A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children. Judge Frank Easterbrook wrote the opinion for the court.
The timing of this appeal made the outcome unsurprising. In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates. See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016). Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples. Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.
In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit. But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date. Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.
Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate. Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.” Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.
Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook. “In its view, birth certificates in Indiana follow biology rather than marital status. The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”
By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor. Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.
That the argument is complete nonsense certainly did not help the state’s case. Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement. “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote. “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing. Others may name their husbands for social reasons, no matter what the form tells them to do. Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.” This is the presumption that the husband of a married woman who gives birth is the father of her child. “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot. Nothing about the birth worksheet changes that rule.”
The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate. Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage. But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?
The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold. Yet again, the state’s insistence on perpetuating the former legal regime was rejected.
Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers? Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother. One set of plaintiffs in this suit shows this. Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor. Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother. There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”
“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” Because the current statute does that, he continued, “its operation was properly enjoined.”
However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.” For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.” Easterbrook asserted that neither of these provisions violated the constitution. “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.
“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,” the court concluded. “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”
Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum. The third judge on the panel, Diane Sykes, was appointed by George W. Bush. Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents. The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage. After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.
Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms. Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.Tags: 7th Circuit, ART, assisted reproductive technology, birth certificates for children conceived through donor insemination, birth certificates for children of same-sex spouses, children conceived through artificial insemination, Circuit Judge Diane Sykes, Circuit Judge Frank Easterbrook, Circuit Judge Joel Flaum, District Judge Tanya Walton Pratt, donor insemination, Henderson v. Adams, Henderson v. Box, Indiana birth certificates, Obergefell v. Hodges, out of wedlock, parental presumptions, Pavan v. Smith, US Court of Appeals, wedlock