Lesbian couples in Indiana are learning the fight for state recognition did not stop with the legalization of same-sex marriage. The battle now has moved to parenthood.
Two groups of plaintiffs have filed complaints in federal court, challenging Indiana’s refusal to list both mothers on their children’s birth certificates. They assert the state is not recognizing lawful families and is depriving the children of numerous protections that come with having a legally recognized second parent.
In their court filings, the couples reiterate the arguments gays and lesbians made during the same-sex marriage litigation. The plaintiffs claim the state’s stance violates the 14th Amendment’s Equal Protection and Due Process clauses.
“I am disappointed the state did not address this issue when it first arose,” said plaintiffs’ attorney Karen Celestino-Horseman of Austin & Jones P.C.
Also representing the couples are attorneys William Groth of Fillenwarth Dennerline Groth & Towe LLP; Raymond Faust of House Reynolds & Faust LLP; and Richard Mann of Richard A. Mann P.C.
The Indiana Attorney General’s Office disputed the state is fighting this issue. It noted the “plaintiffs’ lawyers brought this lawsuit, the plaintiffs’ lawyers have the burden of proof, not the government, and (the) allegations in a civil lawsuit are the opinion of the plaintiffs’ lawyers filing them and may be refuted in court.”
Both cases were filed in the U.S. District Court for the Southern District of Indiana.
Couples in the first case, Ashlee and Ruby Henderson, et al. v. Dr. Jerome M. Adams, in his official capacity as Indiana State Health Commissioner, et al.,1:15-CV-220, have filed a motion for permanent injunction.
In the second case, Noell and Crystal Allen, et al. v. Dr. Jerome M. Adams, in his official capacity as Indiana State Health Commissioner, et al., 1:15-CV-01929, the parties are preparing for preliminary injunction arguments scheduled for Feb. 5.
Jennifer Singley, a recent graduate of Indiana University Robert H. McKinney School of Law, and her wife, U.S. Army Capt. Nicole Singley, are among the plaintiffs in the first lawsuit. The couple was married in Washington, D.C., in January 2014, and in March 2015, Jennifer gave birth to their son.
They did not realize Indiana would not recognize Nicole as a parent until they received the birth certificate that listed their newborn as a child born out of wedlock. Jennifer said the baby is being raised by two loving, caring mothers, yet Nicole has no parental rights. Although Nicole is the primary breadwinner and provides the health insurance, she could lose custody if Jennifer dies.
“I think it’s so ridiculous, I don’t see how we could lose,” Jennifer said of the court complaint.
The Indiana couples are not alone. Similar disputes have arisen in other states. North Carolina, like Indiana, has been taken to court over the matter, but some states have reversed course.
In August 2015, Texas moved to list same-sex parents on birth certificates. And in July 2015, Michigan began recognizing same-sex parents on birth certificates.
A married lesbian couple in Utah filed a federal lawsuit to get both names listed on the child’s birth certificate. However, the issue was resolved in October 2015 when the ACLU of Utah and the Utah Attorney General’s Office jointly filed for a permanent injunction. In addition, the Beehive State agreed to pay the ACLU $24,302 in legal fees.
Indiana Attorney General Greg Zoeller maintained his job is to defend the state’s laws.
“There are many legal unknowns following the U.S. Supreme Court’s decision of June 2015 striking down marriage statutes in many states. It may take time for the lower courts to resolve any remaining issues surrounding the complex, interwoven system of laws involving birth records, divorce and parental rights, property and tax laws,” Zoeller said. “Challenges to Indiana statutes require the attorney general’s office as state government’s lawyer to defend the laws passed by the people’s elected representatives in the Legislature.”
The Indiana plaintiffs contend they are being discriminated against because the state treats heterosexual couples differently. For married men and women who undergo artificial insemination, the husbands are listed on the birth certificate as the father. But for lesbian couples, the non-birth mothers have to legally adopt their children, a process that can cost several thousand dollars, to be recognized as a parent.
By listing non-biological fathers, the state is creating a legal fiction because it knows the man is not biologically related to the child, Celestino-Horseman said. The state’s refusal to extend the presumption of parenthood to same-sex couples puts the children at risk of potentially being denied medical and financial benefits and the non-birth mothers at risk of losing custody.
Celestino-Horseman noted lesbian couples fought hard to get married and now the state is telling them their children are born out of wedlock.
“It’s a slap in the face,” she said.•