Two of the Supreme Court’s most conservative justices, Samuel Alito and Clarence Thomas, recently urged their colleagues to hear a challenge to the court’s five-year-old ruling on marriage equality. In an October written opinion, Alito and Thomas claimed that the SCOTUS ruling in Obergefell v. Hodges presented threats to religious freedom “that only it can fix.”
According to Slate, the right-wing judges may get their wish sooner rather than later. In a Tuesday report, the publication claims that the nine Supreme Court justices will meet on December 11 to decide whether to take up a challenge to same-sex parental rights. On Monday, Indiana’s attorney general, Curtis Hill, filed a petition urging the court to review a Seventh Circuit Court of Appeals ruling in January which found that state’s refusal to list both same-sex parents on their child’s birth certificate is unconstitutional. It’s the second such petition from Indiana this year.
The long-running case, known as Box v. Henderson, dates back six years. In 2014, the Tippecanoe County Health Department refused Ashlee and Ruby Henderson, a lesbian couple who live in Lafayette, Indiana, a birth certificate for their newborn child which would have bore both of their names. According to the Journal and Courier newspaper, the Hendersons blacked out the entry for “Father” on the form and wrote in “Mother #2” instead, but the change was rejected.
The couple filed a lawsuit in 2015, along with seven other couples, challenging the decision as a violation of the Equal Protection Clause under the 14th Amendment — which requires governmental entities to extend “equal protection of the laws” to all citizens. The U.S. District Court for the Southern District of Indiana ruled in favor of the couples in June 2016 and then the 7th Circuit unanimously agreed earlier this year.
“[A] state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages,” Judge Frank Easterbrook wrote in a 10-page opinion.
As Slate notes, the issue has already been decided by the Supreme Court itself on “two different occasions.” Writing for the majority in the 2015 Obergefell ruling, Judge Anthony Kennedy specifically cited the refusal of equal rights in regards to “birth
and death certificates” as means by which same-sex couples “are denied the constellation of benefits that the States have linked to marriage.” Kennedy argued, thusly, that the Constitution guarantees these couples equality “on the same terms and conditions as opposite-sex couples.”
While some may claim that the reference to “birth certificates” was insufficiently vague and did not resolve the question, SCOTUS clarified its stance two years later in Pavan v. Smith, which pertained to a case in Arkansas. The court ruled that the “constellation of benefits that the states have linked to marriage” pertain to the right of both same-sex parents to be listed on their child’s birth certificate.
But in its appeal to the Supreme Court, Hill argued that the court’s ruling in Pavan v. Smith cannot be applied to Indiana because its reasoning for refusal is different from the grounds laid out by the Arkansas Department of Health. While Arkansas’ policy was based on a false presumption that a birth mother’s husband is automatically the father of her child, the Indiana attorney general claims that the state’s policy is predicated not on marriage but solely on biology alone.
