Case: 17-1141 Document: 39 Filed: 05/08/2017 Pages: 37

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 17-1141

ASHLEE and RUBY HENDERSON, a married couple and L.W.C.H., et al.,

Plaintiffs/Appellees,

v.

DR. JEROME M. ADAMS, in his official capacity as Indiana State Health

Commissioner,

Defendant/Appellant.

On Appeal from the United States District Court for the

Southern District of Indiana, No. 1:15-cv-220-TWP-MJD,
The Honorable Tanya Walton Pratt, Judge

REPLY BRIEF OF APPELLANT DR. JEROME ADAMS

CURTIS T. HILL, Jr.

Attorney General of Indiana

THOMAS M. FISHER
Solicitor General
Office of the Attorney General
IGC South, Fifth Floor LARA LANGENECKERT
302 W. Washington Street CALE ADDISON BRADFORD
Indianapolis, IN 46204 Deputy Attorneys General
(317) 232-6255
[email protected] Counsel for Defendant/Appellant
Case: 17-1141 Document: 39 Filed: 05/08/2017 Pages: 37

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii

SUMMARY OF THE ARGUMENT .............................................................................. 1

ARGUMENT .................................................................................................................. 2

I. Indianas Parental Rights Statutes Do Not Discriminate ..................................... 2

A. Plaintiffs have provided no evidence that they are treated differently from
similarly situated opposite-sex married couples with respect to birth
certificates......................................................................................................... 2

B. The Paternity Presumption Statute does not confer parental rights and is
not discriminatory ............................................................................................ 4

C. The Wedlock Statutes are not discriminatory and not properly before the
court anyway .................................................................................................... 8

II. Indiana Does Not Confer Parental Rights Through Marriage, and Indeed the
Constitution Requires Respect for Biological Parents Rights in the First
Instance ................................................................................................................. 11

A. Indiana courts use equity to ensure children receive support in dissolution

cases, but that does not yield plenary parental rights based on marriage
rather than biology or adoption ..................................................................... 12

B. Baskin and Obergefell do not require states to confer parenthood with

marriage, and other states cases are easily distinguishable ....................... 15

C. Meanwhile, the Constitution actually does protect the rights of biological

fathers, not to mention the rights of children to have relationships with
both biological parents ................................................................................... 19

III. Plaintiffs Do Not Dispute that Their Theory Creates Inequalities, and Do Not
Explain Why Biology Matters Only Sometimes .................................................. 21

A. Plaintiffs system discriminates ................................................................... 21

B. Plaintiffs do not explain how parental rights not predicated on biological

connection to the child can be affected by evidence of anothers biological
connection to the child .................................................................................. 23

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C. Precisely because there are so many ways to form a family, the State must
be able to ensure parental rights are bestowed fairly in light of the
fundamental rights of all concerned............................................................. 25

CONCLUSION............................................................................................................. 27

CERTIFICATE OF WORD COUNT ........................................................................... 28

CERTIFICATE OF SERVICE ..................................................................................... 29

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TABLE OF AUTHORITIES
CASES

Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014) .................................................................................. 15

Brenner v. Scott,
Nos. 4:14cv107-RH/CAS, 4:14cv138-RH/CAS, 2016 WL 3561754
(N.D. Fla. Mar. 30, 2016) ....................................................................................... 16

Campaign for S. Equality v. Miss. Dept of Human Servs.,

175 F. Supp.3d 691 (S.D. Miss. 2016) .................................................................... 17

Carson v. Heigel,
No. CV 3:16-0045-MGL, 2017 WL 624803 (D.S.C. Feb. 15, 2017) ....................... 17

De Leon v. Abbott,
791 F.3d 619 (5th Cir. 2015) .................................................................................. 18

De Leon v. Abbott,
SA-13-CA-00982-OLG, ECF No. 113 (W.D. Tex. Aug. 11, 2015) .......................... 18

Engelking v. Engelking,
982 N.E.2d 326 (Ind. Ct. App. 2013) ...................................................................... 12

Fairrow v. Fairrow,
559 N.E.2d 597 (Ind. 1990) .................................................................................... 13

Gardenour v. Bondelie,
60 N.E.3d 1109 (Ind. Ct. App. 2016), trans. denied .............................................. 14

