Arizona Supreme Court says gays get equal parental rights

By Bob Christie, Associated Press | Posted - Sep. 19, 2017 at 4:41 p.m.

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PHOENIX (AP) — The Arizona Supreme Court on Tuesday ruled that a lesbian woman who is divorcing her spouse is entitled to equal parental rights under the U.S. Constitution, even though a state law doesn't recognize those rights.

The ruling from the state's highest court said U.S. Supreme Court precedent requires same-sex couples be afforded the same rights as straight couples.

It goes much further, suggesting that a host of Arizona laws and rules need to be rewritten to avoid case-by-case litigation.

The ruling involves a case stemming from artificial insemination. Arizona law assumes the man in a marriage is the father of any child born within 10 months of a marriage. But it doesn't establish any rights in artificial insemination cases for the non-biological parent of the same sex.

The Arizona Supreme Court could have thrown out the law, but instead extended it to include women in similar circumstances.

Citing the 2015 U.S. Supreme Court decision that legalized gay marriage nationwide, Arizona Chief Justice Scott Bales wrote, "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."

Details of how to define parenting and a raft of other issues have been working their way through state courts since the nation's high court legalized gay marriage.

Artificial insemination cases raise difficult issues. Several states, including New Mexico, Washington and Nevada, allow women or men who consent to another woman's insemination to be legally considered the child's parent, even if the couple is not married, according to the National Center for Lesbian Rights. Arizona isn't one of the states.

The case decided Tuesday involves a Tucson couple, Kimberly and Suzan McLaughlin. Kimberley had a son through artificial insemination while married to Suzan in 2011, but the couple later separated.

The couple had legal agreements to shared parenting, but Kimberly McLaughlin opposed that after the couple broke up.

Kimberly McLaughlin's attorney argued during a June hearing that state law doesn't establish any rights in artificial insemination cases for the non-biological parent of the same sex. However, the high court sided with Suzan McLaughlin, saying she is entitled to the same parental rights as her same sex spouse.

"I am relieved and overjoyed that the court recognized me as my son's mother," Suzan McLaughlin said in a statement provided by the National Center for Lesbian Rights, whose lawyers took the case to the high court. "All I have ever wanted is to be there for him like any mother would."

Keith Berkshire, Kimberly McLaughlin's attorney, said she was disappointed in the ruling.

Justice Clint Bolick dissented on the court's remedy, calling it "unnecessary, unwise, and beyond the proper scope of judicial power."

"It is not the paternity statute that is unconstitutional," he wrote, "but rather the absence of a mechanism to provide parenthood opportunities to single-sex couples on equal terms appropriate to their circumstances."

The top prosecutor in Maricopa County — a Republican — and the pro-family group Center for Arizona Policy argue that the U.S. Supreme Court decision isn't as wide-ranging as gay marriage proponents contend.

However, in the majority court opinion, Bales sent a warning to the Republican-led Arizona Legislature, which has resisted updated laws to conform to U.S. Supreme Court precedent.

"Through legislative enactments and rulemaking, our coordinate branches of government can forestall unnecessary litigation and help ensure that Arizona law guarantees same-sex spouses the dignity and equality the Constitution requires — namely, the same benefits afforded couples in opposite-sex marriages." Bales wrote.

Berkshire said more litigation is certain, noting several same-sex parenting cases have been on hold in lower courts while judges waited for the Arizona Supreme Court ruling.

"More of these are going to go up (to higher courts) because they have to — statutes clearly weren't written to deal with these situations," he said.

— The case is Kimberly McLaughlin v. Hon. Jones/Suzan McLaughlin.

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Bob Christie

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