The U.S. Supreme Court has refused to review a ruling by the 7th Circuit Court of Appeals in Henderson v. Box, 947 F.3d 482 (2020), that the state of Indiana must extend to married lesbian couples the same parentage presumption it applies to married different sex couples: that a birth mother’s spouse is presumed to be a parent of her child, that the child be deemed born “in wedlock,” and that both mothers be named as parents on the birth certificat. On December 14, the Supreme Court denied the State of Indiana’s petition to review that ruling without explanation or any dissent. Box v. Henderson, 2020 WL 7327836 (Dec. 14, 2020).
On one hand, this action might be seen as routinely expected, because the Supreme Court decided a similar case from Arkansas exactly this way in 2017. In Pavan v. Smith, 137 S. Ct. 2075, the Court voted 6-3 to reverse a decision by the Arkansas Supreme Court. That opinion was issued per curiam, although a close reading would identify the hand of Justice Anthony M. Kennedy, Jr., author of the Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court not only said that same-sex couples have a constitutional right under the 14th Amendment to marry, but also that such marriages must be treated by the states as equal in every respect to the marriages of different sex couples. In Obergefell, Justice Kennedy specifically mentioned listing on birth certificates as one of the incidents of legal marriage from which same-sex couples had previously been excluded.
Justice Neil Gorsuch wrote a dissenting opinion in Pavan, joined by Justices Samuel Alito and Clarence Thomas, arguing that the Obergefell ruling did not necessarily compel the conclusion stated by the Court and that the Court should have scheduled briefing and a full hearing on the question rather than issue a summary per curiam ruling.
Since Pavan was decided, Justice Kennedy has retired and Justice Ruth Bader Ginsburg has died, being replaced respectively by Justices Brett Kavanaugh and Amy Coney Barrett, both religious conservatives. When Indiana filed its petition for review in the Henderson case last spring, Justice Ginsburg was still on the Court and the Pavan v. Smith majority was intact. The same-sex couples who had filed the lawsuit, represented by the National Center for Lesbian Rights, did not even file an opposition, assuming the Court would dismiss the petition. But with Justice Ginsburg’s death and replacement, the calculus had changed, as the Pavan 6-member majority had been reduced to a 4-member minority of the Court. The Supreme Court then requested the plaintiffs to file a reply to Indiana’s petition for review, and the possibility appeared that the Supreme Court might take up the issue anew.
At the heart of Indiana’s case was the contention that the presumption that a husband is the father is reality-based in biology, and there is no such basis for a reality-based presumption for the wife of a woman who gives birth, although the 7th Circuit had observed that one of the lesbian couples in the case comprised two biological mothers, as the second mother had donated the egg that was gestated by the birth mother.
Be that as it may, Indiana, in common with other states, has never treated the father’s parental status as conclusive, since it could be rebutted by evidence that a different man was the biological father, and ultimately a birth certificate records legal parentage, not biological parentage, as in the new birth certificates that are issued upon a child’s adoption. The trial court, and ultimately the 7th Circuit, related that Indiana relied on self-reporting by the mother in determining a man’s name to record on a birth certificate, and the form the birth mother is given asks for the name of the father, not explicitly the name of the biological father, making it likely that many men are named as fathers on birth certificates despite the lack of a biological tie to the child.
Ultimately, wrote the 7th Circuit, “The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed.”
By refusing to review this ruling, without any explanation or dissent by the conservative justices, the Supreme Court seems to have put the seal on this issue. This is particularly reassuring in light of gratuituous comments by Justice Alito (joined by Justice Thomas) in a statement he issued when the Court refused to review former Kentucky county clerk Kim Davis’s petition to review an award of damages against her for refusing to issue marriage licenses to same-sex couples after the Obergefell decision was announced. Davis v. Ermold, 2020 U.S. LEXIS 3709, 2020 WL 588157 (October 5). In Alito’s statement, and remarks he later delivered to a conservative public forum, Alito sharply criticized the Obergefell decision and suggested that the Court needed to “fix” the problems that ruling created for those with religious objections to same-sex marriage. This focused renewed attention on the Henderson case and the possibility that the Court would take it and rule in a way that would detract from the equal legal status of same-sex marriages. The decision not to take this case may represent an important bullet dodged for now.