The married lesbian couples who successfully challenged Indiana’s prohibition on listing both women as parents on their children’s birth certificates have filed their brief with the U.S. Supreme Court, telling the justices not to bother with this long-running dispute.
“This case does not present an important question of federal law for the Court to resolve, but instead merely asks this Court do review the (7th Circuit Court of Appeals’) construction of Indiana Law,” the women said in their response brief. “… Even if the state law question is one that can arise in multiple states, the Court’s construction of Indiana’s law would necessarily be specific to that jurisdiction, rather than having broader effect.”
The case, Box v. Henderson, was filed in February 2015 and the U.S. District Court for the Southern District of Indiana granted summary judgment for the same-sex married women couples in June 2016. After the district court reaffirmed its decision in December of that year, Indiana appealed to the 7th Circuit.
About a month after the Chicago appellate court heard oral arguments in Henderson in May 2017, the U.S. Supreme Court issued Pavan v. Smith, 137 S. Ct. 2075 (2017). In that case, the court reviewed a birth certificate regime in Arkansas that was similar to Indiana’s. The justices found states cannot grant certain benefits to a birth mother’s opposite-sex spouse when their child is conceived through artificial insemination but then deny those same benefits to a birth mother’s same-sex spouse.
The 7th Circuit finally affirmed the district court’s ruling in Henderson in January 2020.
Filing a petition for writ of certiorari with the U.S. Supreme Court, Indiana argued its birth certificate policy is different from the one overturned in Pavan because it is based on biology rather than marriage.
However, in their response brief, the eight women couple dissected Indiana’s regime for completing a newborn’s birth certificate to support their argument that Pavan applies.
The women state that the birth worksheet simply asks the mother if she is married to the child’s “father” and, if so, to identify him. It does not use the term “biological” or otherwise indicate that the “father” must have a genetic tie to the child.
“While the state asserts that it ‘treats the term “father” to mean “biological father,”’ that meaning is neither evident from the form nor supported by Indiana law, and it is contradicted by the form itself,” the women respondents claimed. “Nowhere does the Birth Worksheet define the term ‘father,’ nor does it suggest that she should not list her husband if the couple has, by agreement, conceived with the assistance of donor insemination.”
Moreover, the women pointed to Indiana’s statutes and judicial opinions that confirm the husband is allowed to be listed as the father even when the wife was impregnated through donor insemination. The respondents highlight Levin v. Levin, 645 N.E.2d 601, 603 (Ind. 1994) which found a husband who consented to the artificial insemination of his wife is the legal father of the child.
“The court relied on the fact that ‘both [spouses] agreed to go forward with [the wife’s] artificial insemination,’ and that the husband had held the child out as his own, including being listed on the birth certificate,” the women stated, citing Indiana Code section 31-9-2-13(a)(2).
Also, in Gardenour v Bondelie 60 N.E. 3d 1109, 1120-1121 (2016, trans. denied), a custody dispute involving two women who had been in a relationship, the Indiana Court of Appeals applied Levin to same-sex spouses who use donor insemination to have a child.
In its petition, Indiana argued couples could rebut the birth certificate. However, the women argued the marital presumption can be challenged only by one of the spouses in limited circumstances or by the person seeking to establish that he, and not the birth mother’s husband, is the biological father.
“Put differently, only those with direct, specific interest – i.e. a spouse, or someone seeking to establish his own parental rights, is even eligible to challenge the presumption,” the women asserted. “As a result, there are many circumstances in which a husband who is not a biological father is nonetheless a legal parent because no one who has standing challenges the marital presumption.”
The women also noted that under Indiana law the birth mother and her husband can be estopped from challenging the marital presumption even when they know the husband is not the biological father. They support this argument by citing multiple cases including Sheetz v. Sheetz, 63 N.E.3d 10077, 1083 (Ind. Ct. App. 2016) and Ohning v. Driskill, 739 N.E.2d 161 (Ind. Ct. App. 2000) and by pointing to the Indiana Legislature making clear the marital presumption in state statute “furthers several important state policies other than identifying a child’s biological parent.”
The Box v. Henderson case has attracted some outside attention.
The nonprofit Them Before Us filed an amicus curiae brief, urging the U.S. Supreme Court to take the Indiana case. In its brief, the organization contends children suffer lasting harm when they do not know the identity of their biological parents. The lack of knowledge affects their health, romantic relationships, and “identity formation” and can put them at greater risk of abuse and neglect.
To support its claims, the brief contains stories provided through testimonials to the organization and in public accounts in The Daily Mail and The Guardian.
Also, echoing Indiana’s argument, Them Before Us disputed that Pavan applied to the Hoosier state law. Arkansas was requiring the birth mother’s husband to be listed as the father even when all parties knew that was false and the assumption could not be rebutted.
In a footnote in their response brief, the women counter the filing from Them Before Us. The respondents argue the organization’s claims are inapposite because Indiana does not have a biology-based birth certificate regime that applies to all married couples equally.•