The Supreme Court ruled on Monday that same-sex parents had to be listed on the birth certificates of their children. 3 justices dissented from the Court’s per curiam decision. The dissent was written by Neil Gorsuch, who demonstrated that he is what his record says he is:
In his dissent, Gorsuch made two counterarguments, neither of which is even remotely plausible.
First, he wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place.
I asked Shannon Minter, legal director of the National Center for Lesbian Rights—which represented the Arkansas plaintiffs—what he made of Gorsuch’s assertion.
“That’s just completely wrong,” he told me. “It is patently untrue. Arkansas refused to put the female spouse of a birth mother on the birth certificate. The Arkansas Supreme Court upheld the policy, and the state would not issue birth certificates that listed both same-sex parents.” Minter should know; he represented two couples who were denied the right to “legally accurate” birth certificates.
On Tuesday, I reached out to the Supreme Court’s public information office to ask whether Gorsuch planned to correct this error. A spokeswoman for the court told me that “as a matter of policy the Court does not comment on its opinions, which speak for themselves.”
Second, Gorsuch wrote that the plaintiffs’ challenge was incorrect: He insisted they should have challenged the “artificial insemination statute,” not the state policy refusing to list same-sex parents on birth certificates. This reasoning makes no sense. The plaintiffs cited the artificial insemination statute only to prove that Arkansas already listed non-biological parents on birth certificates. They had no desire to overturn it; they merely used it as evidence that Arkansas was not extending a key marital benefit to same-sex couples. Did Gorsuch simply not understand this extremely basic aspect of the case?
“I think he’s deliberately trying to muddy the waters,” Minter told me. “The plaintiffs in this case brought their challenge in under a statute that very plainly provides that when a child is born to a married woman, her husband must be named on the child’s birth certificate. We went to court to challenge the gendered limitation of that statute, arguing that, under Obergefell, the law has to be applied equally to married same-sex couples. We had absolutely no reason to challenge the artificial insemination statute.”
As many of you know, inventing specious procedural objections that make it difficult to apply precedents you don’t like but don’t have the votes to overrule is a longstanding Alito specialty.
Anyway, the clear lesson of this hump being on the Supreme Court for several more decades is that the left should treat elections as exercises in atomistic consumer expression.