7th Circuit: Birth certificates should list both mothers in same-sex marriages

Nearly three years after oral arguments, the 7th Circuit Court of Appeals has issued a ruling in Indiana’s same-sex birth certificate case by following what the U.S. Supreme Court said to do — find in favor of the mothers and list them both as their children’s parents.

Married female couples filed a lawsuit in 2015 after they were prohibited from including both their names on their children’s birth certificates. The women argued Indiana’s statutes defining children born in and out of wedlock were unconstitutional because they were treating heterosexual couples differently than same-sex female couples.

The U.S. District Court granted summary judgment to the women in June 2016 and the state appealed to the 7th Circuit. Oral arguments were heard in May 2017. Shortly thereafter, the U.S. Supreme Court issued a per curiam decision in a similar case, Pavan v. Smith, 582 U.S.___ (2017) which found female married couples who conceive children through artificial insemination should have both names listed on the baby’s birth certificate.

Friday, the 7th Circuit issued a 10-page opinion in Henderson v. Box, 17-1141,  following precedent.

“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,” Judge Frank Easterbrook wrote for the panel.

Lawyers for the plaintiffs were elated.

“It’s a great day for the children and their parents,” said attorney Karen Celestino-Horseman, who had argued before the 7th Circuit. “Their families have been affirmed.”

However, the 7th Circuit panel, which also included Judges Joel Flaum and Diane Sykes, highlighted the state’s argument that the birth certificate form that new mothers fill out should include the biological father’s name as the “father.” But mothers in opposite-sex marriages write down their husband’s name even when they have undergone in vitro fertilization using donated sperm or have conceived outside of the marriage.

“According to the state, women who give birth are asked to provide the name of the child’s ‘father’ – not of the ‘husband’ but of the ‘father.’ And one form (the ‘birth worksheet’) given to new mother indeed calls for this information, through without defining the terms,” Easterbrook wrote. “The state wants us to treat this form, rather than (Indiana Code section) 31-14-7-1(1), as the governing rule.”

The panel said it was tempted to certify to the Supreme Court of Indiana whether the instruction on the birth worksheet should be treated as if they had been enacted. Ultimately, the appellate court decided not to take that action.

“There’s a deeper problem and a stronger reason not to certify: all of the contested statutes were enacted long before Obergefell and Pavan,” Easterbrook wrote. “They are products of a time when only opposite-sex marriages were recognized in Indiana. There’s nothing a court can do to remove from the state’s statute books provisions assuming that all marriages are opposite sex. Judges could reduce the weight of a presumption that a husband is also a father, but no act of intellectually honest interpretation could make that presumption vanish. It would not be seemly for us to ask the Supreme Court of Indiana to save the state statutes by rewriting them. They are what they are. The legislature can rewrite them; the judiciary cannot.”

The 7th Circuit did not affirm the district court’s entire ruling. In particular, the appellate court held that some of the language in the lower court’s opinion could be seen as treating lesbian married couples differently than same-sex male married couples.

“It also is important to be clear that this litigation does not decide what parental rights and duties (if any) biological father such as sperm donors have with respect to the children of female-female marriages,” Easterbrook wrote. “No biological father is a litigant.”

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