The nine Supreme Court justices will meet on December 11th to choose whether or not to allow a challenge on same-sex parental rights to make it to the Court.
The decision was set in motion by Indiana’s attorney general, Curtis Hill, who filed a petition urging the court to review a January ruling by the Seventh Circuit Court of Appeals. The appeals court previously ruled that the state’s refusal to list both same-sex parents on a child’s birth certificate was unconstitutional.
Box v. Henderson, which the case is known as, originated in 2014 when Ashlee and Ruby Henderson, a lesbian couple in Lafayettee, IN, was refused the ability to put both of their names on the birth certificate by the Tippecanoe County Health Department. A lawsuit was filed in 2015 by the pair and seven other couples challenging the decision under the Equal Protection Clause of the 14th Amendment, which requires government entities to give “equal protection of the laws” to all citizens of the United States.
In June 2016 and then again earlier this year, two different courts found in favor of the couples: the U.S. District Court for the Southern District of Indiana and the 7th Circuit, respectively.
The Supreme Court has already somewhat decided on this issue on two separate occasions. The first was in 2015 when Judge Anthony Kennedy cited the refusal of equal rights on “birth and death certificates” as a way to deny benefits to same-sex couples writing for the majority in the 2015 Obergefell ruling. The second occasion was in 2017, when the court ruled on Pavan v. Smith, noting that the “constellation of benefits that the states have linked to marriage” apply to the ability for same-sex parents to both be listed on their child’s birth certificate.
However, in the appeal to the Supreme Court, Hill argues that the Pavan v. Smith ruling does not apply to Indiana because the reason for refusing to list both parents does not fall under the reasons laid out by the Arkansas Department of Health. Arkansas’ policy (which is where Pavan was tried) was based on the false assumption that a birth mother’s husband is automatically named as the father. In Indiana, argues the attorney general, the policy is based not on marriage but biology.
While the reasoning behind Indiana’s appeal is clearly transphobic and harmful to the LGBTQ+ community, we can’t be so quick to dismiss the case. Just recently, Justice Samuel Alito attacked the Obergefell decision on two separate occasions. On one such occasion, he was supported by Justice Clarence Thomas, who also attacked the ruling that gave same-sex couples the right to marry. It’s clear that SCOTUS, which now leans overwhelmingly conservative, could look at this case as a way to further the partisan agenda.
It would only take four votes for the court to decide to hear Box v. Henderson. It’s safe to assume Justices Alito and Thomas will vote to hear the case, meaning only two more justices would have to vote favorably. The court’s newest justice Amy Coney Barrett is expected to vote to hear the case considering her ultraconservative track record. Brett Kavanaugh, who was often vocally supportive of Trump, can also be expected to vote favorably.