Gartner v. Iowa Dept of Pub. Health,

830 N.W.2d 335 (Iowa 2013) .................................................................................. 17

Hinshaw v. Bd. of Commrs of Jay Cty.,

611 N.E.2d 637 (Ind. 1993) .................................................................................... 10

K.S. v. R.S.,
669 N.E.2d 399 (Ind. 1996) ................................................................................ 5, 10

Estate of Lamey v. Lamey,

689 N.E.2d 1265 (Ind. Ct. App. 1997) .................................................................... 13

Lehr v. Robertson,
463 U.S. 248 (1983) ................................................................................................ 20

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CASES [CONTD]

Levin v. Levin,
645 N.E.2d 601 (Ind. 1994) .................................................................................... 12

Marie v. Mosier,
196 F. Supp. 3d 1202 (D. Kan. July 22, 2016) ....................................................... 16

McLaughlin v. Jones,
382 P.3d 118 (Ariz. Ct. App. 2016), review granted .............................................. 18

Myers v. Myers,
13 N.E.3d 478 (Ind. Ct. App. 2014) ........................................................................ 13

N.E. v. Hedges,
391 F.3d 832 (6th Cir. 2004) .................................................................................. 20

Obergefell v. Hodges,
135 S. Ct. 2584. 2601 (2015) ...........................................................................passim

Ohning v. Driskill,
739 N.E.2d 161 (Ind. Ct. App. 2000) ...................................................................... 12

In re Paternity of E.M.L.G.,
863 N.E.2d 867 (Ind. Ct. App. 2007) ...............................................................passim

In re Paternity of H.H.,
879 N.E.2d 1175 (Ind. Ct. App. 2008) .................................................................... 13

In re Paternity of K.M.,
651 N.E.2d 271 (Ind. Ct. App. 1995) ...................................................................... 13

In re Paternity of M.F.,
938 N.E.2d 1256 (Ind. Ct. App. 2010) .................................................................... 24

Pinter v. Pinter,
641 N.E.2d 101 (Ind. Ct. App. 1994) ...................................................................... 13

Regalado v. Estate of Regalado,

933 N.E.2d 512 (Ind. Ct. App. 2010) ...................................................................... 11

Rivera v. Minnich,
483 U.S. 574 (1987) ................................................................................................ 21

Robicheaux v. Caldwell,
No. 13-cv-5090, 2015 WL 4090353 (E.D. La. July 2, 2015) .................................. 17

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CASES [CONTD]

Roe v. Patton,
No. 2:15-cv-00253-DB, 2015 WL 4476734 (D. Utah July 22, 2015) ..................... 17

Santosky v. Kramer,
455 U.S. 745 (1982) ................................................................................................ 19

Sheetz v. Sheetz,
63 N.E.3d 1077 (Ind. Ct. App. 2016) ...................................................................... 13

Smith v. Pavan,
505 S.W.3d 169 (Ark. 2016), cert. pending ...................................................... 18, 19

Stanley v. Illinois,
405 U.S. 645 (1972) .......................................................................................... 19, 20

Steele v. Campbell,
82 N.E.2d 274 (Ind. Ct. App. 1948) .......................................................................... 4

Straub v. B.M.T. by Todd,

645 N.E.2d 597 (Ind. 1994) .................................................................................... 24

Paternity of H.J.B. ex rel. Sutton v. Boes,

829 N.E.2d 157 (Ind. Ct. App. 2005) ...................................................................... 13

Teesdale v. City of Chicago,

690 F.3d 829 (7th Cir. 2012) .................................................................................... 9

Torres v. Seemeyer,
207 F. Supp. 3d 905 (W.D. Wis. 2016) ................................................................... 17

Tuan Anh Nguyen v. I.N.S.,

533 U.S. 53 (2001) .................................................................................................... 7

U.S. Bancorp Mortg. Co. v. Bonner Mall Pship,

513 U.S. 18 (1994) .................................................................................................. 15

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .................................................................................................. 15

United States v. Salerno,

481 U.S. 739 (1987) ................................................................................................ 10

United States v. Virginia,

518 U.S. 515 (1996) .................................................................................................. 7

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STATUTES

Ariz. Rev. Stat. 25-814(A) ......................................................................................... 18

Fla. Stat. 382.013 ...................................................................................................... 16

Ind. Code 16-37-2-2.1 ................................................................................................ 11

Ind. Code 31-9-2-15 ................................................................................................... 11

Ind. Code 31-14-4-1 ................................................................................................... 24

Ind. Code 31-14-4-2, -7-1 ......................................................................................... 11

Ind. Code 31-14-6-1 ..................................................................................................... 5

