According to this article, newly installed U.S. Supreme Court Justice Gorsuch’s dissent in Pavan v. Smith demonstrates that the U.S. Supreme Court’s Obergefell v. Hodges decision establishing the same marriage equality for same-sex couples as for opposite sex couples may be subject to future attacks.
Pavan v. Smith involved an appeal to the U.S. Supreme Court after the Courts in the State of Arkansas refused to issue birth certificates of both same-sex married parents. The U.S. Supreme Court, citing its Obergefell decision, issued an opinion that same-sex married couples must receive the same treatment as opposite sex married couples (ie., the spouse of the parent giving birth via an anonymous sperm donor can be added to the child’s birth certificate) in accordance with Obergefell. In essence, had the couples been opposite sex, the State of Arkansas would have issued the birth certificates and now must do so for same-sex couples pursuant to Obergefell.
Justice Gorsuch dissented insisting that the State had a biological reason entitling the State to the benefit of at least presenting its argument before the US Supreme Court. This dissent is troubling because opposite sex married couples who are artificially inseminated with gametes from an anonymous sperm donor (ie., wives) are permitted to have their non-biological husband added to their child’s birth certificate, but Justice Gorsuch was arguing that non-biological men should be treated differently based on the gender of the person whom they married.
This dissent signals Justice Gorsuch’s intention to (a) lead the conservative judicial movement; and (b) weaken Obergefell.