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Same-sex birth certificate case stalls at 7th Circuit, putting families in limbo

April 4, 2019

Both Jackie Phillips-Stackman and her wife, Lisa, carry copies of their daughter’s birth certificate with them wherever they go as they wait for the 7th Circuit Court of Appeals to issue an opinion that they fear could upend their family.

The Phillips-Stackmans are part of a lawsuit brought by married female couples against the state of Indiana for not allowing both women’s names to be listed on their children’s birth certificate. After the U.S. District Court for the Southern District of Indiana granted summary judgment to the women in 2016, the Indiana Attorney General filed an appeal to the 7th Circuit.

Oral arguments in Henderson v. Adams, 17-1141, were presented May 22, 2017 to the panel of Judges Joel Flaum, Frank Easterbrook and Diane Sykes. Since then, the case has sat in Chicago, where it is now one of the oldest cases on the 7th Circuit’s docket.

The delay is keeping the Phillips-Stackman family and other married lesbian couples in limbo. While Indiana has been permitting both women in same-sex marriages to be identified as the parents on their offsprings’ birth certificates, the couples wonder what would happen if the appellate court reverses the lower court.

Some worry the state would remove the non-birth mother’s name from the birth certificates already issued to married lesbian couples. Such a step could negate the non-birth mothers’ legal parental rights to their children.

Jackie Phillips-Stackman described the situation as “very unnerving.”

Collins Fitzpatrick, circuit executive for the 7th Circuit, confirmed Henderson is one of the oldest cases at the Chicago court still awaiting a ruling. He said the judges are not required to render an opinion, but the tradition of the 7th Circuit has been to issue a decision in every case.

Fitzpatrick alluded that the slowdown might be caused by the vacancies that were not filled until recently, as well as the process the judges engage in when crafting their rulings.

The appellate court had at least one open seat dating back to August 2011. By September 2017, the vacancies had ballooned to four. Beginning in October 2017, the 7th Circuit welcomed the first of four new judges, bringing the court to its full complement of 11. The first new judge to join the Chicago court was Notre Dame Law School professor Amy Coney Barrett, who filled the Indiana seat vacated when Judge John Tinder retired in the summer of 2015.

Also, Fitzpatrick said, the judges on a panel can have a lot of back-and-forth after the oral arguments. In writing the opinions, the panel will discuss and pass the drafts amongst themselves, which can lengthen the time needed to reach a decision.

However, little more than a month after the Henderson oral arguments, the U.S. Supreme Court issued a per curiam decision on a similar birth certificate case from Arkansas. In Pavan v. Smith, 582 U.S.___ (2017), the court ruled the state could not prohibit female married couples who conceive children through artificial insemination from putting both mothers’ names on the birth certificate.

The basis of the Supreme Court’s decision in Pavan was its landmark ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In that case, the majority held the Constitution entitled same-sex couples to civil marriage on “the same terms and conditions as opposite-sex couples.”

During the Henderson oral argument, the women’s legal team likewise pointed to Obergefell and made a similar assertion. The panel was skeptical, repeatedly contending Indiana’s parenthood statute was based on biology, which same-sex couples cannot overcome.

In June 2018, the women’s attorneys filed a motion for additional briefing in light of Pavan. The lawyers asked for permission to submit further briefing not to exceed 3,000 words, but the 7th Circuit never responded.

The Phillips-Stackman family brings an unusual twist to the case and demonstrates how science is testing, if not outpacing, the law. Jackie Phillips-Stackman is the biological mother, but her embryos were implanted in her wife, making Lisa the birth mother. Prior to the birth of their daughter in October 2015, Phillips-Stackman called the health department to see if she could also be listed on the birth certificate and was advised she should consider formally adopting what is, in fact, her biological baby. 

Even though Indiana now recognizes both women as parents, Phillips-Stackman and her wife keep their daughter’s birth certificate handy in case they have to prove their parenthood.

Phillips-Stackman knows well the fear that can come with being in limbo. Her daughter was born with a rare chromosomal deletion and had to spend time in intensive care. Even though Phillips-Stackman was legally married to the birth mother, she was not seen as legally the baby’s parent, which put her at risk of, among other things, having her insurance company deny coverage to the infant.

Those who are fighting married female couples on the birth certificate issue are not trying to preserve families, Phillips-Stackman said. They are “really just trying to tear families apart.”

Fitzpatrick said attorneys on either side could file a motion for an expedited decision although, he added, “such a motion would be extremely rare.”

The attorneys representing the women are Karen Celestino-Horseman, of counsel, Austin & Jones PC; Raymond Faust of Norris Choplin & Schroeder LLP; Richard Mann and Megan Gehring, both of Richard A. Mann, PC; and William Groth of Fillenwarth Dennerline Groth & Towe LLP.

Celestino-Horseman said her clients are holding their breath and wondering what could happen if the 7th Circuit does not affirm the district court’s ruling.

The case has been waiting for an opinion from the appellate court longer than it was litigated in the Southern Indiana District Court. With the original complaint filed in February 2015, the dispute has been in contention for more than four years. Celestino-Horseman anticipates that if the 7th Circuit issues a reversal, she and her colleagues will get a “flood of calls” from women wanting to know what to do.

Indiana Attorney General Curtis Hill’s office declined to answer questions about the Henderson case. Indiana Lawyer asked what the Attorney General’s office is doing to ensure married lesbian couples are being listed as parents on their children’s birth certificates and whether it would revoke those birth certificates if the 7th Circuit ruled against the women, but the state’s top lawyer directed the inquiries to the Indiana State Department of Health.

The health department said the birth certificates are listing as parents both women who are married to each other at the time their child is born. Also, the long form has two fields labeled with the generic “parent’s name” rather than “mother” and “father.”

To Jackie Phillips-Stackman, the biggest frustration of this case is the issue of fairness. She pointed out, heterosexual couples who undergo in vitro fertilization are listed as the parents with no questions asked, even when neither the man nor the woman is biologically related to the child.

“I think, if anything, our family is just as important as anyone else’s,” she said.

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