FOX: "There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis."

FOX: "There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis."

Pulaski County Circuit Judge Tim Fox today ordered the state to stop issuing birth certificates until procedures have been established to correct a process struck down as unconstitutional by the U.S. Supreme Court for discriminating against same-sex couples. Parenthood is presumed in the issuance of birth certificates to opposite-sex married copies but not to same-sex couples, which the Court found violated the equal protection clause.

The state has been dragging its feet on resolving the constitutional problem, preferring to defer to the General Assembly and wait for a legislative fix. The question is what to do until such legislation is passed (the legislature appears to be in no hurry on the matter).

Fox had previously set a deadline of Jan. 5 for the state to try to work out an agreement to accommodate same-sex parents. He had ordered the state — including Attorney General Leslie Rutledge — to participate in mediation on the matter. Rutledge responded this week by filing a motion asking the state Supreme Court for an emergency stay to halt the mediation ordered by Fox.

In response, Fox has apparently thrown up his hands, ordering the state to stop issuing birth certificates altogether until a fix is in place. He cancelled his previous mediation order: “It has come to the attention of the court that the defendant has refused to mediate utilizing the mediation parameters and framework that this court has ordered. … Whether such refusal is based in good faith or is a further delaying tactic by the defendant is immaterial. This case has been pending for over two years and it has been more than six months since the United States Supreme Court ruled the Arkansas statutory scheme unconstitutional. There are citizens and residents of the State of Arkansas whose constitutional rights are being violated on a daily basis. As the defendant is unwilling to mediate using the framework outlined by this court there is no need to further delay implementation of the United States Supreme Court’s mandate.”


The issuance of birth certificates must halt, Fox ordered, “until such time as the defendant, his successors, and assigns, are able to issue birth certificates to all same sex spouses and opposite sex spouses in accordance with the mandate from the United States Supreme Court and the Arkansas Supreme Court.”

Fox expressed hope that an executive order from Gov. Asa Hutchinson could provide the necessary fix.


John Lynch at the Democrat-Gazette reports that Fox’s order could impact more than 100 applicants per day if the state continues to drag its feet on fixing the unconstitutional procedure (update: that estimate may be low; KARK is reporting that the Department of Health issues about 500 birth certificates per day).

Presumably Rutledge will now ask the state Supreme Court for a stay to try to halt today’s order.