Indiana’s attorney general has filed a brief to the U.S. Supreme Court asking that a federal appeals court ruling which held both members of a same-sex couple can be listed as parents on their children’s birth certificates be overturned.
The case was brought by parents Ruby and Ashlee Henderson in 2015 as a challenge to Indiana’s birth records law. The couple sued when county officials refused to list both on the birth certificate of their son, who was conceived via artificial insemination.
A federal judge found in favor of the Hendersons in 2016, but Indiana appealed to the 7th Circuit Court of Appeals which upheld the lower court’s ruling. By that point, seven couples had joined the Hendersons in the lawsuit.
NBC News reports that in its January 2020 decision, the appellate court noted, under Indiana law, “a husband is presumed to be a child’s biological father, so that both spouses are listed as parents on the birth certiﬁcate and the child is deemed to be born in wedlock.”
“There’s no similar presumption with respect to an all-female married couple — or for that matter an all-male married couple,” the judges wrote, adding that requiring both women in a same-sex marriage to be listed as parents would prevent any discrimination.
Karen Celestino-Horseman, the attorney representing the Hendersons, told NBC News the Supreme Court should follow the legal precedent set in its own 2017 ruling for Pavan v. Smith. That case involved married couples in Arkansas who conceive via artificial insemination.
The high court’s decision held that the “constellation of benefits that the states have linked to marriage” included having the names of same-sex parents on a birth certificate.
The Hendersons argued in their original suit that a number of legal issues could arise regarding who could enroll their son in school, ensure he was covered by health insurance, or even speak on the child’s behalf during a medical appointment. Without the legal status conferred by a birth certificate, one of the women would need to formally adopt their son which could cost up to $5,000 in legal fees.
Indiana’s attorney general sent a brief to the Supreme Court arguing that it should reverse a lower court’s ruling that allowed both members of same-sex couples in Indiana to be listed as parents on their children's birth certificates.https://t.co/DpcpQiU8eF
— NBC Out (@NBCOUT) November 30, 2020
But Indiana Attorney General Curtis Hill argued in his SCOTUS brief that upholding the ruling in the Hendersons’ case would “violate common sense.”
Hill also maintained that allowing both parents in a same-sex couple to be on a child’s birth certificate could jeopardize parental rights based on biology.
“A birth mother’s wife will never be the biological father of the child, meaning that, whenever a birth-mother’s wife gains presumptive ‘parentage’ status, a biological father’s rights and obligations to the child have necessarily been undermined without proper adjudication,” Hill wrote in his brief.
The Supreme Court is scheduled to hold a conference regarding the case on December 11. It will be the first dealing with same-sex marriage rights since Justice Amy Coney Barrett was confirmed to the high court.
Hill last made national headlines in May when he had his law license suspended for a month after being accused of groping a state lawmaker and three other women in a bar in 2018.