Ashlee Henderson v. Kristina Box

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1141
ASHLEE and RUBY HENDERSON, et al.,
Plaintiffs-Appellees,
v.
KRISTINA BOX, Indiana State Health Commissioner,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cv-00220-TWP-MJD — Tanya Walton Pratt, Judge.
____________________
ARGUED MAY 22, 2017 — DECIDED JANUARY 17, 2020
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. The district court issued an
injunction requiring Indiana to treat children born into fe-
male-female marriages as having two female parents, who
under the injunction must be listed on the birth certificate.
209 F. Supp. 3d 1059, 1079–80 (S.D. Ind. 2016). Because Indi-
ana lists only two parents on a birth certificate, this effective-
ly prevents the state from treating as a parent the man who
provided the sperm, while it requires the identification as
2 No. 17-1141
parent of one spouse who provided neither sperm nor egg.
The judge concluded that this approach is required by the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment, which as understood in Obergefell v. Hodges,
135 S. Ct. 2584 (2015), oblige governmental bodies to treat
same-sex couples identically to opposite-sex couples. Be-
cause Indiana lists a husband as a biological parent (when a
child is born during a marriage) even if he did not provide
sperm, the district judge concluded, it must treat a wife as a
parent even if she did not provide an egg.
The district court’s understanding of Obergefell has been
confirmed by Pavan v. Smith, 137 S. Ct. 2075 (2017), which
holds that same-sex and opposite-sex couples must have the
same rights with respect to the identification of children’s
parentage on birth certificates. Pavan held unconstitutional a
provision of Arkansas’s law that required a birth certificate
to list as parents the names of the child’s mother and her
husband.
Plaintiffs in this suit contend that Pavan is equally appli-
cable to them. That Indiana uses a presumption rather than a
bright-line rule does not change the fact that both states treat
same-sex and opposite-sex marriages differently when de-
ciding how to identify who is a parent. And even in Arkan-
sas mutual agreement among mother, husband, and “puta-
tive father” could lead to a different list of parents on the
birth certificate. If that did not save Arkansas’s law, the pos-
sibility of rebujing the presumption does not save Indiana’s.
The state argues that Obergefell and Pavan do not control.
In its view, birth certificates in Indiana follow biology rather
than marital status. The state insists that a wife in an oppo-
site-sex marriage who conceives a child through artificial in-
No. 17-1141 3
semination must identify, as the father, not her husband but
the sperm donor. The plaintiffs do not contend that a regi-
men using biology rather than marital status to identify par-
entage violates the federal Constitution, but they submit that
Indiana’s law is status-based. Thus this appeal depends on
the resolution of a dispute about the meaning of Indiana
law. Once we decide who is right about the state’s system,
the outcome follows from Pavan.
The district court found forbidden discrimination by
pujing together three of Indiana’s statutes: Ind. Code §§ 31-
9-2-15, 31-9-2-16, and 31-14-7-1. The first of these says:
“Child born in wedlock” … means a child born to:
(1) a woman; and
(2) a man who is presumed to be the child’s father under IC
31-14-7-1(1) or IC 31-14-7-1(2) unless the presumption is re-
bujed.
The second provides:
“Child born out of wedlock” … means a child who is born to:
(1) a woman; and
(2) a man who is not presumed to be the child’s father under
IC 31-14-7-1(1) or IC 31-14-7-1(2).
And the third reads:
A man is presumed to be a child’s biological father if:
(1) the:
(A) man and the child’s biological mother are or have
been married to each other; and
(B) child is born during the marriage or not later than
three hundred (300) days after the marriage is termi-
nated by death, annulment, or dissolution;
4 No. 17-1141
(2) the:
(A) man and the child’s biological mother ajempted to
marry each other by a marriage solemnized in appar-
ent compliance with the law, even though the mar-
riage:
(i) is void under IC 31-11-8-2, IC 31-11-8-3, IC 31-
11-8-4, or IC 31-11-8-6; or
(ii) is voidable under IC 31-11-9; and
(B) child is born during the ajempted marriage or not
later than three hundred (300) days after the ajempted
marriage is terminated by death, annulment, or disso-
lution; or
(3) the man undergoes a genetic test that indicates with at
least a ninety-nine percent (99%) probability that the man is
the child’s biological father.
