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Arizona ruling highlighted in Indiana birth certificate fight

September 25, 2017

The female same-sex married couples in Indiana who are fighting to include the non-birth mother’s name on their children’s birth certificates are highlighting a recent decision from the Arizona Supreme Court that confirms parental status for lesbian couples.

Attorneys for the women filed supplemental authority last week, alerting the 7th Circuit Court of Appeals of a Sept. 19 decision from the Arizona Justices that extended marital paternity presumption to married non-birth mothers. The ruling in McLaughlin v. Jones, ___P.3d___ 2017, found that the state was violating the 14th Amendment by not recognizing the non-birth mother as a parent.

The Indiana couples in Henderson v. Adams, 17-1141, pointed out to the 7th Circuit that the Arizona court concluded the presumption of parenthood is linked to marriage rather than biology. 

Eight lesbian couples who conceived their children through artificial insemination filed suit against Indiana after the state refused to allow the non-birth mothers to be identified as parents on the birth certificates. The U.S. District Court for the Southern District of Indiana ruled the state’s action violated the 14th Amendment’s Equal Protection and Due Process clauses.

Indiana appealed and the 7th Circuit heard oral arguments in May. The panel of Judges Diane Sykes, Frank Easterbrook and Joel Flaum did not seem receptive to the women’s arguments. In particular, Sykes maintained paternity was based on biology and that any changes to the state statute should be made through the legislature and not the courts.

About a month after the 7th Circuit heard arguments in the Henderson case, the Supreme Court of the United States issued a per curiam decision in Pavan v. Smith, 582 U.S. ___ (2017), which overturned a similar statute in Arkansas. The majority of the justices ruled that under the landmark decision in Obergefell v. Hodges, 576 U.S. ___ (2015), which legalized same-sex marriage, Arkansas had to recognize both spouses in a female married couple who conceive children through artificial insemination as parents.

The 7th Circuit has yet to issue a ruling in Henderson.

The Justices in Arizona said their decision aligned with the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, 576 U.S. ___(2015), which found married gay and lesbian couples are entitled to the “constellation of benefits,” like parenthood, that states have conferred on opposite-sex marriage couples.

Also, the Arizona court asserted that any narrow reading of Obergefell was eliminated by the ruling in Pavan.

In their concurring opinion, Arizona Justice John Lopez IV and Vice Chief Justice John Pelander wrote, “We have not extended Obergefell; rather, the United States Supreme Court did so in Pavan, the recent opinion that not only expounds on Obergefell, but also forecloses debate on the breadth of that decision and dictates the outcome here.”

The Indiana plaintiffs in Henderson make a similar argument in the supplemental authority. The women assert the Arizona parenthood statute is “substantively identical” to Indiana’s statute. Moreover, McLaughlin reinforces their contention that Obergefell as applied in Pavan requires Indiana to grant the presumption of parenthood to non-birth mothers.

Attorneys for the Indiana female couples are William Groth of Fillenwarth Dennerline Groth & Towe, LLP; Karen Celestino-Horseman of Austin & Jones, P.C.; Richard Andrew Mann and Megan L. Gehring of Mann Law, P.C.; and Raymond L. Faust of Norris Choplin Schroeder LLP.

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