November 25, 2020
I blogged yesterday about how the newly-constituted Supreme Court may choose to snip away at the law governing Miranda rights. Today, we’re on to same-sex couples.
The birth certificate form in the State of Indiana only has room for two parents. When an opposite-sex couple has a child, the law grants a “presumption of parenthood” to the father and lists him on the birth certificate. But when a same-sex couple has a child, the law denies that presumption and forces the second parent to undergo the arduous and expensive process of adopting their own child. Thus, when a woman married to a man uses a sperm donor, her husband is deemed the child’s father. When a woman married to a woman uses a sperm donor, by contrast, her wife is denied legal parenthood. Moreover, a child born to married opposite-sex couples is deemed to be born “in wedlock,” while children born to same-sex couples are considered to be born “out of wedlock.”
Ashley and Ruby Henderson sued Indiana on the grounds that the statute directly contradicts the holding of U.S. Supreme Court’s 2016 decision that the constitution requires that same-sex couples be treated the same as opposite-sex couples. The federal district court agreed with the Hendersons and ordered the state to put both names on the birth certificate. The U.S. Court of Appeals for the Seventh Circuit affirmed,
Now the State of Indiana is asking the U.S. Supreme Court to accept certiorari. I wouldn’t be surprised if the Court accepted the case, and then reversed the Seventh Circuit. The 2016 decision extending equal protection rights to same sex couples was decided by a 5-4 majority. It was written by Justice Kennedy (who is no longer on the Court), and he was joined by, among others, Justice Ginsberg (who is no longer on the Court).