The district court treated the presumption in §31-14-7-1(1)(A)
as the principal problem: a husband is presumed to be a
child’s biological father, so that both spouses are listed as
parents on the birth certificate and the child is deemed to be
born in wedlock. There’s no similar presumption with re-
spect to an all-female married couple—or for that majer an
all-male married couple. The district court’s injunction,
which requires both women in a female-female marriage to
be listed as parents (and treated as having parental rights
and duties), solves the problem.
Indiana tells us that looking only at the statutory text is
myopic. It wants us to place substantial weight on some-
thing the statutes do not say: How the presumption of male
parentage in a male-female marriage is overcome. According
to the state, women who give birth are asked to provide the
name of the child’s “father”—not of the “husband” but of
the “father.” And one form (the “birth worksheet”) given to
No. 17-1141 5
new mothers indeed calls for this information, though with-
out defining the terms. The state wants us to treat this form,
rather than §31-14-7-1(1), as the governing rule.
As the state sees things, “father” means “biological fa-
ther,” so if a child is a result of in vitro fertilization using
donated sperm, or of sexual relations outside marriage, then
the presumption has been overcome and there is no remain-
ing difference between female-male marriages and female-
female marriages. In either situation the birth mother must
name as the child’s father the man who provided the sperm,
and every birth certificate will have one male parent and one
female parent. To achieve any other result, the state insists, a
married couple (all-female, all-male, or opposite-sex) must
use the adoption system. Only following an adoption would
it be proper to list “Mother #1” and “Mother #2” on a child’s
birth certificate, as the district judge required. Indiana issues
an amended birth certificate following adoption, while keep-
ing the original as a record of biological parentage. The state
then achieves two objectives: identifying biological parent-
age in the original birth certificate, and identifying legal par-
entage (and duties) in the second. Trying to do both is not
discriminatory, Indiana tells us.
The district judge thought the state’s account of mothers’
behavior to be implausible. Some mothers filling in the form
may think that “husband” and “father” mean the same
thing. Others may name their husbands for social reasons,
no majer what the form tells them to do. Indiana contends
that it is not responsible for private decisions, and that may
well be so—but it is responsible for the text of Ind. Code §31-
14-7-1(1), which establishes a presumption that applies to
opposite-sex marriages but not same-sex marriages. Oppo-
6 No. 17-1141
site-sex couples can have their names on children’s birth cer-
tificates without going through adoption; same-sex couples
cannot. Nothing about the birth worksheet changes that rule.
Indiana insists that the presumption of parenthood in an
opposite-sex marriage does not have legal consequences.
Even after a husband’s name is on the birth certificate, the
state maintains, that does not affect parental rights and du-
ties. A husband does not have any legal rights or duties un-
less he is the biological father. See Cochran v. Cochran, 717
N.E.2d 892, 894 (Ind. App. 1999). Yet even a bursting-bubble
presumption—one that vanishes as soon as it is contested—
has some consequences. Unless the presumption is contested,
the husband is deemed the father too, with parental rights
and parental duties, in a way that both women in a female-
female marriage are not.
One problem with this suit has been the paucity of state
decisions interpreting the three statutes at issue. Indiana
Code §§ 31-9-2-15 and 31-9-2-16 have never been the subject
of litigation, while Ind. Code §31-14-7-1 has rarely been liti-
gated. We have been tempted to certify to the Supreme
Court of Indiana the question whether the presumption in
Ind. Code §31-14-7-1 is indeed a bursting bubble and wheth-
er the instructions on the birth worksheet should be treated
as if they had been enacted. But we have decided not to cer-
tify, because a few decisions hold that the statutory pre-
sumption has real force, and none holds otherwise. For ex-
ample, Lamey v. Lamey, 689 N.E.2d 1265, 1268 (Ind. App.
1997), holds that the presumption cannot be overcome after
a husband dies—something that may happen at any time.
And Myers v. Myers, 13 N.E.3d 478, 482–83 (Ind. App. 2014),
holds that only the clearest of evidence can overcome the
No. 17-1141 7
presumption if the husband has signed the birth certificate.
Another decision says that this means clear and convincing
evidence, a long way from a bursting bubble. Richard v. Rich-
ard, 812 N.E.2d 222, 228 (Ind. App. 2004).
There’s a deeper problem and a stronger reason not to
certify: all of the contested statutes were enacted long before
Obergefell and Pavan. They are products of a time when only
opposite-sex marriages were recognized in Indiana. There’s
nothing a court can do to remove from the state’s statute
books provisions assuming that all marriages are opposite-
sex. Judges could reduce the weight of a presumption that a
husband is also a father, but no act of intellectually honest
interpretation could make that presumption vanish. It would
not be seemly for us to ask the Supreme Court of Indiana to
save the state statutes by rewriting them. They are what they
are. The legislature can rewrite them; the judiciary cannot.