Ind. Code 31-14-7-1 ..................................................................................................... 6

Ind. Code art. 31-19 ..................................................................................................... 11

Ind. Code 31-19-2-2 ................................................................................................... 26

Ind. Code ch. 31-19-3 ..................................................................................................... 7

Ind. Code 31-19-9-1 ..................................................................................................... 5

Ind. Code 31-34-4-2 ..................................................................................................... 6

Ind. Code 31-34-4-2 ..................................................................................................... 6

Ind. Code 34-27-3-1 ................................................................................................... 14

Kan. Stat. Ann. 23-2302 ........................................................................................... 16

Mich. Comp. Laws 333.2824(6) ................................................................................ 15

Ohio Rev. Code Ann. 3111.95(A) .............................................................................. 16

Social Security Act, 42 U.S.C. 654 ........................................................................... 21

Tenn. Code Ann. 68-3-30 .......................................................................................... 16

OTHER AUTHORITIES

Jack K. Levin, 5 Ind. Law Encyc. Children Born Out of Wedlock 1 ....................... 10

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SUMMARY OF THE ARGUMENT

Like the District Court, Plaintiffs continue to attack a parental rights system

that does not exist. Indiana confers parental rights based on a biological parent-child

relationship or adoption, not marriage. The Paternity Presumption Statute creates

a biologically plausible presumption of a fact that can be disproven, not an

entitlement of parental rights. Similarly, the Wedlock Statutes draw a distinction

based upon biological parent-child relationships, not marriage. In any event, the

Wedlock Statutes apply narrowly and do not injure Plaintiffs, who have no standing

to challenge them.

Plaintiffs reject the notion that parental rights in Indiana are biologically

driven and assert the Constitution requires States to confer parental rights based

upon emotional connections. But equitable decisions estopping established providers

from denying responsibility for children do not confer entitlement to parental rights

ab initio. Nor does the Constitution require States to privilege adult preferences over

biological connections when conferring parental rights; rather, biological parents

have a Constitutional right to develop relationships with their children, and vice-

versa. Obergefell and Baskin say nothing to the contrary.

Finally, Plaintiffs offer no solutions for the shortcomings of their parental

rights theory. They fail to explain how a biological father could use factual evidence

to rebut a female spouses presumption of legal parenthood, when everyone already

knows she is not the father. They are silent as to why it is fair to exclude from this

new system of automatic non-biological parental rights same-sex male couples who

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procreate with the help of a surrogate. And they ignore the childs right to a

relationship with and support from both biological parents.

Prior to this case, Indianas parental rights statutes treated all persons equally

and protected the constitutional rights of biological parents while enabling adults to

become parents without a biological connection to the child. The same cannot be said

for the District Courts judgment and injunction, which should be reversed.

ARGUMENT

I. Indianas Parental Rights Statutes Do Not Discriminate

A. Plaintiffs have provided no evidence that they are treated differently

from similarly situated opposite-sex married couples with respect to
birth certificates

Plaintiffs case rests on the premise that artificially inseminated, married,

heterosexual birth mothers falsely ascribe paternity to their husbands, who thereby

acquire, without adoption, parental rights and two-parent birth certificates. But

there is no evidence that heterosexual birth mothers do that, and regardless, such

fraud would not create parental rights.

1. First, the State needs to correct the record in one respect. Based on

evidence submitted by both the Plaintiff and the State, the District Court said:

When children are born in Indiana, the procedure for creating and processing birth

certificates for these newborns begins with the hospital staff working with the birth

mother to complete the State of Indianas Certificate of Live Birth Worksheet.

Short App. 24. That Worksheet is indeed the only ISDH document designed to gather

information from the mother. App. 2.

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During preparation of this reply brief, however, the Office of Attorney General

has learned that some hospitals use different forms that omit many Worksheet

questions or phrase them differently. So, for example, rather than prompt a mother

to ask are you married to the father of your child, as the State form does, App. 2,

some hospitals may simply ask the birth mother for information regarding father.

Regardless, Indianas birth registration system depends upon hospital staff

collecting information from the birth motherincluding some representation from

the birth mother as to the identity of the childs father if she knows itand then

entering the information into the State database. App. 2. The premise of Plaintiffs

argument, and much of the District Courts decision, is that during that information-

gathering process, mothers will routinely lie about the identity of the father.

Appellees Br. 1617.

