FAMILIES
Will SCOTUS Narrow Marriage Equality in Parenting?
Conservatives signal hope to revisit spousal parental presumption for birth certifi cates
BY ARTHUR S. LEONARD
Now that there is a 6-3
conservative majority
on the Supreme Court,
it is possible that the
court will begin a process of narrowing
the scope of its 2015 marriage
equality ruling in Obergefell
v. Hodges.
That is at least one interpretation
of the court’s request for additional
briefi ng on a petition for
review fi led by the State of Indiana
in Box v. Henderson,a case in
which the Seventh Circuit Court of
Appeals found that the presumption
that a birth mother’s spouse is
a newborn child’s parent must be
applied regardless of whether that
spouse is male or female.
The Seventh Circuit’s decision
relied on Obergefell and the subsequent
2017 decision by the high
court in Pavan v. Smith, which involved
the listing of a birth mother’s
lesbian spouse on their child’s
birth certifi cate and overruled an
Arkansas Supreme Court decision
adverse to the interests of samesex
couples.
When Indiana fi led its petition for
review in June, the respondents —
same-sex mothers challenging the
state’s policy of not listing a lesbian
birth mother’s wife on their child’s
birth certifi cate — waived their
right to respond, likely assuming
the court would not be interested
in revisiting an issue that it had
decided in Pavan with a per curiamdecision
— one that does not
Ruby and Ashlee Henderson, seen here with their children, are the named plaintiffs in a case challenging
Indiana’s policy of not listing both same-sex parents on their child’s birth certifi cate.
identify a specifi c justice authoring
the majority opinion — and with
only three dissenting votes.
Two of the six judges in that 2017
majority, however — Ruth Bader
Ginsburg and Anthony Kennedy
— no longer sit on the court.
Evidently the Box v. Henderson
petition, lacking any response,
caught the eyes of one or more
of the conservative justices, who
had the clerk of the court send a
request to the women who challenged
the Indiana policy, seeking
a brief in response. That was fi led
on November 10, and on November
23 the atate fi led a reply.
An argument that has been persuasive
to lower courts — apart
from the mandate from Obergefell
and Pavan to apply “equal treatment”
RUBY AND ASHLEE HENDERSON
to marriages of same-sex
couples compared to different-sex
couples — is that states have employed
the presumption in favor of a
birth mother’s husband even when
it was clear he was not the biological
father, as for example when
donor sperm was used to inseminate
the wife with the husband’s
consent or when the husband and
wife were geographically separated
when she became pregnant.
In other words, under existing
policies in many states, the parental
presumption has not been
limited to cases in which it was
rational to assume that the birth
mother’s husband was in fact the
child’s biological father.
Though Chief Justice Roberts
dissented in Obergefell, he did join
the per curiam majority in Pavan.
But even if he sticks with that position,
there are only three other justices
remaining on the court who
joined him — Stephen Breyer, Sonia
Sotomayor, and Elena Kagan.
Justices Clarence Thomas and
Samuel Alito, on the other hand,
joined Neil Gorsuch’s dissent, asserting
that the issue was not settled
defi nitively simply on the basis
of Obergefell.
That means the resolution on
this case falls to the positions Justices
Brett Kavanaugh and Amy
Coney Barrett adopt, though Indiana
would need the votes of both to
prevail in the case.
The state’s petition for review
will be taken up in the court’s December
11 conference, though petitions
are sometimes rolled over for
several conferences before a decision
is made on granting review. If
the court were to grant review by
the end of January, oral argument
and a decision would likely come
by the end of the court’s term in
June. A later grant of review would
likely push the case off until the
October 2021 term.
The several same-sex couples
who brought the challenge to the
Indiana policy are represented by
Karen Celestino-Horseman of Austin
& Jones in Indianapolis, the
counsel of record, as well as Catherine
Sakimura, Shannon Minter,
and Christopher Stoll from the National
Center for Lesbian Rights
and a number of other law fi rms
from Indianapolis and nationwide.
CRIME
On Day of Remembrance, Trans Woman Killed in TX
Asia Jynaé Foster found dead in the road with stab wounds November 20 in Houston
BY MATT TRACY
A Black transgender woman
was found dead in
Houston on November
20, Transgender Day of
Remembrance, when a passerby
discovered her body while walking
on a road.
Houston police said cops who responded
to a call that Friday evening
found a 22-year-old victim in
the roadway at 3400 East Greenridge
Drive. The victim was found
with stab wounds at approximately
10:20 p.m. and paramedics who
arrived at the scene pronounced
her dead.
The police department has
withheld identifi cation of the victim
pending verifi cation from the
Harris County Institute of Foren-
➤ HOUSTON MURDER, continued on p.5
December 3- December 16, 2 4 020 | GayCityNews.com
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