On May 22, 2017, the 7th U.S. Circuit Court of Appeals heard oral arguments in Henderson v. Adams, a challenge to an Indiana law barring same-sex couples from appearing on their child’s birth certificate. The three-judge panel hearing the case appeared hostile to the plaintiffs’ claim that Indiana had unconstitutionally discriminated against same-sex couples. But in the months following arguments, it did not issue a decision. A year passed, then two. Now it has been 32 months, and the court has failed to decide the case.
It is extremely unusual for a federal appeals court to take this long—or anywhere near this long—to issue a ruling. The average gap between argument and decision on the 7th Circuit is about three months, and the court almost never takes longer than a year to decide a case. In Henderson, the court’s baffling silence has an unknown number of same-sex couples—perhaps hundreds—in legal limbo. For now, a lower-court order compels Indiana to place these couples’ names on their child’s birth certificate. By doing so, the state recognizes both individuals as the legal parents of their child. But if the 7th Circuit lifts that order, the state may remove the non-birth mother from those documents. As a result, that parent will become a legal stranger to her child. She will be forced to undergo the arduous process of stepparent adoption—which requires, among other things, a criminal background check, a home study, and $4,200.
The consequences of an anti-gay ruling for children—as well as parents like Jackie and Lisa Phillips-Stackman, one of the married couples who brought this case—would be dire. Their child, who has a rare chromosomal disorder, could lose health insurance obtained through Jackie, her non-birth mother. Birth certificates bestow a plethora of other rights upon parents, who use these documents to register a child in school, confirm their right to make medical decisions for their child, claim their child as a dependent for federal income taxes, and obtain their child’s passport. Moreover, if a parent dies, the child’s birth certificate may be necessary to obtain Social Security survivor benefits. Because of their legal precarity, the Phillips-Stackmans carry copies of their daughter’s birth certificate wherever they go.
Married opposite-sex couples face no such burdens to claiming legal parenthood. When a woman gives birth in Indiana, her husband is presumed to be the child’s second parent. The child is also deemed to have been “born in wedlock.” Indiana does not require a DNA test to confirm a husband’s paternity. The only individual who can rebut this “presumption” is the biological father, who can initiate a legal action claiming true paternity. But these challenges are exceedingly rare. The upshot of this regime is that when a heterosexual woman uses a sperm donor, Indiana deems her husband to be the father of the child.
By contrast, Indiana claims that the child of same-sex couples are, by definition, born “out of wedlock.” It refuses to extend the presumption of parenthood to non-biological parents and non-birth mothers like Jackie Phillips-Stackman. The Phillips-Stackmans argue that Indiana’s scheme violates Obergefell v. Hodges and Pavan v. Smith, two Supreme Court decisions that required states to recognize same-sex marriages “on the same terms and conditions” as opposite-sex marriages. In Pavan, the court clarified that states must provide same-sex couples with “the constellation of benefits that the States have linked to marriage.” It ruled that Arkansas must list same-sex couples on their child’s birth certificate.
The Supreme Court handed down Pavan just one month after the 7th Circuit heard oral arguments in Henderson. The Phillip-Stackmans’ attorneys asked the court for permission to provide further briefing in light of the ruling, but it did not respond. Pavan should resolve the Indiana case. Like Arkansas, Indiana lists married opposite-sex parents on their child’s birth certificate, no questions asked. Like Arkansas, Indiana grants a presumption of parenthood to the birth mother’s spouse—but only if he is a man. If Arkansas’ rule is unconstitutional, Indiana’s should be as well.
Indiana insists that it is merely recognizing a biological fact. But if that were true, the state would prohibit married opposite-sex couples from falsely claiming a biological link to their child. As the district court correctly noted, Indiana does no such thing. Women married to men who use artificial insemination can “enter a legal fiction” by claiming their husband as the father. Meanwhile, women married to women who use artificial insemination “are not allowed to enter into the same legal fiction.” This “unequal treatment of same-sex married women” plainly violates Obergefell and Pavan.
During oral argument at the 7th Circuit—which, again, took place just before Pavan came down in June 2017—the court resisted this logical application of Obergefell. The plaintiffs had the bad luck of drawing Judges Frank Easterbrook, Diane Sykes, and Joel Flaum, all conservative Republican appointees. Easterbrook and Sykes sounded hostile to the rights of same-sex couples. Sykes claimed that Obergefell and its predecessors “were marriage cases” and not “parenthood cases,” a dubious claim that, a month later, was flatly contradicted by Pavan. Easterbrook accused the plaintiffs of trying to conflate “facts of biology” and “facts about parental rights,” suggesting that this “blend” could actually harm children.
Sykes and Easterbrook’s real quarrel was not with the plaintiffs but with Obergefell itself.
Contrary to Sykes’ claim, that decision did involve parenthood: It explicitly recognized the “profound benefits” to children when their same-sex families receive full legal recognition, citing that interest as a constitutional “basis for protecting the right to marry.” Indiana’s refusal to extend the presumption of parenthood to same-sex couples clashes with this holding. It gives the children of opposite-sex couples conceived through artificial insemination a benefit denied to the children of same-sex couples conceived the same way. This discrimination cannot be squared with Obergefell.
But if Sykes and Easterbrook intended to mount an assault on the constitutional rights of same-sex families, why would it take them more than two years? Anthony Michael Kreis, a visiting professor at Chicago-Kent College of Law who specializes in LGBTQ rights, told me that “delaying a decision by years when there is controlling precedent from the Supreme Court is nothing short of bizarre.” Kreis noted that there’s no requirement that federal courts rule on cases within a particular time frame, but added that the court’s lollygagging “raises a real question” about whether this panel “takes LGBTQ rights seriously.”
Indianapolis lawyer William Groth, one of the attorneys representing the plaintiffs and their children, said he’s never seen a lag like this in over 40 years practicing in the 7th Circuit. “This extraordinary 32-month post-argument delay in issuing the panel’s opinion is unprecedented,” Groth told me. “It’s harmed our clients by causing them needless stress and anxiety.”
Collins Fitzpatrick, the 7th Circuit’s executive, told me in an email that he does not know why it’s taking so long for the panel to decide the fate of Indiana’s same-sex parents, but agreed that the delay was unusual. Fitzpatrick also told the Indiana Lawyer that the court has a “tradition” of issuing a decision in every case.
It appears that the 7th Circuit has just one undecided case older than this one, involving a voter suppression law in Wisconsin. The district court blocked large portions of that law, and in February 2017 it came before a panel that also included Sykes and Easterbrook. Both judges appeared unsympathetic to the plaintiffs seeking to topple the law. But that case has also disappeared.
Reached by email on Wednesday, Easterbrook declined to comment, writing that “judges cannot comment on pending litigation—or for that matter their own opinions.” But, he added, “I can say that these are difficult cases being actively worked on.” The other judges on the panel did not respond to inquiries.
The 7th Circuit’s delay in both cases does have an upside for the plaintiffs: Until it acts, the lower courts’ injunctions remain in place. So Indiana must continue to list same-sex parents on their child’s birth certificate and grant them full rights of parenthood unless Sykes, Easterbrook, and Flaum rule otherwise. But the possibility remains that, if Indiana eventually prevails, the state will promptly revoke those rights.
As the 7th Circuit maintains its silence, parents like the Phillips-Stackmans are anxiously waiting to learn whether Indiana must continue to recognize their daughter as their own. With fundamental rights hanging in the balance, the court has no plausible excuse for keeping mum.