2. Plaintiffs, however, have cited no evidence that this supposedly rampant

fraud on the Indiana birth registration system actually happens. Undeterred, the

District Court declared that [c]ommon sense says that an artificially-inseminated

woman married to a man who has joined in the decision for this method of conception,

and who intends to treat the child as his own, would indicate that she is married to

the father of her child. Why would she indicate otherwise? Short App. 3738.

A mother would have many reasons to indicate otherwise, among them: a

moral duty and desire to be truthful; a legal duty not to commit fraud; an intention

that her husband will adopt the child and thereby attain actual parental rights rather

than a false veneer of them. Surely Plaintiffs cynical and unproven speculation that

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heterosexual birth mothers routinely lie about paternity cannot be the basis for

imputing discrimination to a state law that is facially non-discriminatory.

3. Next, even if a birth mother does fraudulently identify her husband as

the father, and thereby procures a fraudulent birth certificate showing the same, that

does not make the husband the childs legal parent. Being listed on a birth certificate

does not confer parental rights; rather, the birth certificate, properly used, merely

records parental rights that already exist. See Steele v. Campbell, 82 N.E.2d 274, 275

(Ind. Ct. App. 1948) (finding birth certificate not admissible to prove paternity).

Plaintiffs enumerate ways birth certificates are useful in caring for a child.

Such utility says nothing about the creation of parental rightsor the right to be

listed on a birth certificate. Parents who use a fraudulent birth certificate to procure

access to day care, sign up for Social Security, or execute any number of other

transactions for their children are not acting based on genuine parental rights

recognized by law. Nothing may come of such false moves, but not because Indiana

law has conferred parental rights. It is, rather, because the law does not force the

issue of paternity absent legitimate court challenge, in which case the birth certificate

will not protect a false claim of paternity.

B. The Paternity Presumption Statute does not confer parental rights

and is not discriminatory

1. The Paternity Presumption Statute is not discriminatory because it does

not create parental rights. It is merely a means of identifying who holds rights that

already exist because of a biological paternal relationship. In that respect, it is highly

accurateover 99% of the time according to a report in evidence. See App. 20. If the

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birth mother, a sperm donor, or any other party files a paternity action, the court

must order a DNA test on the motion of any party. Ind. Code 31-14-6-1. If the

results show that a man other than the husband is the childs biological father, the

court will issue an order establishing paternity in the actual biological father, thereby

disestablishing it in the husband. See, e.g., K.S. v. R.S., 669 N.E.2d 399, 401 (Ind.

1996) (upholding a trial court order establishing paternity in a man over objections

from the mother and her husband).

Such circumstances could cause pain and upheaval for the entire family,

especially if they occur in the context of marital dissolution. That is why Indiana law

vests parental rights through more permanent and substantial bonds than marriage:

immutable biological relationships and court-ordered adoptions. If a biological

mothers spousewhether man or womanis not the biological father of her child

but nonetheless wishes to be a legal parent, the spouse should use the mechanism

the Indiana General Assembly has provided: adoption.

Plaintiffs believe the Paternity Presumption Statute renders it unnecessary

for a presumed father to adopt his non-biological child, but Indiana law expressly

contemplates this action. Indiana Code section 31-19-9-1 states that written consent

to adoption is required from [e]ach living parent of a child born in wedlock, including

a man who is presumed to be the childs biological father under [the Paternity

Presumption Statute] if the man is the biological or adoptive parent of the child.

(emphasis added). If the presumed biological father was automatically the legal

father, the italicized text would be redundant. But the presumed biological father is

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not automatically the legal father; that is why the presumed biological fathers

consent is required only if he is the actual biological or adoptive father.

Plaintiffs suggest that [i]f the birth mother died before completing the

Worksheet, the State would hardly refuse to name her husband as the father of the

child because it would then be creating a parentless child. Plaintiffs Response to

Defendants Cross-Motion for Summary Judgment and Reply in Support of Their

Motion for Summary Judgment, ECF No. 100 at 7. In that circumstance, the mothers

husband, as the presumed the biological father, is indeed charged with immediate

parental responsibility for that child. Ind. Code 31-14-7-1. If he is not the childs

actual biological father he is estopped from disclaiming paternal responsibility, see

In re Paternity of E.M.L.G., 863 N.E.2d 867, 869 (Ind. Ct. App. 2007) ([T]he Indiana

statutes governing paternity actions, found in Article 14 of Title 31 of the Indiana

Code provide a means to establish paternity, not to disestablish it), but the actual

biological father may ultimately disestablish his paternity by legal process. His only

secure means of securing full legal parental rights is to adopt.

