photo by Beverly & Pack

Once again, the Supreme Court has done something good for LGBTQ rights by doing nothing.

This week, the Court denied cert in Box v. Henderson, where homophobic Indiana Attorney General Curtis Hill was asking the Court to deny parenting rights to married same-sex couples.

With the 2015 SCOTUS opinion in Obergefell v. Hodges, states that revel in their hatred of people who are different from them were forced to accept marriage equality as the law of the land. But that didn't stop them from trying to find new ways to discriminate against LGBTQ people! Obergefell itself even listed birth and death certificates as part of the "constellation of benefits" all married couples are entitled to. But the homophobes in Indiana weren't about to let a silly little thing like the US Constitution get in their way.

When a married opposite-sex couple in Indiana uses a sperm donor to conceive, both spouses' names are listed on the child's birth certificate and both spouses are legally recognized as the child's parents. That's because of something called the marital presumption of parentage, which says that when a married person has a child, both spouses are legally presumed to be the parents of the child. It exists in some form in every state.

But Indiana, in its infinite wisdom, decided to use the presumption of parentage to discriminate against same-sex married couples. And because of this discrimination, married same-sex couples had to go through the invasive, expensive, and difficult process of a step-child adoption in order to both be recognized as their child's parents. This could also be disastrous for families with same-sex parents: If the biological mother died and the other mother hadn't gone through the expense of legal adoption, they could be left with no legal relationship to their own child. And it could leave married same-sex couples who move between different states at risk, if the presumption of parentage applied to same-sex in some states but not others.


Amazingly, Hill and Indiana argued that their bigoted law was totally fine because their rule was based on biology and it's biologically impossible for both women to be a child's mother. Never mind the fact that they have a system in place specifically for when only one parent is biologically related to the child.

Like Indiana University law prof Jennifer Drobac said,

"We need to take a more expansive view of parentage. And Indiana wants to stay in the Dark Ages in a way that is just outright heinous."

The Seventh Circuit agreed, with a panel of three conservative, Republican appointees unanimously ruling in favor of the plaintiffs.

Making Hill's crusade even more insane is the fact that the Supreme Court has already told states to stop it with this bullshit. And not just with Obergefell! In 2017, the Court ruled in Pavan v. Smith that Arkansas could not discriminate against same-sex married couples in this way. in a per curiam opinion, the justices held that the Arkansas law — which was identical in substance to the Indiana law at issue here — unconstitutionally discriminated against same-sex married couples.

Finding that the state law in question unlawfully discriminated against same-sex married couples, the Pavan Court reversed the lower court's decision, holding:

Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.

Same-sex couples can take this moment to breathe a quick sigh of relief. With Amy Bony Carrot replacing RBG and Kegs Kavanaugh replacing Anthony Kennedy, we can expect the Court to take a hard right turn on a lot of issues, including LGBTQ equality. But twice in the last two weeks, the Court has declined to take up cases that would have let them begin slowly chipping away at Obergefell.

The two hottest contenders for worst SCOTUS justice, Clarence Thomas and Samuel Alito, have shown, time and again, that they would love to take a sledgehammer to LGBTQ rights in our country. Thankfully, even since Handmaiden Barbie joined the religious far-Right on the bench, things haven't gotten too bad. (Yet.)

Between the cert denials this week and last week and the Bostock decision last summer, our current Supreme Court has been shockingly decent on LGBTQ rights. We certainly don't expect this trend to hold, but hell, we'll take wins wherever we can get them!


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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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