PHOENIX — Arizona's highest court on Tuesday struggled how to balance U.S. Supreme Court rulings requiring equal treatment for married gay couples with a state law that doesn't recognize the parental rights of a lesbian woman who is divorcing her spouse.
A lower court decided in October that that Suzan McLaughlin is entitled to the same parental rights as if she were a man to the couple's now 7-year-old son. He was born through artificial insemination.
Details of how to define parenting and the raft of other issues stemming from legal gay marriage have been working their way through many state courts since the nation's high court legalized gay marriage in 2015.
Artificial insemination cases raise even more difficult issues. Several states, including New Mexico, Washington and Nevada, allow women or men who consent to another woman's insemination to be legally considered the child's parent, even if the couple is not married, according to the National Center for Lesbian Rights. Arizona isn't one of them.
Early this month, the Idaho Supreme Court denied custody and visitation rights to a gay woman who raised a child with her former partner in a decision that reflected state laws that have not been updated since same-sex marriage was legalized.
In Arizona, Kimberly McLaughlin is appealing. Her attorney said Arizona law doesn't establish any rights in artificial insemination cases for the non-biological parent of the same sex.
"Paternity and parenting aren't synonyms," attorney Keith Berkshire told the Arizona Supreme Court. "The simple reality is Arizona doesn't have an artificial insemination statute."
Because of that, the legal standard is the state's presumptive parentage law, which simply says a child is presumed to be the offspring of a man if he was married to the woman within 10 months of the child's birth. That's not the case here, Berkshire said, and justices should overturn the lower court ruling letting the McLaughlins' divorce proceed as if Suzan was the boy's parent.
Arizona Supreme Court justices struggled with that interpretation. And Justice Clint Bolick noted that the U.S. Supreme Court on Monday ruled in an Arkansas case that equal treatment for gay and straight parents is required by the Constitution. The high court ruled in that case for same-sex couples who complained that an Arkansas birth certificate law discriminated against them. They said a state supreme court decision denied married same-sex couples access to the "constellation of benefits that the state has linked to marriage."
"The U.S. Supreme Court must have known that we were going to have this argument," Bolick said.
He pressed Suzan McLaughlin's attorney, Shannon Minter of the National Center for Lesbian Rights, about how the court could fix the problem without invading "the Legislature's domain."
"When a statute has a term ... that unconstitutionally excludes a group of people, then those two choices are you either strike it in its entirety or invalidate the unconstitutional exclusion," Minter said. "The court does that all the time."
"But you can't change that one word here," Bolick noted. "Wouldn't you be left with a very bizarre statute talking about biology in one instance and marital presumptions in another?"
Chief Justice Scott Bales seemed to offer a third solution at the end of the session: Just order lower courts to consider paternity of lesbian couples with a child born through artificial insemination the same as if they were a heterosexual couple.
In Arizona, the Republican-controlled Legislature has shelved every effort to update state laws to reflect the realities of gay marriage. The Republican top prosecutor in Maricopa County and the pro-family group Center for Arizona Policy argue that the U.S. Supreme Court decision isn't as wide-ranging as gay marriage proponents contend it is.
The court took the case argued Tuesday under advisement and will issue a ruling later.