When there is no husband (whether because the deceased birth mother was

unmarried or because she was married to a woman), there is no one in whom to

presume a biological relationshipwhich again is the touchstone of parental rights

and responsibilities in the first instance. The child would be a ward of the State, but

with a same-sex female couple, the wife would obviously be available as custodian of

the childand may have kinship priority. Ind. Code 31-34-4-2. Such custody would

first arise on an emergency basis and then more permanently via legal process (such

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as CHINS placement, then adoption). Indiana law even permits couples to start

adoption proceedings during pregnancy, see Ind. Code ch. 31-19-3.

Regardless, there is no discrimination because biologyand the likely

biological connection marriage signifiesis what accounts for any differential

outcomes. And even if one unfairly infers discriminatory treatment, the legal process

required of the wife of a birth mother is justifiable by reference to the constitutional

rights of the childs biological father (and the corresponding rights of children to a

relationship with a biological father), who must be given a chance to step forward and

claim the child. That is a compelling interest, vindicated by narrowly tailored means.

2. The Paternity Presumption Statute also creates no impermissible sex

discrimination because there is no implicit elevation of one sex over the other (indeed,

the presumption of biological fatherhood operates as much to impose legal burdens

as it does to afford benefits) and no effort to codify traditional gender roles. United

States v. Virginia, 518 U.S. 515, 53233 (1996) (noting that distinctions predicated

on enduring [p]hysical differences between men and women are constitutional so

long as they do not denigrat[e] either sex or rely on overbroad generalizations about

the different talents, capacities, or preferences of males and females).

There is only an attempt to account for legitimate biological differences

between the sexesonly men can be biological fathers, so only men should ever be

presumed to be suchand such laws survive even heightened scrutiny. See, e.g.,

Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 73 (2001) (upholding stricter citizenship

requirements for children of citizen fathers than for citizen mothers).

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And, just as the biological differences between men and women demonstrate

there is no cognizable sex discrimination, those differences also provide a compelling

justification for the narrowly tailored statute, which is to presume constitutionally

protected fatherhood, subject to rebuttal in the few cases where the presumption is

inaccurate. App. 20. The obvious connection between husbands and biological

fatherhood makes the statute neither overinclusive nor underinclusive.

C. The Wedlock Statutes are not discriminatory and not properly before
the court anyway

Plaintiffs claim that the State grants legitimacy, i.e., born in wedlock status,

to the children of opposite-sex couples conceived via artificial insemination with

third-party donor sperm. Appellees Br. 19. That is inaccurate, and Plaintiffs still

have not established standing to challenge the Wedlock Statutes in any event.

1. Plaintiffs do not establish that they have standing to challenge the

Wedlock Statutes. First, they claim the Wedlock Statutes cause the exclusion of the

non-birth mothers surname from her childs name. Appellees Br. 49. But none

allege a need for an injunction to procure a preferred surname for their children.

Next, Plaintiffs claim that the non-birth mothers parental rights are less

secure than those of a similarly situated husband whose child will be deemed born in

wedlock because his notice and consent are required in the event that someone

seeks to adopt his child. Appellees Br. 49. Even if that reading of the Statute is

accuratebut see Part I.C.2, infraPlaintiffs have not alleged any plausible threat

that anyone outside the marriage seeks to adopt their Children.

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Plaintiffs also complain that a child born out of wedlock cannot inherit from

the non-birth mothers estate under Indianas intestate succession statute.

Appellees Br. 49. Plaintiffs, however, have never alleged that any Spouses are

currently intestate or intend to die intestate. Any operational impact of the law to

these plaintiffs is therefore beyond speculative. Cf. Teesdale v. City of Chicago, 690

F.3d 829, 83637 (7th Cir. 2012) (standing to bring a pre-enforcement challenge

arises only where plaintiffs show they are under threat of an actual and imminent

injury in fact . . . . (internal quotations omitted)).

Plaintiffs argue that they have standing to challenge the Wedlock Statutes

because they incorporate and are dependent on the Presumption Statute.

Appellees Br. 50. But that only means that they object to not being presumed parents

for purposes of a statute that would not apply to them even if they were. That is a

classic generalized grievance, not Article III injury.

