FAMILIES
SCOTUS Won’t Review Lesbian Mom’s Parental Rights
Indiana required to include married same-sex parents on child’s birth certificate
BY ARTHUR S. LEONARD
In a win for maintaining the
integrity of the Supreme
Court’s 2015 Obergefell marriage
equality ruling, the high
court has refused to review an appellate
decision that Indiana must
extend to married lesbian couples
the same parentage presumption
customarily applied to married
different-sex couples: that a birth
mother’s spouse is presumed to be
a parent of their child.
The Supreme Court, on December
14, denied the state’s petition
for review of the Chicago-based
Seventh Circuit Court of Appeals’
decision in Henderson v. Box. The
denial was made without explanation
or any dissent.
As a consequence, Indiana must
treat a child born to a married lesbian
couple as born “in wedlock”
and must name both mothers on
Ruby and Ashlee Henderson, seen here with their children, are the named plaintiffs in an appellate
court victory the Supreme Court has declined to review.
the infant’s birth certifi cate.
The last time a challenge to the
breadth of the Obergefell decision
went before the Supreme Court —
with Pavan v. Smith in 2017 — it
overruled the Arkansas Supreme
Court on the same question. That
opinion was issued per curiam,
meaning it was an opinion for the
court not attributed to any individual
justice — though a close reading
RUBY AND ASHLEE HENDERSON
would identify the hand of Justice
Anthony M. Kennedy, Jr., author
of the Obergefell opinion. The 2015
victory found not only that samesex
couples have a constitutional
right under the 14th Amendment
to marry, but also that such marriages
must be treated by the states
as equal in every respect to the marriages
of different-sex couples. Kennedy
had specifi cally mentioned
listing on birth certifi cates as one of
the incidents of legal marriage previously
denied to same-sex couples.
In Pavan, however, Justice Neil
Gorsuch wrote a dissenting opinion,
joined by Justices Samuel
Alito and Clarence Thomas, arguing
that the Obergefell ruling did
not necessarily compel the majority’s
conclusion and that the court
should have scheduled a full hearing
on the question.
Since Pavan was decided, Kennedy
has retired and Justice Ruth
Bader Ginsburg has died, and
were replaced by Justices Brett Kavanaugh
and Amy Coney Barrett,
both religious conservatives.
When Indiana fi led its petition
for review in the spring, Ginsburg
was still on the court and the Pavan
v. Smith majority remained intact,
even with a reduced 5-4 ma-
➤ SCOTUS, continued on p.20
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