A federal appeals panel of Republican appointees ruled Jan. 17 that the state of Indiana must treat same-sex married couples the same as male-female married couples when determining who to list on a child's birth certificate.
The case, Henderson v. Indiana, originated when the state of Indiana refused to list the non-biological mother of a child born by her female spouse on the birth certificate of the son. The lesbian couple sued, noting that Indiana would list a non-biological father on a birth certificate of a child born by his wife.
Indiana argued that birth certificates were meant to reflect biology, but the appeals panel noted that Indiana law states that a "man is presumed to be a child's biological father if [he] and the child's biological mother are or have been married to each other and the child is born during the marriage…." The state, it said, was refusing to provide a similar presumption if the child's biological mother was married to a woman. That, it said, contradicted the U.S. Supreme Court's ruling in Obergefell v. Hodges, which struck down state laws treating same-sex couples differently in marriage licensing.
The 7th Circuit appeals panel said the Indiana laws governing birth certificates "are products of a time when only opposite-sex marriages were recognized in Indiana" and that they also fail to recognize the "possibility" that a female-female couple could have two biological mothers ( one who donates an egg and one who carries the child to birth ).
The panel said Obergefell does not allow a state to provide all husbands the presumption of being fathers "while denying an equivalent presumption to parents in same-sex marriages." Obergefell held that same-sex couples must have the same rights and protections under state marriage laws as opposite-sex couples.
The Henderson decision also noted that the U.S. Supreme Court ruled in Pavan v. Smith in 2017 that same-sex couples are entitled to marriage "on the same terms and conditions as opposite-sex couples." The Pavan case involved a refusal of the Arkansas health department to issue a birth certificate for a same-sex couple's child that included both mothers.
The Indiana case panel included judges Joel Flaum and Frank Easterbrook ( both appointed by President Reagan ) as well as Diane Sykes ( an appointee of President George W. Bush ). Easterbrook authored the opinion.
Sykes, who has been considered one of President Trump's short-list nominees for a U.S. Supreme Court seat, appeared to ready to rule against the lesbian couple during oral argument. According to reports, she said, "You can't overcome biology."
The couple who pressed the challenge, Ruby and Ashlee Henderson, lived in Lafayette, Indiana and had one child before they were able to marry, following the Obergefell ruling. After they married, they tried to get their child's birth certificate amended to show them both as parents; the state refused.
The 10-page opinion took an extraordinary amount of time to produce: two and a half years. The case was argued in May 2017.
The Seventh Circuit jurisdiction includes Illinois, Indiana and Wisconsin.
Meanwhile, in the same week the Henderson decision was released, Lambda Legal argued in federal district courts in Georgia and Maryland that a similar disparity is taking place for same-sex couples whose children are born abroad.
"Children born abroad to married different-sex parents who are U.S. citizens are routinely recognized as U.S. citizens," said Lambda in a press release about the cases, "but the State Department is deliberately misapplying federal statutes to deny similar treatment to the marital children of same-sex couples."
In Georgia on Jan. 16, Lambda filed suit on behalf of an Atlanta male married couple whose child was denied U.S. citizenship because she had been born in England where the surrogate mother lives. And in Maryland earlier this month, Lambda filed suit for another male couple who married in California and had their daughter using a surrogate mother in Canada. The State Department in both cases is claiming the children were born "out of wedlock" even though both couples were legally married at the time they had their children.
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