Henderson v. Box, No. 17-1141 (7th Cir. 2020)
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Under Ind. Code 31-14-7-1(1), a husband is presumed to be a child’s biological father; both spouses are listed as parents on the birth certificate and the child is deemed to be born in wedlock. There is no similar presumption with respect to a same-sex couple. The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who must be listed on the birth certificate. Because Indiana lists only two parents on a birth certificate, this prevents the state from treating as a parent the man who provided the sperm but requires that one spouse, who provided neither sperm nor egg, be identified as a parent. The court reasoned that Indiana lists a husband as a biological parent (when a child is born during marriage) even if he did not provide sperm, and must treat a wife as a parent even if she did not provide an egg. The Seventh Circuit affirmed, citing the Supreme Court’s 2017 holding, Pavan v. Smith, that same-sex and opposite-sex couples must have the same rights with respect to the identification of children’s parentage on birth certificates. Indiana’s statutory presumption violates the Constitution. The court rejected the state’s arguments that the statutory presumption is rebuttable.
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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 female-female marriages as having two female parents, who under the injunction must be listed on the birth certi cate. 209 F. Supp. 3d 1059, 1079–80 (S.D. Ind. 2016). Because Indiana lists only two parents on a birth certi cate, this e ectively prevents the state from treating as a parent the man who provided the sperm, while it requires the identi cation 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. Because 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 con rmed 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 identi cation of children’s parentage on birth certi cates. Pavan held unconstitutional a provision of Arkansas’s law that required a birth certi cate to list as parents the names of the child’s mother and her husband. Plainti s in this suit contend that Pavan is equally applicable 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 di erently when deciding how to identify who is a parent. And even in Arkansas mutual agreement among mother, husband, and “putative father” could lead to a di erent list of parents on the birth certi cate. If that did not save Arkansas’s law, the possibility of rebujing the presumption does not save Indiana’s. The state argues that Obergefell and Pavan do not control. In its view, birth certi cates in Indiana follow biology rather than marital status. The state insists that a wife in an opposite-sex marriage who conceives a child through arti cial in- No. 17-1141 3 semination must identify, as the father, not her husband but the sperm donor. The plainti s do not contend that a regimen using biology rather than marital status to identify parentage 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 §§ 319-2-15, 31-9-2-16, and 31-14-7-1. The rst 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 rebujed. 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 terminated 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 apparent compliance with the law, even though the marriage: (i) is void under IC 31-11-8-2, IC 31-11-8-3, IC 3111-8-4, 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 dissolution; 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 certi cate and the child is deemed to be born in wedlock. There’s no similar presumption with respect 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 something 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 without de ning 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 father,” 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 remaining di erence between female-male marriages and femalefemale marriages. In either situation the birth mother must name as the child’s father the man who provided the sperm, and every birth certi cate 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 certi cate, as the district judge required. Indiana issues an amended birth certi cate following adoption, while keeping the original as a record of biological parentage. The state then achieves two objectives: identifying biological parentage in the original birth certi cate, and identifying legal parentage (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 lling 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 §3114-7-1(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 certi cates 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 certi cate, the state maintains, that does not a ect parental rights and duties. A husband does not have any legal rights or duties unless 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 femalefemale 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 litigated. 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 whether the instructions on the birth worksheet should be treated as if they had been enacted. But we have decided not to certify, because a few decisions hold that the statutory presumption has real force, and none holds otherwise. For example, 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 certi cate. Another decision says that this means clear and convincing evidence, a long way from a bursting bubble. Richard v. Richard, 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 oppositesex. 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 plainti s 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 presumption to parents in same-sex marriages. Because Ind. Code §31-14-7-1(1) does that, its operation was properly enjoined. 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 §31-14-71(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 conjunction 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 being 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 justi cation for its entry, so the order in this suit must be revised. Some parts of the injunction, like some parts of the district court’s opinion, appear to turn a presumption of parentage into a rule of parentage, so that in a same-sex marriage the birth certi cate must list “Mother #1” and “Mother #2” even if, say, the birth mother conceives through sexual relations with a man and freely acknowledges the child’s biological parentage. As we have stated several times, the Fourteenth Amendment does not forbid a state from establishing a birth-certi cate regimen that uses biology rather than marital 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 con ict—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 §§ 31-9-215, 31-9-2-16, and 31-14-7-1 in a manner that prevents the presumption of parenthood to be granted to female, samesex 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 di erently from male-male couples, for whom adoption is the only way to produce “Father #1” and “Father #2” on a birth certi cate. Although the plainti s in this suit are adult women (and children of both sexes), and it would therefore be inappropriate for the court to decide the proper treatment of children born during male-male marriages, it would be helpful for the district court to provide 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 plainti s as legitimate 10 No. 17-1141 children, born in wedlock, and to identify both wives in each union as parents, is a rmed. The injunction and declaratory judgment are a rmed to the extent they provide that the presumption in Ind. Code §31-14-7-1(1) violates the Constitution. The remainder of the judgment is vacated, and the case is remanded for proceedings consistent with this opinion.
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