We all rejoiced when the Obergefell v. Hodges decision was announced in 2015. Same-sex marriage became legal throughout the United States! A tremendous victory. But as these things go, a Supreme Court victory like that one, unfortunately, does not mean that all state laws and policies related to marriage and families and parentage change overnight. Indeed, there are generally three ways to change a law. First, a government agency could proactively amend its policies to conform with the Supreme Court ruling. Second, the legislature—perhaps responding to pressure from its constituents—could vote on a bill to amend the law. And third and finally, a lawsuit could force the government to change its policies in conformance with another judicial decision.
After Obergefell, we Ohioans were lucky* in that the Ohio Department of Health went ahead and changed its policy regarding the listing of parents on a child’s birth certificate. So long as same-sex parents were married at the time of their child’s birth and they each give consent, both parents’ names can be listed on the child’s birth certificate. That’s in Ohio.
Our neighbors in Indiana were not so lucky. Even after Obergefell, the Indiana State Health Commissioner continued to enforce the state’s view of the law, which, they argued, mandated that birth certificates may only have one man and one woman listed as parents. In essence, Indiana asserted that its birth certificate policy was one that was grounded solely in recording “biological facts,” rather than marital status.
Several queer couples filed a lawsuit against the state, challenging this understanding of the law after Obergefell. Their basic argument was that Obergefell obliges the state of Indiana and its governing bodies to treat same-sex couples identically to opposite-sex couples. The trial court held in the plaintiffs’ favor.
On appeal to the 7th Circuit Court of Appeals (the 7th Circuit covers Indiana, Illinois, and Wisconsin), the appellate court affirmed the lower court’s decision. What the court found instructive was the fact that Indiana—purportedly only interested in recording “biological facts”—does recognize the marital presumption of paternity for straight couples. This presumption of paternity is a presumption that the man in a heterosexual, married couple is the father of any child of the marriage. The presumption can be rebutted with genetic testing, but it remains true that Indiana, in allowing this presumption to persist, is perhaps not as devoted to “biological facts” as it proclaims. More importantly, in recognizing a marital presumption of parentage for straight couples and not for queer couples, the state of Indiana clearly was treating same-sex couples differently than their straight counterparts.
Court watchers like myself have been waiting on this decision from the 7th Circuit for a while: it was argued in May 2017 and the decision was only released a couple of weeks ago. Good things come to those who wait, I guess, because the decision firmly extends the principles laid out in Obergefell to ensure LGBTQ equality in Indiana.
*ADDENDUM: My praise of the Ohio Department of Health, of course, does not quite extend to its continued refusal to allow a person to change their gender marker on their Ohio birth certificate. If you’ve been following this blog or our social media content, you may know that there is a pending lawsuit challenging this practice, led by our partners at the ACLU of Ohio. The latest update on the litigation is that the ACLU has filed a motion (a request) to the court on January 16th that the law argued to the court thus far—this litigation has been going on since March 2018—is conclusively in the plaintiffs’ favor and the court should so rule, thereby ending the litigation. In a previous decision, the court used language and stated principles giving us hope that a favorable decision awaits. And now, with this latest filing by the ACLU, it is possible that such a decision will be made within the year. Stay tuned!