Tulane University Journal Publishing

Reisman, W.

English

Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics

Mostovoi, Alexei

That Obscure Object of Desire: The Decline of Informal Bargaining Over Employee Leaves in Japan

Pawlak, David

International Trade in the Americas: The Inter-American Lawyer’s Guide to Origin Determinations

Scott, Ridgeley

Taxation of Maquiladora Exchanges: The Taming of the Shrew

Lovett, William

Lessons From the Recent Peso Crisis in Mexico

Evans, Malcolm

Uniform Law: A Bridge Too Far

Jia, Wei

Tidal Changes in Chinese Foreign Investment Laws and Policies

Anderson, Ryan

Anacostia Riverkeeper, Inc. v. Wheeler: The D.C. District Court Deepens the Split over Whether the Term “Total Maximum Daily Load” Is Ambiguous

Breslaw, Amanda

145 
RECENT DEVELOPMENTS IN  
LAW AND SEXUALITY 
I. THE POST-OBERGEFELL LANDSCAPE .............................................. 145 
More Than Marriage: Supreme Court Clarifies Post-
Obergefell Marital Benefits in Pavan v. Smith ................ 145 
II. THE FAIR HOUSING ACT AND LGBT DISCRIMINATION .................. 149 
Smith v. Avanti: Paving the Way for Same-Sex Couples 
Under the Fair Housing Act ............................................. 149 
I. THE POST-OBERGEFELL LANDSCAPE 
More Than Marriage: Supreme Court Clarifies Post-Obergefell 
Marital Benefits in Pavan v. Smith 
A. Overview 
 Two same-sex married couples, Leigh and Jana Jacobs and Terrah 
and Marisa Pavan, conceived children through anonymous insemination.  
Pavan v. Smith, 137 S. Ct. 2075, 2077 (2017) (per curium).  In 2015, 
Leigh Jacobs and Terrah Pavan gave birth to two babies in Arkansas.  Id.  
While the Arkansas Department of Health (ADH) listed the two birth 
mothers on the birth certificates, the ADH did not recognize Jana Jacobs 
or Marisa Pavan, the spouses of the birth mothers.  Id.  Using Arkansas 
Code section 20, the ADH determined that the spouses were not 
“husbands” as required by the statute.  Id.; ARK. CODE ANN. § 20-18-
401(f)(1) (West 2014) (“If the mother was married at the time of either 
conception or birth or between conception and birth the name of the 
husband shall be entered on the certificate as the father of the child.”). 
 The two families sued the director of the ADH, asserting that the 
state’s refusal to recognize both spouses on the birth certificates was a 
violation of their constitutional rights.  Pavan, 137 S. Ct. at 2077.  Ruling 
on a motion for summary judgment, the Sixth Division Circuit Court of 
Arkansas agreed and held that the Arkansas code was “inconsistent with 
Obergefell” because it prohibited same-sex married couples from 
enjoying the same benefits available to opposite-sex married couples.  Id. 
(citing Petition for Writ of Certiorari at 59a, Pavan v. Smith, 137 S. Ct. 
2075 (2017) (NO. 16-992)).  On appeal, the Arkansas Supreme Court 
reversed the trial court’s judgment, ruling that the statute did not “run 
 
 
 
 
146 LAW & SEXUALITY [Vol. 27 
 
afoul of Obergefell” because it “center[ed] on the relationship of the 
biological mother and the biological father to the child, not on the marital 
relationship of husband and wife.”  Id. (quoting Smith v. Pavan, 505 
S.W.3d 169, 178 (Ark. 2016)).  The Jacobses and Pavans successfully 
petitioned the United States Supreme Court for a writ of certiorari.  Id. at 
2079.  The United States Supreme Court held that Arkansas granted a 
legal benefit upon birth certificates available to married parents and, 
inconsistent with Obergefell, denied same-sex couples this benefit linked 
to marriage.  Pavan v. Smith, 137 S. Ct. 2075 (2017) (per curiam). 
B. Background 
 The United States Supreme Court has continuously held that 
marriage is a fundamental right protected by the Constitution.  
Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (citing Loving v. 
Virginia, 388 U.S. 1, 12 (1967); Zablocki v. Redhail, 434 U.S. 374, 384 
(1978); Turner v. Safley, 482 U.S. 78, 95 (1987)).  In Obergefell v. 
Hodges, the United States Supreme Court held that under the Due 
Process and Equal Protection Clauses of the Fourteenth Amendment, 
same-sex couples are entitled to the same fundamental rights to marriage 
as opposite-sex couples.  Id. at 2604-05.  The Court held that states were 
required to grant marriages to same-sex couples and recognize same-sex 
marriages lawfully performed in other states.  Id. at 2607-08.  
 States have long provided married couples with an extensive list of 
legal and social benefits.  Recognition on birth certificates is merely one.  
Id. at 2601.  Over a thousand federal provisions relate to the recognition 
of marriage under state law and yet, prior to the Court’s decision in 
Obergefell, “same-sex couples [were] denied the constellation of benefits 
that the States have linked to marriage.”  Id.  The Court in Obergefell 
further held that the relevant state laws challenged by the petitioners were 
unconstitutional “to the extent they exclude[d] same-sex couples from 
civil marriage on the same terms and conditions as opposite-sex 
couples.”  Id. at 2605.  However, this holding applied in force to more 
than those state laws challenged by the petitioners; Obergefell means that 
married same-sex couples are entitled to all benefits linked to marriage 
that have been afforded to opposite-sex couples.  Id. at 2607 (“The 
Constitution, however, does not permit the State to bar same-sex couples 
from marriage on the same terms as accorded to couples of the opposite 
sex.”). 
 
