For Same-Sex Couples, No Equality Under 'Special Rules'

      Back in the day when anti-LGBT campaigns were in fashion, opponents tried to rally the public against gay rights with campaigns built around the powerful if misleading slogan, "No special rights." The anti-gay groups used the slogan to stall or block anti-discrimination measures by arguing to lawmakers and voters that equal treatment under the law would give gay folk a privileged status instead of the legitimate birthright guaranteed to all Americans.
      Decades later, LGBT advocates achieved a landmark victory with the Supreme Court's decision in 2015 guaranteeing equal marriage rights for same-sex couples nationwide. Four years later, however, some same-sex couples are discovering that their ostensibly equal rights come with an asterisk: "special rules" that grant them fewer rights than opposite-sex couples enjoy.
      Within recent days, the U.S. Department of State and the Arizona Supreme Court have given their stamps of approval to policies that reduce same-sex couples' unions to second-class marriages under the law. The victims of these decisions are same-sex couples shopping for wedding invitations in Phoenix and a married gay couple in Maryland seeking to establish U.S. citizenship for their Canadian-born infant daughter.
      The Arizona court's 4-3 decision in Brush and Nib Studio LC v. City of Phoenix marks the first time a state court has squarely held that a company serving the public has a constitutional right to violate an anti-gay discrimination law. The stationery store, owned by two self-identified Christians who cite religious beliefs in opposing same-sex marriage, sued the city in state court claiming a First Amendment right to refuse to print customized wedding invitations for same-sex couples.
      Writing for a majority that included four Republican-appointed justices, Justice Andrew Gould concluded that it would amount to unconstitutional "compelled speech" to require Brush and Nib's owners to customize invitations with the customary request to join in celebrating a marriage that they disapprove of. The dissenting justices, the Court's only Democratic-appointee and two Republicans, contended that the city's ordinance regulated conduct, not speech, with only "incidental" effect on the store owners' speech rights.
      Supreme courts in three other states have rejected similar claims by anti-gay marriage business owners: a baker in Colorado, a photographer in New Mexico, and a florist in Washington. The U.S. Supreme Court ruled for the Colorado baker in its  decision Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2017 only by finding that the state agency's decision to fine the baker was tainted by religious bias.
      The Washington Supreme Court reaffirmed its decision in the florist's case after the U.S. justices sent the case back with instructions to reconsider the case in the light of Masterpiece Cakeshop. In short, the Arizona court's decision, filed on Monday [Sept. 16], breaks new ground by throwing same-sex couples under the religious-liberty bus when claiming rights to equal treatment under state or local anti-discrimination laws.
      The Maryland couple's dispute with the State Department marks the most recent skirmish for married same-sex couples raising children born through some form of assisted reproduction. Roee Kivit and Adiel Kiviti, Israeli-born U.S. citizens who married in California in October 2013, used a gestational surrogate to give birth to their second child, a daughter, in Calgary, Canada, earlier this year.
      K.R.K.'s birth certificate accurately lists Roee and Adiel as parents, not the surrogate mother. But the State Department has refused to issue a passport showing K.R.K. to be a U.S. citizen, just as a child of married U.S. citizen parents ordinarily would be even if born abroad. The State Department is ignoring the couple's marriage by invoking an immigration law provision that limits citizenship for an out-of-wedlock child born outside the United States.
      For an unmarried couple, a child born abroad to U.S. citizen parents is entitled to U.S. citizenship only if both parents satisfy a durational U.S. residency requirement: specifically, at least five years' residence in the United States prior to the birth. Adiel does not satisfy that requirement: he became a lawful permanent resident in 2015 and a U.S. citizen in 2019.
      Lawyers from Lambda Legal, representing the couple, argue in a 22-page complaint filed earlier this month [Sept. 12] in federal district court in Rockville that the State Department policy is contrary to law and unconstitutional as well. The policy, the lawyers argue, discriminates against the couple because of their sexual orientation and serves "no rational, legitimate, substantial, or compelling government interest."
      Admittedly, children born to married same-sex couples pose novel issues for the law, but the Supreme Court has already issued one ruling that, in effect, requires states to treat same-sex couples just as they would treat opposite-sex couples. The summary 6-3 decision in Pavan v. Smith (2017) required Arkansas to list two married lesbians as parents on their child's birth certificate: the biological mother as well as her female spouse.
      The Court noted that a married opposite-sex couple would both be listed as parents of a child born through assisted reproduction, even if the husband was not the biological father. The ruling emphasized that the Court's marriage-equality decision, Obergefell v. Hodges, entitles same-sex couples to marriage "on the same terms and conditions as same-sex couples."
      The State Department policy flies in the face of that command and illustrates the need to continue educating and pressuring officials at all levels of government to give same-sex couples the full measure of equality under the law. Until that day, the fight for LGBT rights is not yet won.