Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality. This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.
When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017. The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority. Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment. By the time the Court was to hold its conference on the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.
Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10. On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.
An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant. Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father. In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.
With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11. Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review. If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.
Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis. Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.