Mothers in birth certificate case win at US Supreme Court

In an order issued Monday, the United States Supreme Court denied certiorari in an Indiana birth certificate case, ending the state’s long-running fight to prevent non-birth mothers in same-sex marriages from being listed as a parent on their children’s birth certificates.

The court offered no explanation for its decision not to hear Kristina Box v. Ashlee Henderson, et al., 19-1385.

“After more than five long years, our clients’ quest for full equality is finally over. Justice has at long last been served for them, their children, and for all married same-sex couples who conceive and give birth during their marriage,” said William Groth and Karen Celestino-Horseman, two of the attorneys representing the mothers. “It is now the law in Indiana that same-sex spouses are entitled to the same presumption of parenthood as opposite sex couples, and both must be listed on their child’s birth certificate.”

Indiana Attorney General Curtis Hill’s office offered a muted response.

“We are disappointed the Court declined to take up the case,” said Thomas M. Fisher, Indiana solicitor general.

Married lesbian couples first filed their complaint in February 2015 after the state refused to allow both mothers to be identified as parents on the children’s birth certificates. They asserted that Indiana’s statutes covering children born in and out of wedlock and state law that establishes the presumption of paternity for the birth mother’s husband were unconstitutional.

The families’ arguments were successful through the entire court process but Indiana appealed each court decision.

After the U.S. District Court for the Southern District of Indiana found in June 2016 that the state was violating the Constitution by not listing both mothers as parents, the state countered with a motion to amend or alter judgment.

When the district court affirmed its ruling in December 2016, Indiana turned to the 7th Circuit Court of Appeals. The appellate court heard oral arguments in May 2017.

Then in June, the U.S. Supreme Court issued a ruling in Pavan v. Smith, 582 U.S. ___(2017). That per curiam decision held that states cannot prohibit female married couples who conceive children through artificial insemination from having both mothers’ names on the birth certificates.

The mothers filed a motion to be allowed to file additional briefing in light of Pavan but the 7th Circuit never responded.

In fact, the Chicago-based court did not issue a ruling until January 2020. The 10-page opinion, which affirmed the district court decision, came about a week after Slate published an article that drew national attention to the prolonged delay in issuing a decision.

Indiana answered by filing a petition for a writ of certiorari with the U.S. Supreme Court in June 2020. The mothers responded by asking the justices not to grant the state’s petition.

Along with Groth of the Vlink Law Firm and Celestino-Horseman of Austin & Jones P.C., the mothers were represented by Indianapolis attorneys Richard Mann and Megan Gehring of Mann Law P.C. and Raymond Faust of Norris Choplin Schroeder LLP. Also, Catherine Sakimura, Shannon Minter and Christopher Stoll of the National Center for Lesbian Rights in San Francisco and Joshua Goldstein and Luke Riley of Ropes & Gray LLP in Boston provided representation.

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