individuals. Thus, current priorities should strive to use advocacy and public education to create widespread awareness and realize changes in society (Badgett, 2011). The current challenges facing marriage equality reflect the inability of society to embrace changes and enhance inclusion.

Achievements realized so far by the LGBT community are largely efforts directed to advance policy change to ensure that gay people have access to marriage rights and benefits. Beyond getting inclusion and recognition, LGBT people have strived to use social policy and advocacy to bring down numerous institutional barriers to realize changes in social norms. As a result, the wider public has noted that same-sex marriage can be supported through pro-LGBT policy agendas to enhance inclusion. Much attention has been directed to same-sex marriage that it threatens to exclude other vital issues that can advance complete acceptance and inclusion (Badgett, 2011). Consequently, marriage has become an important advocacy platform, but its related benefits and rights, such as the contents of birth certificates have not been sufficiently addressed. Accomplishments noted in the marriage equality ruling demonstrate advocacy and policy change work to improve the rights of minority groups. Such approaches should also be applied to other crucial rights, such as access to healthcare (reproductive rights) of same-sex people. If no sustained advocacy, public awareness, and changes in policies are promoted, then the gains made could stall, and they become exposed to opponents of gay rights and benefits – all of which could negatively affect progress noted today. Policy change and advocacy efforts should focus on how local, state, and federal policies can be transformed to improve inclusion for the LGBT community. More importantly, the discourse about LGBT should now move beyond marriage equality and address other issues that ensure complete equity, fairness, and inclusion.

Advocacy groups should improve their nationwide coverage and support. Once more people are informed of their rights, the LGBT community would eventually realize basic equal rights and absolute protection from harm. Legal experts, educators, and other civil rights organizations can work together to promote equality. They can engage, inspire, and convince the public to shun discrimination and promote acceptance and inclusion to ensure equality and fairness for all.

Human and civil rights are considered as a classification of rights that guarantee and protect people’s freedom from unnecessary infringement by the public, the government, and private bodies. These sets of rights ensure that individuals can freely engage in normal activities of self and state without oppression and discrimination. So often, intricate gay rights issues are addressed and understood merely in abstract terms, but with sustained public education and awareness, the public would understand the influence of laws and policies on the LGBT community and demonstrate how they can promote positive initiatives for change. Public education and awareness could be used as effective tools to inform the public and show the relevance of policy change to promote equality for all.

Social Policy Implications of the Solution

The multi-pronged solution provided for marriage equality aims to ensure social inclusion and cohesion. It accounts for the diverse needs of individuals and offers equal treatment (Peters & Besley, 2014). It would ensure that all different groups and persons in society receive public and private services without discrimination. Social inclusion presents implications for public agencies and individuals. It requires changes in policies to support public awareness, public officials’ awareness, and their capabilities to warranty and enhance marriage equality while fighting same-sex marriage discrimination. Current laws and legislation require major initiatives that change legal onuses into actual action for the LGBT community.

The case of Pavan v. Smith shows that public agencies and officials do not fully implement available laws or court decisions. Thus, they should be targeted to drive and promote the fundamental rights of married same-sex couples. Many policy initiatives are ongoing to ensure that same-sex couples can realize full marriage benefits and rights. This implies that federal, state, and local structures should be changed to accommodate married gay couples. Raising awareness about fundamental rights of married LGBT couples is necessary, especially among public officials who lack awareness about such rights and changes in public policies. Discussions about issues should focus on specific challenges experienced within a given public agency because LGBT problems go beyond marriage to attacks, bullying, harassment, and denial of healthcare, accommodation, and safety provisions among others. States that have not sufficiently addressed such challenges require interventions, while states that have done so need to create awareness. Public officials should comprehend legal factors affecting married same-sex couples. They should understand that social inclusion extends to legal protection under various state and federal statutes. Some changes in laws and policies, directives and recommendations, such as Obergefell v. Hodges ruling, are seen as positive initiatives for creating and executing policies at the state levels. Implementation of initiatives requires resources, such as expert staff, to ensure their success and realization of the fundamental rights of same-sex couples’ rights.

The US Supreme Court has demonstrated that it can offer legal and policy standards to further improve current laws and policies on married LGBT couples’ rights and benefits. Such legal approaches ensure that married gay couples enjoy the same protection under the law as their married straight counterparts, leading to strengthened practices. Thus, legal and policy initiatives are necessary to encourage and support public agencies to take the right steps in realizing LGBT rights and benefits.

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Social inclusion also requires a progressive transformation of social norms and attitudes. It is imperative to recognize that views on LGBT rights vary widely across states. Nonetheless, it is observed that increased visibility has made the public more tolerant of same-sex persons, but some dissenting opinions are noted. For example, in the US, it is reported that some states support gay couples’ rights, which translates to greater tolerance and visibility. However, the same cannot be said of states like Arkansas, which are not willing to implement previous rulings supporting marriage equality. This, therefore, means that some policy changes are necessary to support the rights and benefits of same-sex couples. Gay events are widely controversial, and some events may lead to attacks and strong opposing voices. It is, however, important to note that such events, though contentious, lead to meaningful, open public discourses.

Social inclusion also highlights the importance of federal statutes and strategic litigation. The US Supreme Court was crucial in assisting same-sex couples to realize their marriage rights. Likewise, the same Court also stopped public officials from abusing such rights. To this end, the per curiam ruling on the case of Pavan v. Smith remains extremely relevant to the LGBT community and demonstrates the role of federal statutes in protecting the rights of minority groups. Thus, advocacy groups and the public should always stress the importance of taking controversial court decisions to the US Supreme Court. The successful court cases presented by LGBT couples show achievements and the relevance of ensuring marriage equality in society.

Finally, enhanced coordination of approaches for same-sex marriage equality policies is required. Specifically, government agencies should work together to implement new reforming legislation rather than ignoring them. In this case, the Arkansas Department of Health can work together with courts to resolve different issues pertinent to same-sex partners, their families, rights, and benefits.


In this essay, the constitutional issue of marriage equality for married same-sex partners was explored. According to the case of Pavan v. Smith, LGBT couples still face discrimination, notwithstanding court decisions that grant them equal rights as other married partners. The Obergefell v. Hodges and Pavan v. Smith rulings will most likely influence future court decisions on marriage equality. Social inclusion issues are raised. Thus, advocacy and other supporting groups should improve their efforts to sustain and initiate new policies to advance marriage equality.


Badgett, M. V. (2011). Social inclusion and the value of marriage equality in Massachusetts and the Netherlands. Journal of Social Issues, 67(2), 316–334.

Ball, M. (2015). How gay marriage became a constitutional Right. The Atlantic. Web.

Justia. (2017). Pavan v. Smith, 582 U.S. ___ (2017). Web.

Legal Information Institute. (2017). Pavan v. Smith. Web.

Peters, M. A., & Besley, T. A. (2014). Social Exclusion/Inclusion: Foucault’s analytics of exclusion, the political ecology of social inclusion and the legitimation of inclusive education. Open Review of Educational Research, 1(1), 99-115. Web.

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