Tag Archives: Box v. Henderson

Vindictive Exits

Many thanks to all of you who posted kind comments on yesterday’s post. I really appreciated them!

And now, back to our “originally scheduled programming”!

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Ever since the election, the media has been filled with stories about the ungraceful and vindictive exit of Trump Administration appointees. Confirming that administration’s utter disinterest in the common good, officials have been taking steps to make it as difficult as possible for the incoming Biden administration to function properly.

Of course, Republican moral nastiness isn’t limited to outgoing federal officials; here in Indiana, departing Attorney General/lecherous groper Curtis Hill is cementing his “Christian conservative” credentials by asking the U.S. Supreme Court to allow Indiana to strip parental rights from same-sex couples.

As Slate has reported,

On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip same-sex couples of their equal parenting rights. He did so at the request of the court, which is considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.

As the article notes, the case– Box v. Henderson–poses a question the Supreme Court has already answered twice. The plaintiffs in the lawsuit are eight married lesbian couples in Indiana who used a sperm donor to conceive. In Indiana, when a married opposite-sex couple conceives using a sperm donor, the state recognizes the birth mother’s husband as the child’s parent. When a lesbian couple does the same thing, however, Indiana refuses to list the birth mother’s wife as the child’s parent.

In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.

Other states have read the Court’s decision in Obergefell v. Hodges to require such recognition. Obergefell held that the Constitution requires extending marriage to same-sex couples  “on the same terms and conditions as opposite-sex couples.”

When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.

When Indiana’s case went to the 7th Circuit, a unanimous panel confirmed that precedent, and held that the state must treat same-sex couples the same way it does opposite-sex couples–but there was an unexplained delay in issuing that decision. According to the Slate article, the usual time lag between argument and decision is around three months; in this case it was 32 months. If the panel had issued its decision within a typical time frame, Indiana would in all likelihood given up, since Justice Kennedy–with an admirable record on same-sex issues– hadn’t retired, and Ruth Bader Ginsburg was alive.

But the Court has been changed, and not for the better. Kavanaugh has not previously shown support for LGBTQ rights, and Ginsburg has been replaced by Amy Coney Barrett, a frightening religious zealot. There are rumors that the new court “has its knives out for Obergefell.”

Which brings us to Curtis Hill, who is so slimy and self-aggrandizing that even Indiana’s retrograde GOP refused to re-nominate him. Hill has tried to distinguish Box v. Henderson from the applicable precedents by misrepresenting state law and claiming that the case is about a state’s right to acknowledge “biological distinctions between males and females.”

According to Hill, Indiana law only presumes that a birth mother’s husband is the father of her child. A birth mother’s wife, by contrast, “is never the biological father,” so she does not deserve the presumption of parentage.

If the Supreme Court sides with Indiana, and our departing creepy Attorney General gets the satisfaction of one last “owning the libs” moment, states will be able to resume discriminating against same-sex parents and, in effect, marking same-sex marriages as second-class.

I don’t know what makes these people into the petty and vindictive creatures that they so clearly are. I probably will never understand what sort of satisfaction they get by making life difficult and unfair for people they don’t even know.

do know that we are well rid of them.