The Seventh Circuit Court of Appeals heard oral arguments last week after the State of Indiana appealed a federal judge’s ruling that permitted same-sex couples to list both names on their child’s birth certificate. In June 2016, the U.S. District Court for the Southern District of Indiana issued a decision allowing the placement of both females in a same-sex marriage on their child’s birth certificate. Prior to this ruling, the State of Indiana permitted only the listing of a mother and a father on a birth certificate. As a result, in the case of female married same-sex couples, only the woman who carried the child could be listed as the child’s parent on the birth certificate. The child was considered born out of wedlock, and the spouse needed to adopt the child to become a legal parent. The Court held that Indiana’s refusal to recognize two mothers on a birth certificate violated the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution, because the State did not extend equal rights to married same-sex couples. After the decision was issued, the State of Indiana began placing both married same-sex parents’ names on their children’s birth certificates, which was a very progressive step that continues to provide a great benefit to our married same-sex clients. Click here to read our blog post about the 2016 district court ruling for more information.
During the oral arguments, Indiana Solicitor General Thomas Fisher argued that Indiana law only provides parental rights through biology or adoption, and contended that the district court’s decision created a third category that “creates inequality and undermines the rights of the biological fathers.” Meanwhile, the attorney representing the plaintiffs, Karen Celestino-Horseman, responded that Indiana law does not treat married same-sex couples and married heterosexual couples equally. For example, the law treats female spouses of women who underwent artificial insemination differently than male spouses of women in the same scenario, as the male spouse would be the presumed legal father of the child under Indiana law. The Seventh Circuit frequently alluded to biology during the oral arguments, with Judge Diane S. Skyes stating, “You can’t overcome biology and if the state defines parenthood by biology, no argument under Equal Protection Clause of the substantive due process clause can overcome that.” Celestino-Horseman countered that parenthood is no longer defined by biology.
The Seventh Circuit is taking the case under advisement and will make a ruling at a later date. We are hopeful that the Seventh Circuit makes a decision that accords equal rights to married-same sex couples, and continues to allow both parents to be listed on their children’s birth certificates in the State of Indiana. Stay tuned to our blog for more updates on this case.