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With Barrett and Kavanaugh on the Bench, Indiana Is Banking on SCOTUS Allowing Discrimination Against Same-Sex Parents


In today’s Hoosier edition of One Step Forward, Ten Steps Back, Indiana Attorney General Curtis Hill (R) seems to be asking the U.S. Supreme Court to rule that “marriage equality” means that some marriages are still more equal than others. Indiana’s position in Box v. Henderson is as petty as it is offensive – and yet, there’s every reason to believe it’ll get a friendly reception from the U.S. Supreme Court.

The case over which parents have the right to be listed on state-issued birth certificates was initially brought by a group of eight married couples who conceived their children by using sperm donors. The problem – at least as far as Indiana is concerned – is that these couples are lesbians; the state’s position is that lesbian spouses  simply do not have the same rights that opposite-sex spouses do.

Before discussing Indiana’s insidious actions toward these families, let’s dip briefly into a quirk of family law. In Indiana, as in most states, a child born to a married woman is “presumed” to be the biological child of that woman’s husband. This “presumption of paternity” is in some ways a vestige of antiquated values; in other ways, it is a practical solution to potential legal issues. For purposes of estate law, child protection, and tort, there is often an advantage to a child “born in wedlock,” as opposed to one who is “illegitimate.” In other words, the law endeavors to create less Snows and more Starks.

Of course, a presumption of paternity can be rebutted with evidence; if a paternity test reveals that a man other than the mother’s husband is in fact the biological father, things are adjusted accordingly. Usually, state laws involving whose names appear as parents on state-issued birth certificates reflect the presumption of paternity.

Given that artificial insemination has been common practice for decades, the law has managed to keep up. In Indiana, as in most states, the designation of “parent” applies equally to biological parents and to those who consented to reproduction through artificial insemination; accordingly, Indiana’s dads are free to put their names on state birth certificates without regard for the precise road they took to fatherhood.

Things go haywire, however, if mom is married to a woman.

The same dignity afforded to husbands of artificially-inseminated mothers is not extended to a non-biological female parent. Indiana refuses to list a birth mother’s wife as a parent on a child’s birth certificate without some additional legal challenges. This outrageously disparate treatment between men and women is absurd on its face; that Indiana now seeks SCOTUS’s blessing for its blatant discrimination is vile. What’s more, the specific facts of the underlying case make the whole business even worse.

The Indiana plaintiffs are married couples who decided together to become parents. Each used a sperm donor; one spouse was artificially inseminated, became pregnant and gave birth. In one of the cases, the spouse who was not impregnanted provided an egg for the other spouse to carry – making her a genetic parent. In every case – even the case in which the birth mother’s wife provided the egg – Indiana refused to list anyone other than the birth mother on the birth certificate.  The only way for these women to officially become parents would be for them to adopt the children they’d chosen to create.

It gets even worse.

The spouses who wished to become official parents faced more than an administrative hassle. One woman, Tonya Bush-Sawyer, was married to her wife Elizabeth, since 2010. After Elizabeth gave birth to the couple’s child, Tonya was forced to pursue a stepparent adoption. This process, according to the petition for certiorari, “required her to undergo fingerprinting and a criminal background check; to submit her driving profile, financial profile, and veterinary records for any pets living in her home; and for a home study, which involved an examination of Tonya and Elizabeth’s relationship and parenting philosophy and required them to write an autobiography and open their home for inspection, all at a cost of over $4000.” All of this for something that, had Tonya been a man, would have happened automatically.

The story of married plaintiffs Noelle and Crystal Allen is differently heartbreaking. Crystal conceived via sperm donor, and became pregnant with twins who were born prematurely and passed away the same day. Noelle was not listed on the children’s birth certificate – and cannot adopt them because they are deceased. If Indiana’s law is upheld, Noelle will be permanently deprived state recognition of her parental status – a status that, once again, would have presented no legal issue had she been a man.