 
 
 
2018] RECENT DEVELOPMENTS 147 
 
C. Court’s Decision 
 In Pavan, the United States Supreme Court reversed summary 
judgment in favor of the director of the Arkansas Department of Health 
and held that section 20 of the Arkansas Code denied same-sex married 
couples access to the benefits linked to marriage.  Pavan, 137 S. Ct. 
2075.  The Court invoked the guiding principle of Obergefell: state laws 
must not treat same-sex couples differently from opposite-sex couples.  
Id. at 2078 (citing Obergefell, 135 S. Ct. at 2605).  Recognizing that 
Arkansas utilizes a birth certificate as a legal device linked with 
marriage, the Court held that the state did not afford the same legal 
benefits of this device to married same-sex couples when compared to 
married opposite-sex couples.  Id. at 2078-79.  
 At the outset, the Court reiterated the holding of Obergefell: same-
sex couples are entitled to marriage “on the same terms and conditions as 
opposite-sex couples.”  Id. at 2076 (quoting Obergefell, 135 S. Ct. at 
2605).  Recognizing that marriage encompasses more than the act of 
civil marriage, the Court maintained that marriage includes “access to 
the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage.’”  
Id. at 2078 (quoting Obergefell, 135 S. Ct. at 2601).  The Court cited the 
list of examples of benefits linked to marriage in Obergefell, in which the 
Obergefell Court “expressly identified” birth certificates.  Id. (citing 
Obergefell, 135 S. Ct. at 2601).  Furthermore, the Court referenced 
several of the Obergefell plaintiffs, who similarly challenged “a State’s 
refusal to recognize their same-sex spouses on their children’s birth 
certificates.”  Id. (citing DeBoer v. Snyder, 772 F.3d 388, 398-99 (6th Cir. 
2014), rev’d, Obergefell v. Hodges, 135 S. Ct. 2584 (2015)).  The Court 
maintained that these state laws were held unconstitutional in Obergefell 
because “they treated same-sex couples differently from opposite-sex 
couples.”  Id. (citing Obergefell, 135 S. Ct. at 2605).  Thus the Court 
determined that the holding related to the invalid state laws in Obergefell 
applied to Arkansas Code section 20.  Id.  
 The Court dismissed the State’s argument that a birth certificate is 
merely a device to record the biological parentage of a child and not a 
benefit linked with marriage.  Id.  The Court recognized that the State’s 
biological reasoning was contradicted by Arkansas Code sections 9 and 
20.  Id.  Under Arkansas law, when a married opposite-sex couple 
conceives a child by anonymous insemination, the birth mother’s 
husband must be placed on the birth certificate, despite the husband not 
being the biological father.  Id. (citing ARK. CODE ANN. § 20-18-
401(f)(1) (West 2014); ARK. CODE ANN. § 9-10-201(a) (West 2014)).  
 
