By Howard Fischer | Capitol Media Services via Arizona Capitol Times
Saying biology matters, an Arizona woman is making a last-ditch effort to keep from being forced to share custody of her child with her former wife.
Keith Berkshire, attorney for Kimberly McLaughlin, is asking the U.S. Supreme Court to overturn last year’s ruling by Arizona’s high court, which concluded that Suzan McLaughlin had the same right to claim parentage as if she had been Kimberly’s husband.
In legal pleadings, Berkshire acknowledged the historic 2015 U.S. Supreme Court ruling concluding that states must extend the right to marry to same-sex couples. The justices expanded on that two years later, spelling out that same-sex couples must have access to the “constellation of benefits that the state has linked to marriage.”
But Berkshire contends nothing in either ruling requires states to ignore the biological fact that men and women are different – and that by definition, two women cannot both be the biological parent of a child born to one of them. That undermines the decision of the Arizona Supreme Court to effectively rewrite a statute, which says that only men are entitled to the presumption of “paternity” of a child born during a marriage, the attorney said.
A constitutional right to equal protection is inherent to the 2015 U.S. Supreme Court decision in Obergefell v. Hodges and the subsequent 2017 Arizona Supreme Court decision in McLaughlin v. McLaughlin. The constitutional right to equal protection and, by extension, the right to enjoy the “constellation of benefits that the state has linked to marriage” is not likely to be outweighed by the attempts to capitalize off of biologically based statutes for the purpose of facilitating inequity.