Finally, aside from the Surname Statute, Plaintiffs make no demonstration

how, even if they are sufficiently injured by any hypothetical applications of the

Wedlock Statutes, the Commissioner is a proper defendant under Article III. The

Commissioner has no authority over adoptions or estates, so there is no means for

him to provide relief. The District Courts declaration that the Wedlock Statutes are

invalid is simply an abstraction with no real-world consequences for any of the

parties.

Indeed, because the Wedlock Statutes have no operational impact here, it is

impossible to understand whether they are susceptible of constitutional application.

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The State can offer no justification for treatment that does not occur. And without a

meaningful analysis of potential constitutional applications, the Wedlock Statutes

cannot be facially invalidated. See United States v. Salerno, 481 U.S. 739, 745 (1987).

Plaintiffs challenge to the Wedlock Statutes is, accordingly, an Article III non-

starter.

2. The Wedlock Statutes do not discriminate on the basis of gender or

sexual orientation; what matters is whether the mothers spouse is the biological

father of her child. Jack K. Levin, 5 Ind. Law Encyc. Children Born Out of Wedlock

1 ([A] child born into an intact marriage but fathered by a man other than the

husband is a child born out of wedlock.). As the Indiana Supreme Court said in K.S.

v. R.S., 669 N.E.2d 399, 402 (Ind. 1996), the fact that the child was born while mother

was married does not establish that the child was born during wedlock. Rather,

whether a child is born in wedlock depends on the status of the biological parents of

the child in relation to each other. Id.

Plaintiffs reject the significance of K.S. because it was decided the year before

the Wedlock Statutes were enacted. But courts presume that the legislature is

aware of the common law and intends to make no change therein beyond its

declaration either by express terms or unmistakable implication. Hinshaw v. Bd. of

Commrs of Jay Cty., 611 N.E.2d 637, 639 (Ind. 1993). Plaintiffs cite nothing to

suggest a clear derogation of the common law, and indeed the relevant statutory text

suggests an intention to codify it, defining as it does child born in wedlock to be a

child born to: (1) a woman; and (2) a man who is presumed to be the childs father . .

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. unless the presumption is rebutted. Ind. Code 31-9-2-15 (emphasis added). In

other words, because the actual biological relationship between the presumed father

and the child expressly remains relevant, the Wedlock Statutes are consistent with

the common law rule.

Subsequent Indiana case law seems to confirm as much. In Regalado v. Estate

of Regalado, 933 N.E.2d 512, 522 (Ind. Ct. App. 2010), the court, citing K.S., observed

that [u]nder Indiana common law, the term wedlock refers to the status of the

biological parents of the child in relation to each other and that the legislature has

not expressly indicated in [the intestate succession statute] any intent contrary to the

common law. And while the Regalado court was addressing intestate succession and

did not cite or expressly construe the Wedlock Statutes, Plaintiffs claim that born

out of wedlock means the same thing in both. Appellees Br. 49.

II. Indiana Does Not Confer Parental Rights Through Marriage, and Indeed
the Constitution Requires Respect for Biological Parents Rights in the
First Instance

Indiana confers parental rights solely through biological and adoptive

relationships, not through marital relationships. See Ind. Code 16-37-2-2.1; Ind.

Code 31-14-4-2, -7-1; Ind. Code art. 31-19. Plaintiffs believe the Constitution

requires States to accord parental rights based on marital rather than biological

connections, asserting states must provide birth certificates to all married couples

and this Court has also recognized the unconstitutionality of biology as a qualifier

regarding the care and protection of families and children. Appellees Br. 13, 37.

But to confer parental rights through marriage rather than biology inevitably

repudiates the rights of some biological parents.

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A. Indiana courts use equity to ensure children receive support in

dissolution cases, but that does not yield plenary parental rights
based on marriage rather than biology or adoption

Plaintiffs and amici cite Indiana cases they believe show Indiana has

historically looked beyond genetics to establish parenthood. Appellees Br. 2934.

See also Family Equality Council & Colage (FECC) Br. 9; 49 Professors of Family

Law (FLP) Br. 5; National Center for Lesbian Rights (NCLR), et al. Br. 16. These

cases, however, stand at most for the proposition that the responsibilities of

parenthood, once voluntarily assumed, cannot easily be cast aside. They do not stand

for the proposition that the rights of parenthood are an entitlement appurtenant to

marriage.