Sickening as the practical result of discrimination is for these and other same-sex families, the legal reality of Indiana’s position is infuriating in its own right. For starters, the Supreme Court held in Obergefell v. Hodges that same-sex couples have the right to marriage “on the same terms and conditions as opposite-sex couples.” The suggestion that Indiana’s birth-certificate law treats same-sex couples “on the same terms” as opposite-sex ones would be laughable if it weren’t so insidious.

Indiana’s brief filed with the Supreme Court Monday, has the nerve to whine about how difficult the Seventh Circuit’s decision makes things on the state:

The decision below, however, puts Indiana in a difficult position: either forgo grounding parental rights in biology (potentially violating the fundamental liberty interest of biological parents) or require a DNA test for every child, even those for whom biological parentage is uncontested. Because the Constitution does not require Indiana to make such a costly and intrusive choice, petitioners urge the Court to grant certiorari and uphold Indiana’s common-sense system for presuming the identity of biological parents at birth.

In the up-is-down world of Indiana, the Seventh Circuit’s decision “defies both common sense and the constitutional rights and obligations of biological parents.” Somehow, allowing women like Tonya Bush-Sawyer and Noelle Allen to be listed on their own children’s birth certificates would invade someone else’s constitutional rights. The logic is baffling, until Indiana just comes right out and admits its stance on same-sex relationships.

Nestled midway through the state’s brief, is the essence of its argument:

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. But a birth mother’s wife will never be the biological father of the child…

Same-sex parents, believes Indiana, will never be the same as opposite-sex ones. In fact, that logic was what had to be in play for Indiana to perpetuate this litigation in the first place. You see, the issue of same-sex parentage on state-issued birth certifiates has already been litigated ad nauseam. Indiana knows this. The Supreme Court knows this. And yet, this litigation continues.

Florida tried to pull the same nonsense with birth certificates, but was forced to back down when it became obvious that such the policy obviously violated Obergefell. Arkansas tried, too – in a case whose facts are nearly identical to the Indiana litigation — and the Supreme Court smacked it down.

Despite the obvious wrongness of Indiana’s legal position, though, it’s doubling down. Indiana appears to be banking on the current composition of SCOTUS to do its bidding. Plus, court-sanctioned bigotry may well lie in Indiana’s future – courtesy of some notable scheduling abnormalities.

Here’s the timeline.

On June 30, 2016, the District Court ruled in favor of the plaintiff couples, finding that Indiana law violated their right to equal protection and due process.

The next year, on May 22, 2017, the Seventh Circuit heard oral arguments in the case, just as SCOTUS was preparing to rule in the Arkansas case, Pavan v. Smith.

Then, the Seventh Circuit case suffered what Slate’s Mark Joseph Stern called “a mysterious delay” of 32 months.

A month after the Seventh Circuit held oral arguments, SCOTUS handed down Pavan in June 2017, which made it painfully clear that same-sex spouses must be listed on birth certificates just as opposite-sex spouses are. Nearly three years later, in January of 2020, a three-judge panel of the Seventh Circuit handed down a unanimous ruling in favor of the same-sex parents. The panel, made up entirely of conservative Republican-appointed judges, agreed that under the Obergefell and Pavan, Indiana must list same-sex parents on their child’s birth certificate when they conceive via artificial insemination.

Now, as Indiana appeals that ruling, the timing seems frighteningly strategic. Justice Anthony Kennedy is gone. Justice Ruth Bader Ginsburg is gone. Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito –the three justices who dissented in Pavan, and would have voted to erode the equality demanded by Obergefell–are on the court. They are now joined by Justices Brett Kavanaugh and Amy Coney Barrett, who are unlikely to emerge as LGBT heroes.

The Supreme Court has not yet granted certiorari in the case, but will be considering that decision at its conference on Dec. 11. As the holidays approach and the pandemic rages, SCOTUS will need to decide just how involved it will get in questions over what it means to be a family.

[image via Saul Loeb/AFP via Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos