This Slate article suggests that the new U.S. Supreme Court majority may be intent on rolling back same-sex marriage rights provided under the Obergfell ruling. There’s a landmark case from Arkansas that could figure in a bad outcome.
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.
That Arkansas case was one of the two decided previously.
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.
Should the U.S. Supreme Court overturn this ruling, well, you can figure where we’ll be in Arkansas, with a discrimination-favoring Republican legislature and an increasingly Republican Supreme Court (non-partisan in name only).
Slate notes further:
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 [as was the case in Arkansas]. 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.
This fight isn’t over thanks to Donald Trump’s Supreme Court appointments. And the Arkansas legislature is full of people ready to wage war on equal treatment of LGBT people in more than parental rights if that door is reopened. Happily, we’ll soon have a new president with a different view of the treatment of LGBTQ people.