Arkansas Birth Certificate Ruling Could Impact Indiana

Marilyn Odendahl for www.theindianalawyer.com

As lesbian married couples in Indiana wait on the 7th Circuit Court of Appeals to rule whether both mothers can be listed on their children’s birth certificates, the Supreme Court of the United States may have just decided the outcome of the case.

In a per curiam decision issued by the Supreme Court Monday in Pavan v. Smith, 582 U.S. ___(2017), a majority of justices found Arkansas could not prohibit female married couples who conceive children through artificial insemination from putting both women’s names on the birth certificate.

Female married couples in Indiana are challenging a similar law in Indiana in Henderson v. Adams, 17-1141. The U.S. District Court for the Southern District of Indiana ruled that the state’s practice of listing husbands as a parent in instances of artificial insemination but not doing the same with non-birth mothers violated the U.S. Constitution.

Indiana appealed and oral arguments were held May 22 before the 7th Circuit Court of Appeals, but the panel, consisting of Judges Joel Flaum, Frank Easterbrook and Diane Sykes, has not issued an opinion.

Attorneys representing the opposing parties in Henderson were divided on how the Supreme Court’s ruling impacts the Indiana case.

The plaintiffs’ counsel see the opinion as clarifying that Obergefell v. Hodges,135 S. Ct. 2071 (2015),  prevents Indiana from denying same-sex couples all the benefits of marriage. The lawyers submitted a letter Wednesday to the 7th Circuit alerting the panel to the Supreme Court’s decision.

“Pavan squarely rejects Indiana’s argument that birth certificates are entirely about identifying biological parentage,” the letter stated. “Similar to Arkansas, under Indiana law same- or opposite-sex married couples who conceive artificially are considered to be the legal parents of their child, who is also considered a ‘child of the marriage,’ despite the lack of any biological relationship.”

Indiana Attorney General Curtis Hill’s office disputed that stance. “The U.S. Supreme Court’s decision regarding Pavan v. Smith does not impact Indiana’s case,” the office stated without offering a reason for its view.

In Pavan, the Supreme Court overturned a ruling by the Arkansas Supreme Court which prohibited non-birth mothers from being listed on the certificate of birth. Arkansas law mandates that if the mother is married at the time of either conception or birth, then the name of her husband shall be entered on the certificate as the father of the child.

Two lesbian couples filed a lawsuit against the Arkansas Department of Health, arguing same-sex female married couples were being prohibited from enjoying the same spousal benefits that are available to opposite-sex married couples.

Citing Obergefell, which legalized same-sex marriage, the Supreme Court agreed that same-sex couples were being denied the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The majority noted the interpretation of the state law by the Arkansas Supreme Court allowed state officials to omit a married woman’s female spouse from her child’s birth certificate. “As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school,” the U.S. Supreme Court wrote.

Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented. They asserted that state’s arguments that the birth certificate regime does not run afoul of Obergefell. Rather the reasons for being biologically based helped to identify public health trends and enables individuals to trace their biological lineage, citizenship or susceptibility to genetic disorders.

Indiana University Maurer School of Law professor Steve Sanders sees the arguments between the Indiana case and the Arkansas dispute as being very similar and therefore, believes the Supreme Court’s ruling will have a “significant impact” on Henderson.

“I think that this pretty much disposes of the Indiana case,” Sanders said, adding the 7th Circuit will have no choice but to abide by the Supreme Court decision and rule in favor of the plaintiffs.

He noted the attorney general may see nuances that distinguish Henderson from Pavan and the 7th Circuit could take a very narrow approach to see the issues from Indiana as different. But given the Supreme Court has reiterated the scope of Obergefell in conferring the rights of marriage on same-sex couples, Sanders does not think “the 7th Circuit is going to stretch and squint to distinguish the Indiana case from the Arkansas case.”