At 10 a.m. on Tuesday, Sept. 19, the Arizona Supreme Court released an opinion on McLaughlin vs. Jones (McLaughlin). Natalie Cafasso's mother cried when she received a picture of the front page of the opinion via text message, and by 10:02 a.m., Chris Lloyd's phone was buzzing with congratulations from his peers at the University of Arizona's James E. Rogers College of Law.
The UA students were celebrating the fact that the court's opinion fell on the side of the amicus brief they had filed. Cafasso and Lloyd, along with fellow student Jason Buckner and UA faculty members Barbara Atwood, Child and Family Law Clinic director Paul Bennett and Negar Katirai, researched and wrote the brief as amici curiae, or friends of the court, representing the UA Child and Family Law Clinic.
McLaughlin challenged the Arizona marital presumption of paternity statute (ARS 25-814(A)(1)) as it applies to same-sex couples. Two women, Kimberly and Suzan, married, entered into a joint-parenting agreement and had a child through artificial insemination. When their relationship ended, Suzan, the non-biological mother, was denied contact with the child. Citing the marital presumption of paternity, she filed for decision-making and visitation rights as a parent of the child.
The trial court ruled in Suzan's favor, but Kimberly, the biological mother, appealed. The court of appeals also decided for Suzan. With a similar case pending in another appeals court, the Arizona Supreme Court decided to grant review on "a recurring issue of statewide importance." The other appeals court ultimately ruled the other way, just days before the Arizona Supreme Court announced its decision.
"We thought this was a really compelling case," said Katirai, who teaches family law, supervises students in the Child and Family Law Clinic and is director of the UA's Community Law Group. "When you look at it from the child's perspective, it takes it out of the polarized discourse that we sometimes see on same-sex marriage issues. Instead, it becomes about the children involved and talking about what's in their best interest."
After the Arizona Supreme Court accepted the case, Atwood, a UA professor of law emerita, received a request to submit an amicus brief. Many times, amicus briefs are filed to raise awareness about an aspect of the case the court might not otherwise consider.
"Our interest is really in the way the law impacts children," Atwood said. "We weren't arguing on behalf of one party of the other, although our position certainly favored the claims of the non-biological mother. We were trying to advance a vision of the law that would protect children's interests in predictability and continuity, in having two parents as opposed to one parent, and those sorts of rationales. We were trying to emphasize how a ruling would impact children in general."
Making a difference in the lives of families and children is the goal of many UA students, especially those who work in the Child and Family Law Clinic. Providing them with those experiences while still in law school is one of the many benefits of the clinic and outside projects such as amicus briefs.
Cafasso, Lloyd and Buckner benefited from an earlier amicus brief also written by UA students and faculty and filed when the court of appeals heard McLaughlin. With a solid starting point, the students began strengthening their arguments. Lloyd and Buckner, who both graduated last year, focused their research on the potential effects a ruling in favor of the biological mother, Kimberly, could have on the child.
"A lot of what I did was on the kid's side," said Lloyd, a fellow at the UA's Domestic Violence Clinic and Family Law Group. "We looked into things like child support. We asked questions like how do you interplay this case with the juvenile system? We already have a mechanism for removing a parent and it's not divorce — there are other ways to do it. What effect does it have if you take one parent away? What happens, psychologically and sociologically, if you take the kid away from their particular support system? Those are the things I looked into."
Cafasso's research focused on Arizona statutes, especially as they related to the U.S. Supreme Court's decision in Obergefell v. Hodges. That landmark 2015 case guaranteed same-sex couples the right to marry under the Due Process Clause and Equal Protection Clause of the 14th Amendment.
"My portion of the brief focused on reading the Arizona marital presumption statute gender neutrally and as a benefit of marriage, which should be a benefit to same-sex and opposite-sex couples," Cafasso said. "I focused heavily on Obergefell and how the United States Supreme Court decision discussed preserving strong family units, and that children of same-sex couples should have the same stability, predictability and family recognition children of opposite(-sex) couples have."
The U.S. Supreme Court released an opinion on Pavan v. Smith, another case regarding same-sex couples, on June 26, 2017, the day before the Arizona Supreme Court heard oral arguments in McLaughlin. The Pavan decision afforded same-sex couples the same "constellation of benefits" of marriage as opposite-sex couples, including the right to place both parents' names on a child's birth certificate.
"It was very exciting to be in the courtroom as they were debating whether that case (Pavan) governed this case (McLaughlin)," said Atwood, who accompanied Cafasso, Lloyd and Buckner to Phoenix to listen to the oral arguments in front of the Arizona Supreme Court. "It was a great learning experience. When you are learning constitutional law or family law, you learn it and you recite it back on an exam. It's kind of dry. By writing the amicus brief in McLaughlin, the students were using these doctrines and applying them in a setting for which the Arizona laws had not been drafted. It was creative lawyering that would make a difference in the real world."
"I took on the task of writing the brief with my fellow students because I wanted to advocate for children," said Cafasso, who transferred from the Maurice A. Deane School of Law at Hofstra University in New York last year specifically because of the UA's family law program. "The University of Arizona is one of the very few law schools in the country that has a clinic that is catered to representing children. That's why I transferred here, for the clinics and for this type of work. I have experienced everything I thought I would and so much more."