Indiana continues to press the U.S. Supreme Court to take a case that would deny the right of married nonbiological mothers in same-sex couples to be recognized as legal parents by being put on their children’s birth certificates. It doubled down in a brief filed with the court last week. Double down with me as we take a look at the case—and how parenting bloggers are inadvertently playing an odd role.
The Case
Indiana is appealing a January 2020 ruling of the 7th U.S. Circuit Court of Appeals in Box v. Henderson that said Indiana must put both same-sex spouses on the birth certificate of a child born to one of them. This right, recognized not only in that case but also in the 2017 U.S. Supreme Court ruling Pavan v. Smith, is crucial for giving children with same-sex parents the legal protection of both parents from the moment of birth.
In its petition to the Supreme Court, filed June 15th, however, Indiana maintains that the 7th Circuit ruling “is in tension with the traditional, constitutionally protected understanding that, at birth, only a baby’s biological parents have legal rights and obligations toward the child.”
In early November, however, the plaintiffs, eight female same-sex married (or previously married) couples and their children, filed a response to Indiana’s request that the Supreme Court take the case. As Mark Joseph Stern noted at Slate, this was by request of the court, and “This unusual step indicates that the justices are interested in taking up the case.” Indiana last week followed up with an additional filing of its own, responding to the plaintiff’s response.
I covered the case and its arguments in some detail in an earlier post. In brief, Indiana is arguing that it is basing its practice on biology, not on marital status. That way, it claims, it does not run afoul of two U.S. Supreme Court rulings about marital status: Obergefell v. Hodges, which legalized marriage for same-sex couples, and Pavan v. Smith, which said Arkansas may not prevent married same-sex couples from having both mothers’ names on their children’s birth certificates. Because those rulings only forbid discrimination on the basis of marital status, Indiana argues, discriminating on the basis of biology is just fine and dandy (my paraphrase).
Defining a Father
The plaintiffs’ recent response (PDF) to this argument noted that Indiana’s Birth Worksheet, which collects information for the birth certificate, “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.” Therefore, although Indiana says it “treats the term ‘father’ to mean ‘biological father,’” the plaintiffs say “that meaning is neither evident from the form nor supported by Indiana law, and it is contradicted by the form itself.” In other words, the plaintiffs argue, Indiana is not, as it claims, making its decisions based strictly on biology.
Indiana, in its latest response (PDF) to the plaintiffs, notes that it is true that the Birth Worksheet does not define “father” as meaning a biological father—but it then asks incredulously, “But what else would it mean?” It continues, “The word ‘father is commonly understood to mean ‘biological father’ or, as defined by Merriam-Webster, ‘a man who has begotten a child.'” That’s actually the second definition of “father” by Merriam-Webster. Conveniently, Indiana ignores the first definition, which is simply “A male parent,” no begetting necessary.
Next—and here’s the really ludicrous part—it tries to prove that “the word ‘father’ is commonly understood to mean ‘biological father'” by citing three posts by dad bloggers, at Dadtography, Dad Fixes Everything, and Mind Journal, that explore the differences between being a “father” and being a “dad.” Each argues that being a “father” is simply a matter of biology, whereas a “dad” is someone who is active in raising a child. Certainly some may make that argument—and I’m definitely all for encouraging men to be hands-on in their parenting. Yet Indiana’s lawyers are again being very selective in choosing these posts. These may be fine blogs, but we don’t know if they’re necessarily representative of widespread opinion. One can easily find just as many pieces by men who have adopted children, i.e., children not biologically related to them, and use the term “adoptive father.” (Here are one, two, three of them that I found fairly easily.) And the Dad Fixes Everything post they cite even undercuts the state’s argument by noting that “Merriam-Webster doesn’t offer much clarity on the difference between these two titles [dad and father] for men.”
Eggs-pert Opinion
Another point Indiana addresses in the new filing is when a couple (like one of the plaintiff couples), used one person’s egg and the other’s womb. In the initial filing, they called this “the rarest of cases” and said little more about it. (It’s not that rare; it’s the method my spouse and I used and I know plenty of other couples who have.) Indiana now notes that state law conveys biological parental rights on the egg donor, and claims that the State’s refusal to list the gestational mother on the child’s birth certificate (where she would have had to be listed in the “biological father” spot) is “reasonable,” since she is the child’s biological mother, not biological father. “Her remedy is to file a maternity action,” they say. That’s right: after nine months of pregnancy, even when married to the person who provided the egg, the state wants a mother to jump through legal hoops to prove her parenthood. A better answer: Change the form.
Looking Ahead
Indiana continues to press its case to a Supreme Court made even more conservative with the recent addition of Justice Amy Coney Barrett. It even directly addresses the conservative justices who dissented in Pavan, reminding them of their dissent and offering them here a chance to finally have their way (my bold):
As three [dissenting] justices recognized in Pavan, “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent they speak to the question at all, this Court’s precedents suggest just the opposite conclusion.” This case gives the Court a critical opportunity to clarify that States may, consistent with Obergefell and Pavan, establish a biology-based system for allocating parental rights (reflected on the child’s birth certificate) without insisting that every supposed biological parent undergo genetic testing and adjudication.
The two new filings from the plaintiffs and the state have been distributed to the court for its conference on December 11, when the justices will likely consider whether to take the case. If they do, it would still be months before a decision.
Yes, even if they take the case and rule in Indiana’s favor, nonbiological parents in same-sex couples could still get second-parent (co-parent) adoptions to secure their legal rights. Second-parent adoptions, however, usually cost several thousand dollars in attorney’s fees and require an intrusive home study, background check, and court appearance in most states (though a few are simplifying the process). They can also take months to complete, leaving a child without the legal protection of both parents during that time, and at risk if the biological mother dies or is incapacitated.
As always, I’ll remind readers that even if you’re a nonbiological/nongestational mother and are on your child’s birth certificate, you should still do a second-parent adoption if you can. Only an adoption or other court order of parentage is guaranteed “full faith and credit” by other states, and secures the nonbiological parent’s legal ties to the child regardless of marital status. See my October post for more information about this. Nevertheless, having accurate birth certificates is a vital right that not only gives children the immediate protection of both parents, but also gives parents a key document that is required for completing school registrations and other important forms in our children’s lives. Denying children of same-sex parents this right is discrimination, pure and simple.
The plaintiffs in Box v. Henderson have also argued that the Supreme Court does not usually take cases “to resolve questions of state law,” but that is what Indiana is asking it to do. The Court of Appeals “faithfully” applied both the Supreme Court decision in Pavan and state law, and so nothing in the case warrants the Supreme Court’s review, they assert. Let’s hope the Supreme Court agrees and refuses to take the case. If it doesn’t, the rights of queer families will once again be on the line.