In revising the statutes, a legislature could take account
of the fact—as the current statutes do not—that both women
in a same-sex marriage may indeed be biological mothers.
Indiana asserts an interest in recording biological facts, an
interest we cannot gainsay. But Indiana’s current statutory
system fails to acknowledge the possibility that the wife of a
birth mother also is a biological mother. One set of plaintiffs
in this suit shows this. Lisa Philips-Stackman is the birth
mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife,
was the egg donor. Thus Jackie is both L.J.P.-S.’s biological
mother and the spouse of L.J.P.-S.’s birth mother. There is
also a third biological parent (the sperm donor), but Indiana
limits to two the number of parents it will record.
We agree with the district court that, after Obergefell and
Pavan, a state cannot presume that a husband is the father of
8 No. 17-1141
a child born in wedlock, while denying an equivalent pre-
sumption to parents in same-sex marriages. Because Ind.
Code §31-14-7-1(1) does that, its operation was properly en-
joined.
Other parts of the district court’s remedy, however, are
not appropriate. For example, the judge declared that the
three statutes are invalid in their entireties and forbade their
operation across the board. Yet some parts of these statutes
have a proper application. For example, Ind. Code §31-14-7-
1(3) declares that a man is deemed to be a biological father if
a genetic test shows a 99% or higher probability of
parenthood. And Ind. Code §31-14-7-1(2), operating in con-
junction with Ind. Code §31-9-2-15(2), provides that a child
is born in wedlock if the parents ajempted to marry each
other but a technical defect prevented the marriage from be-
ing valid. Neither of these provisions even arguably violates
the Constitution, as understood in Obergefell and Pavan. A
remedy must not be broader than the legal justification for
its entry, so the order in this suit must be revised.
Some parts of the injunction, like some parts of the dis-
trict court’s opinion, appear to turn a presumption of parent-
age into a rule of parentage, so that in a same-sex marriage
the birth certificate must list “Mother #1” and “Mother #2”
even if, say, the birth mother conceives through sexual rela-
tions with a man and freely acknowledges the child’s biolog-
ical parentage. As we have stated several times, the Four-
teenth Amendment does not forbid a state from establishing
a birth-certificate regimen that uses biology rather than mar-
ital status to identify parentage. A state is entitled to separate
the questions “whose genes does a given child carry?” from
“what parental rights and duties do spouses have?” The
No. 17-1141 9
problem is that Indiana appears to merge these questions
while specifying that biological heritage wins in the event of
conflict—that’s the function of §31-14-7-1(3)—yet providing
husbands with a presumption, withheld from wives, that a
given legal status supports an inference of parenthood.
There’s no constitutional reason why a presumption that can
be defeated for men can’t be defeated for women too. This
means that although the district court was on solid ground
to enjoin the state “from enforcing Indiana Code §§ 31-9-2-
15, 31-9-2-16, and 31-14-7-1 in a manner that prevents the
presumption of parenthood to be granted to female, same-
sex spouses of birth mothers” (209 F. Supp. 3d at 1079), other
language needs revision.
Finally, some language in the opinion and injunction
might be understood to suggest that female-female married
couples must be treated differently from male-male couples,
for whom adoption is the only way to produce “Father #1”
and “Father #2” on a birth certificate. Although the plaintiffs
in this suit are adult women (and children of both sexes),
and it would therefore be inappropriate for the court to de-
cide the proper treatment of children born during male-male
marriages, it would be helpful for the district court to pro-
vide expressly that this question is left open for resolution by
the legislature or in some future suit. It also is important to
be clear that this litigation does not decide what parental
rights and duties (if any) biological fathers such as sperm
donors have with respect to the children of female-female
marriages. No biological father is a litigant.
Having expressed these concerns, we must be clear what
need not change. The district court’s order requiring Indiana
to recognize the children of these plaintiffs as legitimate
10 No. 17-1141
children, born in wedlock, and to identify both wives in each
union as parents, is affirmed. The injunction and declaratory
judgment are affirmed to the extent they provide that the
presumption in Ind. Code §31-14-7-1(1) violates the Consti-
tution. The remainder of the judgment is vacated, and the
case is remanded for proceedings consistent with this opin-
ion.