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Supreme Court could wipe out rights for same-sex families

Same-sex parents’ rights could be under attack if the court takes up Box v. Henderson.

By Casey Quinlan - November 25, 2020
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Same-sex couple and son in Rhode Island

The Supreme Court could remove certain rights from same-sex couples if it hears a case involving lesbian married couples in Indiana, where one parent has not been allowed to appear on their child’s birth certificate.

As Mark Joseph Stern, Slate’s courts and law reporter, has explained, a case like this could provide the court “a shot at eroding” Obergefell v. Hodges, the landmark 2015 Supreme Court ruling that same-sex couples have the right to marry. According to Stern’s analysis, there is good reason to believe the court could take up the case soon.

If the very conservative court decided to hear the case and ruled in favor of Indiana barring same-sex couples from being listed as parents on birth certificates, the decision could be devastating for LGBTQ equality.

On Monday, Curtis Hill, the Indiana attorney general, defended Indiana’s current criteria for listing parents on birth certificates, which does not allow the inclusion of two same-sex parents.

The couple named in Box v. Henderson, Ashlee and Ruby Henderson, were married in 2014 and had a child together. The forms provided to the couple to apply for a birth certificate for their son only had spaces for one mother and one father, so the couple amended the form to list another mother, according to the Lafayette Journal & Courier. But their county health department issued the couple a birth certificate that only listed Ruby Henderson and said it was simply following state guidelines.

The couple’s attorneys said that “bastardizing children born to women in same-sex marriages” essentially “publicly stigmatizes” married same-sex couples and causes problems in obtaining health insurance coverage, enrolling in school, and taking their child to the doctor.

The plaintiffs in Box are eight lesbian married couples who had children through a sperm donor.

A U.S. appeals court ruled in favor of the parents in January, and in June, Hill asked the Supreme Court to review it. The court recently requested the facts and history of the case so it can consider taking it up, but there is still a chance it may decide not to do so.

Justice Amy Coney Barrett, who was confirmed to the court only a week before the 2020 presidential election, has defended Chief Justice John Roberts’ dissent in Obergefell, served as trustee on the board of a private Christian school that discriminates against LGBTQ people, and called sexual orientation “sexual preference” during one of her confirmation hearings.

Jim Obergefell and Richard Hodges, the plaintiff and defendant in the Obergefell case, joined forces to oppose Barrett’s nomination. Obergefell said he was worried that the “rights and responsibilities” stemming from marriage would be harmed with Barrett on the court, USA Today reported.

A decision by the Supreme Court in Box, should it take up the case, could have consequences for other issues concerning the protection of the rights of LGBTQ Americans that it might also take up in the near future, including cases that could expand the meaning of religious liberty to weaken or remove protections against discrimination or decide issues of health care and justice that disproportionately affect the LGBTQ community.

The Supreme Court recently heard arguments in Fulton v. Philadelphia, centering on equal access to social services, including foster care, homeless shelters, and food banks. The court has yet to rule in the case.

Published with permission of The American Independent Foundation.


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