The Arizona Supreme Court handed down an opinion recently finding a presumption of maternity for a married lesbian couple where the child was born during the marriage. This ruling applies the presumption of paternity for a heterosexual couple to a same-sex couple. This is what many believe the correct application of the law to be post-Obergefell. This question has not been finally decided in Texas, and a Beaumont ruling actually finds the opposite of this ruling – that the presumption of maternity does not apply to a lesbian couple.

The Arizona court examined the application of the constitutional protections from Obergefell in reconciling the paternity statutes. Their analysis follows:

Kimberly argues that the Court cannot interpret § 25- 814(A)(1) gender neutrally because doing so would effectively rewrite the statute, thereby invading the legislature’s domain. Instead, Kimberly contends that this Court must wait for the legislature to remedy this constitutional defect. This argument misperceives this Court’s constitutional role and responsibility when faced with a statute that violates the equal protection of the laws guaranteed by the Fourteenth Amendment.

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.

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).

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.

Because § 25-814(A)(1) is now a constitutionally defective state-benefit statute, we must determine whether to extend the marital paternity presumption to similarly situated women such as Suzan or to nullify it altogether. Neither party here requests that this Court strike § 25- 814(A)(1). This is unsurprising because extension, as opposed to abrogation, is more consonant with the purposes of the marital paternity presumption.

For these reasons, we extend § 25-814(A)(1) to same-sex spouses such as Suzan. By extending § 25-814(A)(1) to same-sex spouses, we ensure all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.

Many lawyers interpret the status of the law for same-sex lesbian couples where a child is born during the marriage to require a Suit to Adjudicate Parentage as with other heterosexual couples. Most of the time we tell parents to do a second-parent adoption to be safe and establish legitimacy. But many experts in the field feel that this is an unconstitutional burden upon same-sex married parents that denies equal protection under the law.

Until there is a Texas case on point, it is still a good idea to cover all avenues just to be safe.

Read the opinion: http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2017/CV-16-0266-PR%20Opinion.pdf

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.