Indiana Attorney General Curtis Hill asked the U.S. Supreme Court on Monday to strip equal parenting rights from same-sex couples, according to Slate.
Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children.
The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.
Slate reported that in the case of Box v. Henderson, the “plaintiffs are eight married lesbian couples in Indiana who used a sperm donor to conceive.”
Indiana recognizes the husbands of mothers who use a sperm donor as the child’s parents, but the state does not extend the same to the wives of mothers who use sperm donors to conceive. In both cases, Slate noted, the second parent is not a biological parent, and Indiana is clearly discriminating against the wives of birth mothers.
Slate also noted that the Supreme Court has already answered this question twice.
On two different occasions, the Supreme Court prohibited this kind of mistreatment. In Obergefell v. Hodges, the court held that the Constitution entitles same-sex couples to marriage “on the same terms and conditions as opposite-sex couples.” Most courts understood that this requirement compelled them to provide the equal benefits to married same-sex parents.
When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.
Indiana now seeks to do away with this rule with Box v. Henderson.
Slate reported that the state’s efforts “have been aided by a mysterious delay at the 7th U.S. Circuit Court of Appeals.”
A three-judge panel for the 7th Circuit heard arguments in Box v. Henderson on May 22, 2017. For reasons that remain unclear, the panel waited to issue its decision until Jan. 17, 2020—a 32-month delay. (The average gap between arguments and a decision is about three months.)
All three judges on the panel are conservative Republican appointees. Yet they unanimously agreed that Obergefell and Pavan compel Indiana to list same-sex parents on their child’s birth certificate when they conceive via artificial insemination.
The unusual delay is significant in that the makeup of the Supreme Court has shifted dramatically since 2017: “In 2017, all five justices who joined both Obergefell and Pavan were still on the bench. Justice Anthony Kennedy had not yet retired, and Ruth Bader Ginsburg was alive.”
Today, the Supreme Court looks very different. Kennedy, who authored Obergefell, has been replaced by the far more conservative Justice Brett Kavanaugh, who has not shown support for LGBTQ rights. Ginsburg has been replaced by Justice Amy Coney Barrett, who is likely even more conservative than Kavanaugh.
And there are already indications that the new court has its knives out for Obergefell. The justices were set to consider Box v. Henderson at their private conference on Sept. 29. One day before that conference, though, the court asked the plaintiffs to respond to Indiana’s petition. This unusual step indicates that the justices are interested in taking up the case. The plaintiffs complied, urging the court to turn away Indiana’s appeal. Now the justices are scheduled to consider the case at their Dec. 11 conference.
Image: Supreme Court Justice Amy Coney Barrett delivers remarks during her swearing-in ceremony. (Official White House Photo by Andrea Hanks / Public Domain)