Jurisprudence

The Supreme Court Rejects Opportunity to Roll Back Marriage Equality

Indiana asked the justices to strip rights from same-sex parents. They passed.

People wave rainbow flags outside the Supreme Court.
Outside the Supreme Court after the release of the Obergefell decision in 2015. Mark Wilson/Getty Images

On Monday, the Supreme Court turned away Indiana’s attempt to strip equal parenting rights from married same-sex couples. The court’s decision ensures that same-sex couples in Indiana will remain the lawful parents of their own children, ending the state’s six-year-long crusade to remove their names from their children’s birth certificates. But beyond Indiana, Monday’s order also suggests that a majority of the justices aren’t eager to roll back marriage equality.

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Box v. Henderson involves eight married lesbian couples in Indiana who conceived through artificial insemination. When a married opposite-sex couple uses a sperm donor, the birth mother’s husband is listed as the father on their child’s birth certificate. Genetics alone does not determine parenthood in the state. When married same-sex couples used a sperm donor, however, Indiana officials refused to identify the birth mother’s wife as the child’s second parent. Instead, they insisted that this spouse undergo stepparent adoption, an invasive, lengthy, and expensive process.

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In 2014, the lesbian couples sued the state to place their names on their children’s birth certificates. A federal judge sided with the plaintiffs in 2016, but Indiana appealed to the U.S. Court of Appeals for the 7th Circuit. After a mysterious 32-month delay, the 7th Circuit affirmed the judge’s decision. It noted that the Supreme Court already settled this issue twice. First, in 2015’s Obergefell v. Hodges, the court compelled states to provide same-sex couples with the “constellation of benefits” linked to marriage, explicitly mentioning birth certificates. Then, in 2017’s Pavan v. Smith, the court reiterated that states must place same-sex parents on their child’s birth certificate if that benefit is provided to opposite-sex parents who lack genetic ties to their child.

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In spite of these precedents, Indiana Attorney General Curtis Hill, a Republican, appealed the 7th Circuit’s decision to the Supreme Court. Hill effectively sought to overturn Pavan, and roll back Obergefell, by persuading SCOTUS to let states resume discrimination against same-sex parents. The case would have given the Supreme Court’s new conservative majority an opportunity to begin chipping away at marriage equality by denying same-sex couples a right granted to their opposite-sex counterparts. On Monday, though, the court declined to take up Indiana’s appeal, bringing the case to a close. There were no opinions and no noted dissents.

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Monday’s decision can be read two different ways. First, it might indicate that the conservative bloc has little appetite to take aim at Obergefell. Justices Samuel Alito and Clarence Thomas recently expressed their disdain for that decision, suggesting that it should be circumscribed or overturned. Notably, though, no other conservative joined their call to arms. These justices are clearly interested in authorizing discrimination against LGBTQ people in the name of religious liberty. For instance, they may soon compel Philadelphia to fund a foster care agency that won’t work with same-sex couples. But even if the conservative justices grant businesses and government contractors a constitutional right to discriminate against gay people, they might not bring back overt restrictions on same-sex couples’ right to marry and raise children.

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Why not? In part, it’s difficult to unscramble the eggs: There are now hundreds of thousands of married same-sex couples in the United States, many of whom have children together. If the Supreme Court reversed Obergefell and Pavan, it could allow states to nullify these marriages and even revoke couples’ parentage over their children. At least some of the conservative justices surely understand that this devastating blow to American families would be a publicity nightmare for the court. Moreover, respect for precedent requires the court to respect “reliance interests”—that is, Americans’ reliance on the rights guaranteed to them by the judiciary. A decision that has created strong reliance interests should not be overturned lightly. And as Justice Neil Gorsuch wrote in April, reversing a precedent that allows Americans to marry would produce the kind of “social disruption” that the court traditionally seeks to avoid.

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Or perhaps Box v. Henderson was simply the wrong vehicle. There is a second reason the Supreme Court might have rejected the case. As a rule, SCOTUS decides questions of federal law, not state law. Indiana courts have already held that, under state law, same-sex spouses “who knowingly and voluntarily consent to artificial insemination are the legal parents of the resulting child.” The attorney general insisted that Indiana only recognizes “biological parentage,” but his position appears to be a misrepresentation of the law. There is a possibility that the Supreme Court did not want to get bogged down in a dispute over state law and turned away the case because it did not cleanly present a constitutional question.

In truth, we do not yet know what this Supreme Court is capable of. That uncertainty makes it difficult to draw any firm conclusions from Monday’s order. Other conservative politicians will continue to test the waters by asking SCOTUS to restore state discrimination against same-sex couples. Just as Republicans have tested the limits of Roe v. Wade over the years by passing ever more stringent restrictions on abortion, they may test the limits of Obergefell by eroding the legal benefits provided to gay people. The court’s silence on marriage equality is not conclusive evidence that same-sex couples’ rights are safe. A future case—one that lacks a messy question of state law and requests a less blatantly inhumane outcome—could still command the court’s attention.

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Whatever the court’s reasoning, Monday’s decision will come as a relief for same-sex parents in Indiana, who have lived in limbo for years. Two of the plaintiffs carried around copies of their child’s birth certificate because of this legal precariousness. William Groth, an Indiana lawyer who represented the couples, told me on Monday that he and his clients “are thrilled that justice has at long last been served for them, their children, and for all married same-sex couples who conceive and give birth during their marriage.” He noted that “the promises of full equality made by the court to gay and lesbian citizens in Obergefell are a big step closer to being fully kept today.”

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