Equal Marriage Rights Means Two Moms

Finding that Indiana was failing to comply with the Supreme Court’s mandate for marriage equality in refusing to list the same-sex spouses of birth mothers on their children’s birth certificates, US District Judge Tanya Walton Pratt, in cases brought by several same-sex couples married before their children were born, ordered that both moms’ names be identified in such cases.

Pratt found that the mandate to afford equal marriage rights to same-sex couples included a requirement that the “parental presumption” that is routinely applied to the husbands of women giving birth also be applied to their wives.

Pratt’s decision spells out the usual procedure for Indiana issuing birth certificates, which begins with the birth mother and hospital staff submitting data to the county health department. If a mother is unmarried, only her name is listed on a birth certificate, unless a paternity affidavit has been completed, even if the mother knows the identity of the birth father. If a mother is married, a husband’s name will be listed, even if the child was conceived by sperm donation, unless the mother takes immediate steps to make clear her husband is not the biological father.

Federal judge orders Indiana to cut the bull on birth certificates

Even though all of the plaintiff couples in this case were married lesbian spouses, Indiana refused to accept the non-birth mothers’ names for listing on birth certificates. The state’s position was that the database and the birth certificates generated from it are supposed to create a true record of the biological parentage of the child, and that because a same-sex spouse of a birth mother is not biologically related to the child, listing her would create a false record. In order to be listed, the same-sex spouse would have to adopt the child with the birth mother’s permission, involving expenses and delay, during which time the child would have only one legal parent.

However, given that Indiana does record the husbands of women who give birth through artificial insemination, Pratt accepted the plaintiffs’ argument that Indiana’s policy “violates the Equal Protection Clause,” because it was sex discrimination, pure and simple.

Since sex discrimination is subject to heightened judicial scrutiny, Indiana had the burden of justifying its policy by showing it advances an important state interest. Indiana presumes, without proof, that the husbands of birth mothers are the parents of their children, so the policy does not, in fact, advance the state’s asserted interest of creating a “true” record of the child’s biological parents. And Pratt was impatient with the state’s claim that the system was intended to get at the truth of the matter.

“The State Defendant’s argument that the birth mother should acknowledge that she is not married to the father of her child when she has been artificially inseminated or else she is committing fraud when she has been artificially inseminated is not consistent with the Indiana Birth Worksheet, Indiana law, or common sense,” the judge wrote. “The Indiana Birth Worksheet asks, ‘are you married to the father of your child,’ yet it does not define ‘father.’ This term can mean different things to different women. Common sense says that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception, and who intends to treat the child as his own, would indicate that she is married to the father of her child. Why would she indicate otherwise?”

Pratt pointed out that some other states had enacted specific statutory language to deal with the use of donor insemination by married couples and the issuance of appropriate birth certificates, but Indiana has failed to do so. She noted, however, that even in one such state, Wisconsin, litigation is pending because officials there have also been refusing to list same-sex spouses on birth certificates.

The process employed by Indiana, Pratt concluded, does not achieve its articulated purpose of creating a “true” record of biological parents and is administered in a way that clearly discriminated against same-sex couples. Rejecting the state’s argument that employing a parental presumption was not required under the US Supreme Court’s mandate last year that same-sex couples enjoy equal marriage benefits, she pointed out, “the state created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child’s birth certificate even when the husband is not the biological father. Because of Baskin [the Seventh Circuit’s 2014 marriage equality ruling] and Obergefell, this benefit — which is directly tied to marriage — must now be afforded to women married to women.”

Since Indiana failed to demonstrate a rationale for its policy to satisfy the heightened scrutiny required in equal protection cases, it clearly fell short in meeting the strict scrutiny standards that apply in analyzing a due process claim under Obergefell. Last year’s Supreme Court marriage equality ruling identified both clauses of the 14th Amendment as a source of the right to marry.

Pratt concluded, “Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana Legislature has stated the purpose of Title 31 is to protect, promote, and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment for female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers. As other district courts have noted, the holding of Obergefell will inevitably require ‘sweeping change’ by extending to same-sex married couples all benefits afforded to opposite-sex married couples. Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this action.”

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