This week in Henderson v. Box, the U.S. Supreme Court reaffirmed that marriage equality is the law of the land and that states must provide the same rights to same-sex and different-sex spouses. After the Supreme Court ruled in Obergefell v. Hodges in 2015 that same-sex couples had a right to marry, Indiana refused to list same-sex married parents on their children’s birth certificates. Eight same-sex married couples in Indiana sued the state and won before the trial court, and then again in the Seventh Circuit Court of Appeals. The state of Indiana asked the Supreme Court to review the case in June 2020. The National Center for Lesbian Rights joined an excellent team of attorneys to represent the parents before the Supreme Court.
On December 14, 2020, the Supreme Court’s simple order, “Petition DENIED,” upheld the lower court’s order in Henderson v. Box that Indiana must treat same-sex spouses equally and apply the same rules to all spouses, regardless of gender or sexual orientation, when issuing birth certificates. Indiana was the last state still attempting to deny this right to same-sex spouses, so this order means that in every state when a parent gives birth, their spouse can also be listed on their child’s birth certificate regardless of gender.
This case should not have been necessary because Indiana should have followed the clear rulings already issued by the Supreme Court. The Supreme Court previously ruled twice in other NCLR cases that same-sex couples have not only the right to marry but to have access to the same legal rights and obligations given to different-sex spouses. In Pavan v. Smith, the Supreme Court ruled that states must list same-sex couples on their children’s birth certificates according to the same rules applied to different-sex couples. Even so, the state of Indiana spent thousands of taxpayer dollars and over five years fighting for the right to disregard the marriages of same-sex spouses in Indiana.
This important ruling affirms that same-sex spouses must be treated equally. However, this decision alone doesn’t protect all our families. It is still very important for all non-birth parents who conceive a child through assisted reproduction, as well as all non-genetic parents to get an adoption or other court order affirming they are a parent, even if they are married and even if they appear on their child’s birth certificate. A birth certificate allows families to be recognized in daily life, but if your parental rights are challenged in court, a birth certificate by itself does not protect those rights.
This week was an important victory in our journey toward full family equality, but many families, including families with unmarried parents, multiple parents, low-income parents, parents conceiving through surrogacy and many other families are not fully recognized by the law in every state. NCLR has been fighting for family recognition since 1977, and we won’t stop until every family is given the equal dignity and respect they deserve.