Indiana must list same-sex parents on their child’s birth certificate, the 7th U.S. Circuit Court of Appeals ruled on Friday in a 10-page opinion that took 32 months to issue.
The case, Henderson v. Box, is easy to resolve under Supreme Court precedent. In his decision for a unanimous panel, Judge Frank Easterbrook explained that Indiana’s parentage scheme unconstitutionally discriminates against same-sex couples. 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, 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 are deemed to be born “in wedlock,” while children born to same-sex couples are considered to be born “out of wedlock.”
These rules, Easterbrook wrote, run afoul of the Supreme Court’s decisions in Obergefell v. Hodges and Pavan v. Smith. In Obergefell, the court required states to recognize same-sex marriages; in Pavan, it protected the equal rights of same-sex parents, ordering Arkansas to list married same-sex couples on their child’s birth certificate. After Pavan, Henderson should have been an easy case: Indiana engaged in the same discrimination that SCOTUS found unconstitutional in Pavan.
Yet the 7th Circuit panel—made up of Easterbrook, Diane Sykes, and Joel Flaum—spent 32 months mulling the matter, as Slate reported. In an email earlier this month, Easterbrook told Slate that the “difficult” case was being “actively worked on.” His decision implies that the panel may have dragged its feet because it contemplated asking the Indiana Supreme Court to clarify technical questions of state law. But the panel decided against it because no court could “save the state statutes by rewriting them.”
Friday’s decision ends a long period of uncertainty for Indiana’s same-sex parents. A lower court blocked the Indiana law in June 2016, directing the state to list both parents on their child’s birth certificate, regardless of sex. But same-sex parents still lived in fear that the 7th Circuit could reverse that decision, allowing Indiana to remove the non-biological parent’s name from the birth certificate—and revoke their legal parenthood. It is possible that Indiana will appeal the decision to SCOTUS. It seems unlikely, though, that the justices will have an appetite to reverse Pavan less than three years after it came down. (Notably, too, Chief Justice John Roberts, a dissenter in Obergefell, did not dissent from Pavan.)
As Henderson illustrates, the federal judiciary must remain vigilant against state efforts to diminish the equality of gay, lesbian, and bisexual people. It may not have been easy for Easterbrook, Sykes, and Flaum—all conservative Republican appointees—to strike down Indiana’s scheme. But their decision was plainly compelled by precedent. As other courts defy SCOTUS in the hopes of shifting the law rightward, the 7th Circuit deserves credit for providing justice, however overdue, to Indiana’s same-sex parents.
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