➤ SCOTUS, from p.16
jority. The same-sex couples who
had fi led the lawsuit, represented
by the National Center for Lesbian
Rights, did not even fi le an opposition,
assuming the court would
dismiss the petition.
With Ginsburg’s death, however,
the Pavan six-member majority
had now been reduced to a fourmember
minority. The Supreme
Court recently requested that the
plaintiff couples fi le a reply to Indiana’s
petition, and the possibility
appeared that it might take up the
issue anew.
At the heart of Indiana’s case was
the contention that the presumption
that a husband is the father
is reality-based in biology — even
if the husband might not in fact be
the biological parent — and there
is no such basis for a reality-based
presumption for the wife of a woman
who gives birth. (The Seventh
Circuit, however, had observed
that one of the lesbian couples in
the case comprised two biological
mothers, since the second mother
donated the egg that was gestated
by the birth mother.)
In fact, Indiana — in common
with some other states — does not
treat the paternal presumption as
conclusive. According to both the
trial court and the Seventh Circuit,
the state relies on self-reporting
by the mother in determining
a man’s name to record on a birth
certifi cate, and she is asked for the
father, not specifi cally the biological
father. If her husband did not
father her child, she could well record
him as the father anyway.
Ultimately, the Seventh Circuit
cut through these details to fi nd,
“The district court’s order requiring
Indiana to recognize the children
of these plaintiffs as legitimate
children, born in wedlock,
and to identify both wives in each
union as parents, is affi rmed.”
By refusing to review this ruling,
without any explanation or dissent
by the conservative justices,
the Supreme Court seems to have
put the seal on this issue. This is
particularly reassuring in light of
gratuitous comments by Justice
Alito, joined by Justice Thomas,
in a statement he issued when the
court, in October, refused to review
a petition by Kim Davis, a former
Kentucky county clerk, challenging
the fi nes imposed on her for refusing
to issue marriage licenses to
same-sex couples after the Obergefell
decision.
Alito’s statement — and remarks
he later delivered to a conservative
public forum — sharply criticized
the Obergefell decision and suggested
the court needed to “fi x” the
problems that ruling created for
those with religious objections to
same-sex marriage.
Alito’s statement renewed attention
on the Henderson case and
the possibility that the court might
take up the case and chip away
at same-sex marriage rights. The
decision not to take this case may
represent a reluctance more than
fi ve years down the road to upset
the understanding of Obergefell’s
full scope — at the very least on the
question of parental recognition.
➤ GABBARD, from p.11
the father of three girls involved in
athletics, I want them to be able to
compete on a level playing fi eld. I
am proud to lead this bill that will
safeguard the integrity of women’s
sports and ensure female athletes
can compete fairly.”
Unsurprisingly, Gabbard and
Mullin have poor records on LGBTQ
issues and both have a history
of opposing marriage equality.
Gabbard’s father, Mike Gabbard —
a longtime state senator in Hawaii
who is still in offi ce — led multiple
anti-LGBTQ groups including Stop
Promoting Homosexuality Hawaii
and the Alliance for Traditional
Marriage and Values. When his
daughter was running for the Hawaii
State Legislature in 2002, she
revealed her own ties to her father’s
work against the community.
“Working with my father, Mike
Gabbard, and others to pass a constitutional
amendment to protect
traditional marriage, I learned that
real leaders are willing to make
personal sacrifi ces for the common
good. I will bring that attitude of
public service to the Legislature,”
Gabbard said at the time, according
to the Honolulu Star-Bulletin.
Gabbard subsequently sought to
clean up that mess — likely because
she had national ambitions — and
she signed onto the Equality Act,
which was passed by the House of
Representatives last year.
But she isn’t fooling anyone anymore.
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