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Birth certificate battle moves to 7th Circuit

February 8, 2017

Despite a change in state leadership, Indiana will continue fighting over birth certificates in a move that is being seen as part of a larger ongoing resistance to same-sex marriage.

The state has appealed the ruling in Henderson v. Adams, 17-1141, which allowed married non-birth mothers to be listed as a parent on the child’s birth certificate. The Pence administration refused to recognize these women as parents and twice tried to convince the district court to limit the scope of the state’s parenthood statutes.

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Although a new governor has been installed, the state is turning to the 7th Circuit Court of Appeals but has not yet submitted a brief stating what issue it wants the appellate panel to address. Neither Gov. Eric Holcomb nor Indiana Attorney General Curtis Hill responded to phone and email messages seeking comment.

“I had been hopeful that with a new attorney general and a new governor we would see a change in the state’s handling of this matter,” said Karen Celestino-Horseman, one of attorneys representing the couples in Henderson.

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The plaintiffs in Henderson, a group of married lesbian couples, challenged Indiana’s stance that non-birth mothers are not parents because they are not biologically related to the children. Their primary argument was that they were being treated differently from similarly situated heterosexual couples who had undergone artificial insemination. The men in those marriages were still listed as the father on the birth certificate even though they didn’t share a biological connection with the offspring.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana overturned the state’s parenthood statutes, finding they violate the Equal Protection and Due Process clauses of the 14th Amendment.

The state subsequently filed a motion asking the court to modify and clarify the ruling. Walton Pratt denied the motion to amend the judgment but granted the state’s request to clarify how the judgment should be applied, pointing out “the Order means what it says and says what it means.”

At the 7th Circuit, the state’s brief is due by Feb. 23, and the plaintiff’s brief is due by March 27.

Celestino-Horseman asserted the state is treating these couples as second-class citizens and hurting the children. The parents are having to divert time and money away from their youngsters as Indiana extends this dispute.

Drobac Drobac

Indiana University Robert H. McKinney School of Law professor Jennifer Drobac called the state’s decision to appeal outrageous.

“This is blatant sexual orientation discrimination against same-sex couples who are lawfully married,” she said. “This is a continuation of the Pence administration’s hostile stance toward same-sex couples.”

States’ resistance

Beyond Indiana, the question of how far the landmark Obergefell decision legalizing same-sex marriage goes is bubbling in Arkansas and Texas.

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Indiana University Maurer School of Law professor Steve Sanders said the states pushing back were “dragged unwillingly into recognizing same-sex marriage.” Now they are resisting and trying to limit the scope of the U.S. Supreme Court’s 2015 ruling.

Arkansas, like Indiana, does not want to list both female spouses’ names on their children’s birth certificates and Texas is challenging the city of Houston’s policy to allow spousal benefits to cover gays and lesbians. The Arkansas and Texas cases were both filed in state courts and have reached their respective supreme courts.

Unlike Indiana, Arkansas has been able to keep the non-birth mother’s name off the birth certificate. The Arkansas Supreme Court upheld the state law. Its December decision requires same-sex couples to get a court order before being allowed to have both parents’ names listed.

The case is Marisa N. Pavan, et al. v Nathaniel Smith, director of the Arkansas Department of Health, 60CV-15-3153.

In Texas, the Supreme Court recently reversed itself and has now agreed to hear Pidgeon et al. v Mayor Sylvester Turner and City of Houston, CV-15-988. Initially, the majority declined to hear the case but then changed its mind after Republican leaders in the state, asked the court to reconsider.

Arguing his colleagues should hear the case, Texas Justice John Devine said spousal benefits were not made a fundamental right under Obergefell.

Sanders does not expect these states will be successful in chipping away at Obergefell. Indiana and the other two states are narrowly reading the opinion and concluding that same-sex couples can be denied rights related to marriage. The states are trying to send the message that same-sex couples are unworthy, he said.

However, Sanders sees Justice Anthony Kennedy as taking a much broader view in his majority opinion, extending not just marriage but equal dignity to same-sex couples. The justice intended gay and lesbian couples should be treated like heterosexual couples and have the same rights and obligations that flow from marriage, Sanders said.

Sanders maintained that with the federal courts taking a broader reading of Obergefell and there being little chance the Supreme Court would entertain overturning the decision, these cases probably will not get much traction.

“I think these are just isolated little fires,” he said.

Drobac believes the 7th Circuit will find Indiana’s parenthood statutes unconstitutional. However, she said the state’s “clear disregard for what has been established as constitutional law” could open the door for like-minded people to similarly disregard the law.

Conversely, she said, there is a risk to trying to limit or even get Obergefell overturned. If in the end, non-birth mothers cannot be listed on the birth certificates because they are not biologically related, then men may either have to prove they are the father or, in instances of artificial insemination, file to adopt the child.

“This could have a large ripple effect for men as well as same-sex couples and work to the detriment of the family,” Drobac said.

Legislative solution

A custody dispute involving birth and non-birth mothers is before the Indiana Supreme Court. The Indiana Court of Appeals affirmed the trial court’s ruling in In re the Marriage of Kristy Gardenour v. Denise Bondelie, 32A010-1601-DR-82, that both women should have joint custody and parenting time.

Indiana filed an amicus brief in support of neither party. The state told the justices it offered the brief to emphasize the case warrants the court’s attention and that Indiana’s parentage statutes are being challenged in Henderson.

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Sen. Mark Stoops, D-Bloomington, has introduced a bill that would legislatively fix the problem. Senate Bill 393 would extend the presumption of parenthood to female same-sex married couples, giving non-birth mothers the same parental rights if they are married to the birth mothers or if the child is born within 300 days after the couple divorced.

Stoops said his proposal would put the parenthood statutes in line with the legalization of same-sex marriage. He has heard from same-sex couples in his district and now sees a need to address and fix additional issues to make sure the couples are treated equally.

The bill has been assigned to the Senate Committee on Civil Law but so far has not been scheduled for a hearing. Although Stoops declined to say he was confident the committee would consider his measure, he indicated he would continue to push the Legislature to change the statute.

Stoops is hopeful his bill will get a hearing. “But I also understand sometimes these small corrections can take years to get through.”•

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