In Levin v. Levin, the court held that a husband who knowingly and voluntarily

consented to the artificial insemination of his wife with donor semen, and then held

the child out as his own for fifteen years, was equitably estopped from denying his

obligation to support the child. 645 N.E.2d 601, 60405 (Ind. 1994). The court also

stated that [a] child conceived through artificial insemination, with the consent of

both parties, is correctly classified as a child of the marriage, id. at 605, but that is

a construct peculiar to the dissolution context that enables equitable allocation of

parental responsibilities. See also Engelking v. Engelking, 982 N.E.2d 326, 328 (Ind.

Ct. App. 2013) (applying the same equitable principle).

Other cases Plaintiffs cite also rest on equitable principles, not entitlement in

the first instance. Ohning v. Driskill, 739 N.E.2d 161, 164 (Ind. Ct. App. 2000)

(holding mother estopped from challenging former husbands paternity because she

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accepted child support payments from him); In re Paternity of H.H., 879 N.E.2d 1175,

1178 (Ind. Ct. App. 2008) (concluding mother who executed paternity affidavit was

estopped from contesting paternity years later); Sheetz v. Sheetz, 63 N.E.3d 1077,

1078 (Ind. Ct. App. 2016) (finding birth mothers husband estopped from contesting

his own paternity because he held the child out as his own for twelve years); see also

Myers v. Myers, 13 N.E.3d 478, 48384 (Ind. Ct. App. 2014) (holding the doctrine of

laches prevented mother from challenging paternity).

In some cases, the father was deceased, and the court refused to disestablish

paternity based on the childs equitable interests. Estate of Lamey v. Lamey, 689

N.E.2d 1265, 1268, 1270 (Ind. Ct. App. 1997) (rejecting uncles standing to

disestablish paternity of childs deceased father because of the potential harmful

effect on the childs inheritance); Paternity of H.J.B. ex rel. Sutton v. Boes, 829 N.E.2d

157, 15960 (Ind. Ct. App. 2005) (rejecting guardian grandmothers standing to

disestablish deceased son-in-laws paternity of grandchild because it would have

significant negative emotional and financial consequences on the child).

Equitable principles also explain the cases addressing a fathers petition to

disestablish his own responsibilities. Pinter v. Pinter, 641 N.E.2d 101, 105 (Ind. Ct.

App. 1994) (precluding father from setting aside a child support order based on

public policies of protecting the childs interests); In re Paternity of K.M., 651 N.E.2d

271, 276 (Ind. Ct. App. 1995) (rejecting, as outside the equitable discretion of the

trial court, fathers request to set aside paternity order he had sought fifteen years

earlier); but see Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990) (permitting

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presumed father to disestablish paternity as part of marital dissolution in view of

how he came to learn he was not the father, i.e., incidentally through medical testing

undertaken in the childs best interests).

These equitable principles now apply equally to same-sex couples who create

a child via artificial insemination. In Gardenour v. Bondelie, 60 N.E.3d 1109, 1119

(Ind. Ct. App. 2016), trans. denied, the court affirmed joint legal custody, parenting

time and child support because the couple should be treat[ed] similarly to the

married couples in Levin and Engelking.

Plaintiffs cite Gardenour for the expansive proposition that, [u]nder Indiana

law, a same-sex spouse of a birth mother who conceived via artificial insemination is

the legal parent of a child born to the marriage. Appellees Br. 16. And, to be sure,

the Gardenour court deemed the former domestic partner a legal parent. 60 N.E.3d

at 1120. But it is one thing to hold a person who has acted in the role of parent to the

commitments that role implies for the sake of the childs best interests. It is quite

another to infer from such equitable imposition of parental responsibility an

entitlement to parental rights from birth.

Moreover, if Gardenour actually defines legal parental rights and entitlements

from birth, Plaintiffs would have no grounds for constitutional challengeonly a

state law mandamus claim for the birth certificates they demand. See Ind. Code

34-27-3-1. In that event, the proper course would be to declare this case moot by

happenstance and vacate the District Courts judgment. See, e.g., U.S. Bancorp

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Mortg. Co. v. Bonner Mall Pship, 513 U.S. 18, 22 (1994); United States v.

Munsingwear, Inc., 340 U.S. 36, 3940 (1950).

Doing so would be premature, of course. Indiana courts in future cases may

distinguish Gardenour, such as where a biological father claims parental rights

against the non-adopting wife of a birth mother. It would be more prudent to treat

Gardenour only as a fact-dependent equitable solution to family dissolutionand a

marker of equal treatment at that.

