ABOVE: SCOTUS, Washington Blade file photo boy Michael Key.
The U.S. Supreme Court, which many predicted would roll back LGBTQ rights with its new 6-3 conservative majority, has turned down a request to hear a case that would have undercut the guarantee of full marriage equality for same-sex couples nationwide.
In its orders list Dec. 14, the court without explanation signaled it had denied certiorari in the case, known as Box v. Henderson, which seeks to undermine the Obergefell v. Hodges decision in terms of birth certificates for children born to lesbian parents.
Despite the widely held perception marriage equality for LGBTQ families is settled law and beyond any challenge, the question before the the court was squarely framed as challenge to same-sex marriage and asked the court to “take this case to address whether Indiana’s paternity-presumption law is consonant with Obergefell.”
The petition, which had been pending since June, was an early test for newly confirmed U.S. Associate Justice Amy Coney Barrett, whom many feared would undermine LGBTQ rights from the bench given her publicly stated religious views against same-sex marriage.
Barrett’s views on the petition, however, aren’t known. It takes of vote at least four justices to agree to take up a case, but the recorded tally for any petition isn’t publicly recorded.
The petition was filed by the state of Indiana, which sought in cases of children born to same-sex parents who are women to refuse to place the name of a non-birth mother on the child’s birth certificate, even if the two same-sex parents in the relationship are married to each other.
In a filing before the Supreme Court on Nov. 23, Indiana Attorney General Curtis Hill contended “common sense” should allow states to presume the child born to lesbian parents had a biological father.
“In the vast majority of cases, a birth mother’s husband will, in fact, be the biological father of the child, with all the rights and obligations attendant thereto,” Hill writes. “But a birth mother’s wife will never be the biological father of the child, meaning that, whenever a birth-mother’s wife gains presumptive ‘parentage’ status, a biological father’s rights and obligations to the child have necessarily been undermined without proper adjudication.”
The state of Indiana has continuously failed in convincing courts to agree to its demands. State courts had ruled the state must place the names of both lesbian parents on their children’s birth certificates consistent with Obergefell. When the case reached the U.S. Seventh Circuit Court of Appeals, the appellate court affirmed those decisions and concluded the law must be applied the same for different-sex and same-sex parents.
In an opposition brief to the Supreme Court on Nov. 10, lawyers with the National Center for Lesbian Rights and other attorneys maintained the Seventh Circuit “correctly construed state law.”
“Based on its analysis of Indiana statutes and case law, the court of appeals found that Indiana law affords a birth mother’s husband the right to be listed on the birth certificate of a child born during the marriage, including when a child is born through donor insemination and it is known that the husband is not the child’s biological parent,” the brief says. “Having made that determination, the court of appeals held that…the same rule must be applied to married same-sex couples.”
The U.S. Supreme Court explicitly addressed the issue of birth certificates in the landmark 2015 Obergefell decision, determining same-sex couples are entitled to the “constellation of benefits” of marriage, including the issue of birth certificates for their children.
After all, Obergefell was a consolidation of several lawsuits seeking marriage rights for same-sex couples on different grounds. Among them was Henry v. Wymylso, which involved four lesbian couples in Ohio seeking to have their names listed on the birth certificates of their children.
Just two years later, the Supreme Court had affirmed Obergefell applies to birth certificates in a separate case. In Pavan v. Smith, Arkansas challenged the decision as it pertains to birth certificates by refusing to place the name of the non-birth mother on the birth certificate of a child born to lesbian parents via an anonymous sperm donor.
In summary reversal to decisions against the parents in Arkansas state court, the Supreme Court affirmed Obergefell applies to birth certificates to child with same-sex parents (U.S. Associate Justice Neil Gorsuch, however, wrote a stinging dissent, concluding “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”)
Hill, however, wrote in his Nov. 23 filing neither Obergefell nor Pavan applies to the issue at hand. Indiana was challenging having to place the names of both lesbian mothers on their children’s birth certificates in a different way, Hill writes, because the cases presented involve situation in which the identity of a birth father is known, not an anonymous donor as with Pavan.
“The question presented to the court in this case is therefore distinct from the question presented in Pavan, where all parties agreed that ‘the requirement that a married woman’s husband appear on her child’s birth certificate applies in cases where the couple conceived by means of artificial insemination with the help of an anonymous sperm donor,’” Hill writes. “Indiana does not require, or even lawfully permit, the birth mother’s husband to be on the birth certificate as a matter of presumption in such circumstances.”
Based on the Supreme Court’s decision to turn down the challenge, however, justices appeared to have signaled the cases are no different and reaffirmed Obergefell and Pavan’s guarantee same-sex parents to have their names on the birth certificates of their children.
Drew Anderson, spokesperson for the Indiana Democratic Party, chided Indiana state officials for seeking to challenge parental rights for same-sex couples in the first place.
“The U.S. Supreme Court has now made it clear to everyone that LGBTQ Hoosiers should have the same God-given privileges as everyone else, which includes having job security, getting married, and starting a family with the person they love,” Anderson said. “The Indiana GOP is still not long-removed from the days of Mike Pence and RFRA, and we suggest Hoosier Republicans get with the times and stop creating useless political theater that does nothing but destroys our trust and divides the state.”
