from the Superior Court in Pima County The Honorable Lori B.
Jones, Judge Pro Tempore No. DC20130015 AFFIRMED
of the Court of Appeals, Division Two 240 Ariz. 560 (App.
Berkshire (argued), Erica L. Gadberry, Berkshire Law Office
PLLC, Phoenix, Attorneys for Kimberly McLaughlin
Shannon Minter (argued), Emily Haan, Catherine Sakimura,
National Center for Lesbian Rights, San Francisco, CA; and
Claudia D. Work, Campbell Law Group Chartered, Phoenix,
Attorneys for Suzan McLaughlin
Barbara A. Atwood, Professor of Law Emerita, Director, Family
and Juvenile Law Certificate Program, Paul D. Bennett,
Clinical Professor and Director, Child and Family Law Clinic,
Negar Katirai, Director, Community Law Group, and Jason
Buckner, Natalie Cafasso, and Chris Lloyd, Rule 38(d)
Certified Law Students, Child and Family Law Clinic, The
University of Arizona, Tucson, for Amici Curiae Child and
Family Law Clinic, The University of Arizona James E. Rogers
College of Law
Cooper, American Civil Liberties Union Foundation, New York,
NY; and Kathleen E. Brody, American Civil Liberties Union
Foundation of Arizona, Phoenix, Attorneys for Amici Curiae
American Civil Liberties Union and American Civil Liberties
Union of Arizona
R. Woodnick, Markus W. Risinger, Woodnick Law PLLC, Phoenix,
Attorneys for Amicus Curiae Arizona Family Law Practitioners
JUSTICE BALES authored the opinion of the Court, in which
JUSTICES BRUTINEL and TIMMER and JUDGE JONES joined [*] . JUSTICE LOPEZ,
joined by VICE CHIEF JUSTICE PELANDER, concurred. JUSTICE
BOLICK concurred in part and dissented in part.
Under A.R.S. § 25-814(A)(1), a man is presumed to be a
legal parent if his wife gives birth to a child during the
marriage. We here consider whether this presumption applies
to similarly situated women in same-sex marriages. Because
couples in same-sex marriages are constitutionally entitled
to the "constellation of benefits the States have linked
to marriage, " Obergefell v. Hodges, 135 S.Ct.
2584, 2601 (2015), we hold that the statutory presumption
applies. We further hold that Kimberly McLaughlin, the birth
mother here, is equitably estopped from rebutting her spouse
Suzan's presumptive parentage of their son.
The facts are not in dispute. In October 2008, Kimberly and
Suzan, a same-sex couple, legally married in California.
After the couple decided to have a child through artificial
insemination, Suzan unsuccessfully attempted to conceive
using an anonymous sperm donor. In 2010, Kimberly underwent
the same process and became pregnant.
¶3 During the pregnancy, Kimberly and
Suzan moved to Arizona. In February 2011, they entered a
joint parenting agreement declaring Suzan a
"co-parent" of the child. The agreement
specifically states that "Kimberly McLaughlin intends
for Suzan McLaughlin to be a second parent to her child, with
the same rights, responsibilities, and obligations that a
biological parent would have to her child" and that
"[s]hould the relationship between [them] end . . . it
is the parties [sic] intention that the parenting
relationship between Suzan McLaughlin and the child shall
continue with shared custody, regular visitation, and child
support proportional to custody time and income."
Kimberly and Suzan also executed wills declaring Suzan to be
an equal parent.
In June 2011, Kimberly gave birth to a baby boy, E. While
Kimberly worked as a physician, Suzan stayed at home to care
for E. When E. was almost two years old, Kimberly and
Suzan's relationship deteriorated to the point that
Kimberly moved out of their home, taking E. and cutting off
Suzan's contact with him.
Consequently, in 2013, Suzan filed petitions for dissolution
and for legal decision-making and parenting time in loco
parentis. During litigation, Suzan challenged the
constitutionality of Arizona's refusal to recognize
lawful same-sex marriages performed in other states, and
pursuant to A.R.S. § 12-1841, provided notice to the
State of her constitutional challenge. The State intervened
in the litigation.
After the Supreme Court held in Obergefell that the
Fourteenth Amendment to the United States Constitution
guarantees same-sex couples the fundamental right to marry,
the State withdrew as a party, and the trial court ordered
the case to proceed as a dissolution of marriage action with
children because Suzan was a presumptive parent under A.R.S.
§ 25-814(A)(1). Based on Obergefell, the court
reasoned that it would violate Suzan's Fourteenth
Amendment rights not to afford her the same presumption of
paternity that applies to a similarly situated man in an
opposite-sex marriage. Additionally, the court held that
Kimberly could not rebut Suzan's presumptive parentage
under A.R.S. § 25-814(C) because permitting rebuttal
would allow a biological mother to use the undisputed fact of
a consensual, artificial insemination to force the
non-biological parent to pay child support under A.R.S.
§ 25-501(B) while denying that same non-biological
parent any parental rights. See A.R.S. §
25-501(B) ("A child who is born as the result of
artificial insemination is entitled to support from the
mother as prescribed by this section and the mother's
spouse if the spouse either is the biological father of the
child or agreed in writing to the insemination before or
after the insemination occurred.").
Kimberly sought special action review in the court of
appeals. That court accepted jurisdiction but denied Kimberly
relief, concluding that, under Obergefell, §
25-814(A) applies to same-sex spouses and that Suzan is the
presumptive parent. McLaughlin v. Jones, 240 Ariz.
560, 564 ¶ 14, 565-66 ¶ 19 (App. 2016). The court
also reasoned that Kimberly was equitably estopped from
rebutting Suzan's presumption of parentage under §
25-814(C). Id. at ¶ 20.
After the court of appeals issued its decision, another
division of the court reached a contrary result in a
different case. See Turner v. Steiner, 242 Ariz. 494
(App. 2017). A divided panel concluded that a female same-sex
spouse could not be presumed a legal parent under §
25-814(A)(1) because the presumption is based on biological
differences between men and women and Obergefell
does not require courts to interpret paternity statutes in a
gender-neutral manner. Id. at 498-99 ¶¶
15-18. The dissenting judge argued that Obergefell
mandates a gender-neutral interpretation of §
25-814(A)(1) and that affording equal rights of parentage
would foster, instead of disrupt, the permanency and
stability important to a child's best interest.
Id. at 901 ¶ 25 (Winthrop, J., dissenting).
We granted review because the application of §
25-814(A)(1) to same-sex marriages after Obergefell
is a recurring issue of statewide importance. We have
jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
We review the constitutionality and interpretation of
statutes de novo. State v. Stummer,219 Ariz. 137,
141 ¶ 7 (2008). "[T]he words of a statute are to be
given their ordinary meaning unless it appears from the
context or otherwise that a different ...