 
 
 
148 LAW & SEXUALITY [Vol. 27 
 
This legal recognition on the birth certificate is not afforded to unmarried 
parents, and the Court thus concluded that Arkansas attaches a legal 
benefit linked to marriage to birth certificates.  Id. at 2078-79.  
Furthermore, the Court reasoned that this legal recognition afforded to a 
married, nonbiological father is not similarly afforded to a birth mother’s 
same-sex spouse.  Id. at 2078.  Thus, the Court determined that the 
State’s biological parentage rationale was inadequate, and that the statute 
treated married same-sex parents differently from married opposite-sex 
parents when conferring a legal benefit linked to marriage.  Id.  
D. Analysis 
 The Supreme Court correctly reversed the summary judgment of 
the Arkansas Supreme Court.  The per curiam opinion reinforced 
Obergefell’s holding that married same-sex couples are entitled to the 
same “constellation of benefits that the Stat[e] ha[s] linked to marriage” 
for opposite-sex couples.  Id. (quoting Obergefell, 135 S. Ct. at 2601).  
These benefits now afforded to married same-sex couples include the 
extensive list of legal and social benefits provided by states and the more 
than one thousand federal provisions already applicable to married 
opposite-sex couples.  Obergefell, 135 S. Ct. at 2601.  Courts throughout 
the United States have followed the settled jurisprudence of the Supreme 
Court in Obergefell and granted same-sex couples access to these newly 
acquired marriage benefits.  See McLaughlin v. Jones, 401 P.3d 492, 494 
(Ariz. 2017) (holding that the presumption of marital paternity for 
children’s birth certificates is a benefit of marriage and should therefore 
be afforded equally to same-sex spouses).  However, seeds of doubt in 
this jurisprudence are already seeping into the legal system.  See Pidgeon 
v. Turner, No. 15-0688, 2017 WL 2829350 (Tex. June 30, 2017) (ruling 
that Obergefell “did not hold that states must provide the same publicly 
funded benefits to all married persons”).  Therefore, advocates and 
judges steadfastly committed to the equal treatment of same-sex couples 
under the laws are still necessary to combat the critics and skeptics of 
Obergefell.  
Eric Novak 
 
 
 
 
2018] RECENT DEVELOPMENTS 149 
 
II. THE FAIR HOUSING ACT AND LGBT DISCRIMINATION  
Smith v. Avanti: Paving the Way for Same-Sex Couples 
Under the Fair Housing Act 
 In Smith v. Avanti, a Colorado District Court ruled in favor of a 
same-sex married couple against a landlord who refused to rent them one 
of her available townhomes based on one of the plaintiffs’ transgender 
status, the plaintiffs’ “unique relationship,” and their familial status.  
Smith v. Avanti, 249 F. Supp. 3d 1194, 1201-03 (D. Colo. 2017).  Rachel 
Smith and her wife Tonya (the Smiths) along with their two children, 
both of whom are minors, were told that their landlord was selling the 
place they were renting, which left the plaintiffs scrambling to find a new 
home.  Tonya Smith saw an advertisement on Craigslist about an 
available townhome, so she emailed the owner, Avanti, to schedule a 
showing.  In their emails, Tonya discussed her family and the fact that her 
wife, Rachel, is transgender.  Ms. Avanti told Tonya about the available 
townhouse, asked for photographs of the family, and scheduled a tour.  
After the tour, Ms. Avanti emailed the Smiths twice.  In the first email, 
she explained that the Smith Family could not rent from her because of 
her concern about the “noise” associated with having children move in.  
Id. at 1198.  In the second email, she said she could not rent to them 
because she wanted to keep a “low profile,” which she later explained 
meant the Smiths’ “unique relationship” would interfere with her family’s 
low profile in the community.  As a result of Avanti’s denial, the Smiths 
were forced to rent a house that was in a worse school district and much 
farther from Rachel’s work than the defendant’s townhome.   
 The Smiths filed a lawsuit against the defendant on five counts.  Id. 
at 1198.  The first and second claims alleged discrimination based on sex 
and familial status in violation of the Fair Housing Act.  Id.; 42 U.S.C. 
§ 3604(a) & (c) (1988).  The Smiths’ third, fourth, and fifth claims 
alleged discrimination based on sex, sexual orientation, and familial 
status, respectively, in violation of the Colorado Anti-Discrimination Act 
(CADA).  Smith, 249 F. Supp. 3d at 1198; Colo. Rev. Stat. § 24-34-502 
(2014).  The Smiths moved for summary judgment as to liability on all 
counts; their motion was unopposed, and the only issue was whether the 
plaintiffs met their burden of production and demonstrated that they were 
legally entitled to summary judgment under Federal Rule of Civil 
Procedure 56.  The U.S. District Court for the District of Colorado held 
that the plaintiffs were entitled to summary judgment on all counts.  
Smith, 249 F. Supp. 3d at 1203. 
 
