By Howard Fischer | Capitol Media Services via Arizona Capitol Times
Saying lawmakers wrote what they meant, the state Court of Appeals ruled Thursday that the same-sex spouse of a woman who gave birth to a child is not entitled to a presumption she is a parent.
In what could be a significant setback for gay rights, the court said the law on paternity “clearly and unambiguously provides that it applies solely to men.” And Judge Randall Howe, writing for the majority, said judges are powerless to change that, even in the face of the historic 2015 U.S. Supreme Court ruling, which said gays are legally entitled to marry.
“Given their ordinary means, ‘man’ means ‘an adult male human being’ and ‘father’ means ‘the male parent of a child,’ ” Howe wrote. “Each of these words is gender-specific to males and not applicable to females.”
“The Court of Appeals’ decision employs a narrow reading of the 2015 United States Supreme Court ruling determining that marriage between same sex partners is a fundamental right under the Constitution. That narrow reading may have far reaching implications. Not only does the Court of Appeals’ ruling potentially run afoul of the doctrine of federal preemption, but also, in premising its decision upon the gender specific nature of certain state laws, gives rise to equal protection concerns.