Achieving LGBTQ Equality Through Litigation, Legislation, Policy, and Public Education

Case Summary & History


Case: Pavan v. Smith

STATUS: Victory!

Marisa and Terrah Pavan were legally married in New Hampshire in 2011. The Pavans were living in Arkansas in 2015 when Terrah gave birth to their daughter. Marisa and Terrah jointly planned their daughter’s conception and arranged and paid for an anonymous sperm donor.  They completed the application to receive a birth certificate at the hospital when their daughter was born, listing both women as parents on the application. However, when the Arkansas Department of Health issued the child’s birth certificate, it did not include Marisa’s name on the birth certificate and named Terrah as the only parent.

Leigh and Jana Jacobs were legally married in Iowa in 2010. They too were living in Arkansas when Leigh gave birth to their son in 2015. As with the Pavans, both parents arranged and paid for an anonymous sperm donor.  Again, despite the Jacobs’ request that they both be placed on the birth certificate, they were issued a birth certificate naming only Leigh on their son’s birth certificate.

Under Arkansas law, when a different-sex married couple has a child, the husband of the birth mother is automatically named on the birth certificate as the child’s parent. That is true no matter how the couple conceived the child. Even if the child was born through donor insemination and therefore is not genetically related to the mother’s husband, state law requires that he be named on the birth certificate as a parent.

The state’s refusal to issue birth certificates naming both parents to the Pavan and Jacobs families violated the clear ruling of the United States Supreme Court in its 2015 marriage equality decision, Obergefell v. Hodges, which requires states to treat the marriages of same-sex couples the same as other couples’ marriages for all purposes under the law.

The Jacobses and Pavans filed a lawsuit in Arkansas state court against the director of the Arkansas Department of Health seeking a declaration that Arkansas’ birth certificate law violated the United States Constitution by treating married same-sex couples differently than other married couples. The trial court agreed and ruled that the birth certificate law violated Obergefell because it categorically prohibited married same-sex couples from enjoying the same spousal benefits which are available to all other married couples.  A divided Arkansas Supreme Court reversed that judgment and ruled that the birth certificate statute was constitutional.

On behalf of the Pavan and Jacobs families, NCLR petitioned the Supreme Court of the United States to overturn the decision of the Arkansas Supreme Court.  On June 26, 2017, the U.S. Supreme Court granted these families’ petition and reversed the decision of the Arkansas Supreme Court.  The Court ruled that by treating married same-sex couples differently than other married couples, the Arkansas birth certificate law “denied married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage’” and therefore violated the Court’s decision in Obergefell.

The families in Pavan v. Smith were represented by NCLR, Arkansas attorney Cheryl Maples, and Ropes & Gray LLP.  NCLR and Ropes & Gray were also counsel for the Tennessee plaintiffs in Obergefell v. Hodges, the U.S. Supreme Court’s 2015 marriage equality decision.


NCLR’s Petition for Cert to the U.S. Supreme Court (pdf)

The amicus brief from a group of family law professors (pdf)

The amicus brief from Lambda Legal and GLAD (pdf)

The amicus brief from Family Equality Council and COLAGE (pdf)

The U.S. Supreme Court’s order reversing the Arkansas Supreme Court (pdf)

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