 
 
 
150 LAW & SEXUALITY [Vol. 27 
 
 In its reasoning, the court extended the rule from Price Waterhouse 
beyond employment discrimination to cover discrimination based on an 
individual’s nonconformity with gender stereotypes in the housing 
context as well.  Smith, 249 F. Supp. 3d at 1200-01; see Price Waterhouse 
v. Hopkins, 490 U.S. 228 (1989).  The court had several different 
holdings.  Smith, 249 F. Supp. 3d at 1200-03.  First, the court held that 
owning a single-family house does not exempt someone from the Fair 
Housing Act’s (FHA) antidiscrimination provisions.  Id.  The court also 
held that emails sent from a prospective landlord to prospective tenants 
constituted “statements,” which are unlawful when they show preference 
or discriminate against a person’s protected status.  Id.  Third, the court 
held that Avanti discriminated against the Smiths based on their sex, and 
therefore violated the FHA and CADA by refusing to rent to them 
because of their “unique relationship” and their family’s “uniqueness.”  
Id. at 1201.  Also, the court held that Avanti violated the FHA and CADA 
when she discriminated against the Smiths based on their familial status.  
Id. at 1201-02.  Finally, the court chose to include not only the Smiths’ 
sexual orientation but also Rachel’s transgender status as protected 
classes under CADA.  Id. at 1202-03. 
 This court’s decision to expand Title VII protections to the FHA sets 
a new precedent that property owners cannot discriminate against tenants 
(future or current) based on their failure to conform to stereotypes based 
on sexual orientation and transgender status.  If other courts start 
applying this holding to all FHA cases, landlords and property owners 
will not be able to discriminate in the housing market based on a person’s 
sexual orientation or transgender status when choosing tenants.  When 
deciding whether a same-sex couple is protected under the FHA when 
someone refuses to lease/rent/sell to them, the court looked to the rule 
from Price Waterhouse that discriminating against a person for failing to 
conform to gender stereotypes is a violation of Title VII.  Id.; see Price 
Waterhouse, 490 U.S. 228.  Similarly, in Avanti, the court determined 
that the Smiths were discriminated against for their failure to conform to 
gender stereotypes of how women should act and whom they should 
marry, and by analyzing the case using Title VII precedent, held that the 
Smiths had suffered sex discrimination under the FHA.  Id.  
 While recent decisions like the repeal of Don’t Ask, Don’t Tell, the 
Affordable Care Act’s prohibition on discrimination against LGBT 
individuals by insurers, and Obergefell v. Hodges have helped expand 
LGBT rights, these holdings are not binding on all areas of the law.  
Similarly, the Smith decision demonstrates the limitations of expanding 
civil rights through judicial decisions.  The Smith court only expanded 
 
 
 
 
2018] RECENT DEVELOPMENTS 151 
 
protections to people who do not conform to sex stereotypes.  Id. at 
1200-01.  It did not expand protection to same-sex couples facing 
discrimination based on their sexual orientation.  If courts can find that 
nonconformity based on sex stereotypes is protected under Title VII and 
Title VIII, then they should also find that sexual orientation is protected.  
There is no difference in saying that a same-sex couple is protected 
because you cannot discriminate against them based on their 
nonconformity to stereotypical norms of a woman marrying a man but 
then say that you can discriminate against a same-sex couple based on 
their being married to or attracted to one another.  Otherwise, LGBT 
individuals who do conform to gender stereotypes fall through the 
cracks.  
 While the Tenth Circuit refused to extend Title VII and Title VIII 
protections to discrimination based on a person’s sexual orientation, 
some state statutes, like CADA, which was litigated in Avanti, do include 
sexual orientation.  COLO. REV. STAT. § 24-34-301(7) (2014).  Moreover, 
some circuits have started holding that sexual orientation discrimination 
is covered by the “sex” category of Title VII.  In 2017, the Seventh 
Circuit Court of Appeals ruled that it is a violation of federal civil rights 
to discriminate against someone based on their sexual orientation.  
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 351-52 
(7th Cir. 2017) (holding that “a person who alleges that she experienced 
employment discrimination on the basis of her sexual orientation has put 
forth a case of sex discrimination for Title VII purposes”).  In 2018, the 
Second Circuit Court of Appeals also held that it is a violation of Title 
VII to discriminate against someone based on their sexual orientation.  
Zarda v. Altitude Express, Inc., No. 15-3775, 2018 WL 1040820, at *20 
(2d Cir. Feb. 26, 2018).  While the court in Avanti declined to address 
sexual orientation, holdings like Hively and Zarda have paved the way for 
more judicial determinations that sexual orientation discrimination is 
prohibited not only by Title VII but the FHA as well.  In its own way, 
Avanti is also an important step toward prohibiting all discrimination on 
the basis of sexual orientation, because of its extension of Title VII 
precedent prohibiting gender identity discrimination to the FHA.  
Hopefully, when faced with the same issue, other judges will be 
influenced by this holding.  
Amanda Breslaw 


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