On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip same-sex couples of their equal parenting rights. He did so at the request of the court, which is considering taking up his case. 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.
What’s strange about this case, Box v. Henderson, is that it poses a question the Supreme Court has already answered—twice. The plaintiffs are eight married lesbian couples in Indiana who used a sperm donor to conceive. When a married opposite-sex couple uses a sperm donor, Indiana recognizes the birth mother’s husband as the child’s parent. When a married same-sex couple does the same thing, however, the state refuses to list the birth mother’s wife as the child’s parent. In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.
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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. In Florida, for instance, a federal judge held that Obergefell “plainly requires” the state to list married lesbian couples as the parents of a child conceived with a sperm donor, since the state grants this right to married opposite-sex couples. (Florida’s Republican attorney general settled the case in apparent recognition that an appeal would be doomed.) 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.
Three and a half years after Pavan, Indiana is seeking to abolish this rule in Box v. Henderson. Its 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.
Had the panel issued its decision within a typical time frame—that is, in 2017—Indiana might have just given up. 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. If Indiana decided to appeal anyway, SCOTUS surely would have affirmed the 7th Circuit or simply turned away the case.
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.
Hill, the Indiana attorney general, has tried to distinguish Box v. Henderson from Pavan by misrepresenting state law. He claims that the case is about a state’s right to acknowledge “biological distinction between males and females.” According to Hill, Indiana law only presumes that a birth mother’s husband is the father of her child. A birth mother’s wife, by contrast, “is never the biological father,” so she does not deserve the presumption of parentage. But this argument uses biology as a smoke screen for discrimination. No husband is ever asked to prove his paternity before he is listed on his wife’s birth certificate. Why must a wife undergo this indignity?
Moreover, it’s untrue that a birth mother’s wife always has “no biological connection” to her child, as Hill insists. One set of plaintiffs in this case, a lesbian couple, prove this point: One partner provided an egg, and her wife carried the child. Thus, the birth mother and her wife have a biological link to their offspring. Again: If husbands receive a presumption of parentage because they may be a biological parent, why shouldn’t wives? After all, contrary to Hill’s archaic view, a birth mother’s wife might be a biological parent, too.
Hill’s feeble efforts to distinguish Box v. Henderson from Pavan are probably a pretext to give SCOTUS a shot at eroding Obergefell itself. If the court’s new conservative supermajority sides with Indiana, it will allow states to resume discriminating against same-sex parents—and, by extension, reviving second-class marriages for gay people. Opposite-sex couples would remain legal parents of their children, including those conceived with a donor. Same-sex couples, by contrast, would lose this presumption of parentage; their marriage would no longer entitle them to equal rights over their child. Indiana provides a chilling example: If Hill prevails, the wives of birth mothers will have to go through stepparent adoption, an arduous, invasive process that costs more than $4,000.
This term has already brought ominous signs for marriage equality. Justices Clarence Thomas and Samuel Alito have called for the court to either overturn Obergefell or let government employees discriminate against same-sex couples. In October, a majority of justices indicated that they will force Philadelphia to fund a foster care agency that refuses to work with same-sex parents. With Kennedy and Ginsburg gone, the walls are closing in on LGBTQ Americans’ right to equal marriage. And if the court takes up Box v. Henderson, same-sex couples will need to prepare for a ruling that could turn them into legal strangers to their own kids.