B. Baskin and Obergefell do not require states to confer parenthood with

marriage, and other states cases are easily distinguishable

1. Plaintiffs say that Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014),

forecloses the States arguments because there the State unsuccessfully argued

against same-sex marriage on the grounds of biologyprimarily procreation.

Appellees Br. 37. Comparing the two arguments because both use terms like

biology and procreation is fatally imprecise. Whether general procreative

capability justifies regulating relationships among adults has no logical bearing on

whether it justifies regulating relationships between adults and children.

Plaintiffs and amici curiae spend many pages proving the uncontested

proposition that Obergefell requires states to confer benefits of marriage equally on

opposite-sex and same-sex couples. Appellees Br. 13, 2527; NCLR Br. 1316; FLP

Br. 2021. But the parentage statutes that injured plaintiffs in the consolidated

Obergefell cases expressly conferred parental rights based on marriage, regardless of

biology. Mich. Comp. Laws 333.2824(6) (conferring parental rights to a husband

who consents to his wifes utilization of assisted reproductive technology); Ohio Rev.

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Code Ann. 3111.95(A) (regarding the husband of a woman undergoing non-

spousal artificial insemination as the natural father of child); Tenn. Code Ann.

68-3-30 (regarding a child born to a married woman as a result of artificial

insemination as the legitimate child of the womans husband).

The problem with that argument for this case is that Indiana does not confer

parental rights as benefits of marriage; it confers them as matters of biology and

adoption. Cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015) (observing states are

free to vary the benefits they confer on all married couples).

2. Plaintiffs and amici also cite post-Obergefell cases from other states that

supposedly support them. Appellees Br. 2729. But again, Indianas parental rights

laws differ from those states, so those cases are unhelpful.

Plaintiffs list cases from states that, unlike Indiana, do condition parental

rights or birth certificates on marital status. Sometimes, the statutes were facially

discriminatory. Marie v. Mosier, 196 F. Supp. 3d 1202, 1218 (D. Kan. July 22, 2016)

(holding that a Kansas law declaring any child born from artificial insemination to

be in all respects the same as a naturally conceived child of the husband and wife so

requesting and consenting to the use of such technique, Kan. Stat. Ann. 23-2302,

must be applied to same-sex married couples); Brenner v. Scott, Nos. 4:14cv107-

RH/CAS, 4:14cv138-RH/CAS, 2016 WL 3561754 at *3 (N.D. Fla. Mar. 30, 2016)

(requiring statute providing that [i]f the mother is married at the time of birth, the

name of the husband shall be entered on the birth certificate as the father of the

child, Fla. Stat. 382.013, apply to same-sex married couples); Campaign for S.

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Equality v. Miss. Dept of Human Servs., 175 F. Supp.3d 691, 710 (S.D. Miss. 2016)

(invalidating statute providing that Adoption by couples of the same gender is

prohibited); Roe v. Patton, No. 2:15-cv-00253-DB, 2015 WL 4476734 at *4 (D. Utah

July 22, 2015) (requiring that statute conferring parental rights on a husband who

consents to wifes artificial insemination apply to female spouses); see also Gartner v.

Iowa Dept of Pub. Health, 830 N.W.2d 335, 35052 (Iowa 2013) (invalidating under

state constitution a statute requiring state health department to place the

husbands name on the birth certificate if a married opposite-sex couple has a child

born during the marriage and if the couple used an anonymous sperm donor to

conceive the child).

Other times, the decision was predicated on proof of systematic unequal

treatment, which, again, does not exist here. In Carson v. Heigel, No. CV 3:16-0045-

MGL, 2017 WL 624803 at *1 (D.S.C. Feb. 15, 2017), even the State agreed that

[u]nder the same circumstances, if Plaintiffs were an opposite-sex married couple,

both of their names would be listed on the birth certificates. In Torres v. Seemeyer,

207 F. Supp. 3d 905, 914 (W.D. Wis. 2016), the department of health denied a two-

parent birth certificate to a lesbian couple based on lack of statutorily required

spousal consent for artificial insemination. But because evidence showed the

department did not enforce that statute against opposite-sex married couples, the

court found discrimination. Id.

Amici add two more cases, but neither is helpful. NCLR Br. 7. In Robicheaux

v. Caldwell, No. 13-cv-5090, 2015 WL 4090353 at *1*2 (E.D. La. July 2, 2015), the

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court provided no explanation of its holding regarding birth certificates. And in De

Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015), after the Fifth Circuit said nothing about

birth certificates, the district court on remand ordered state officials to create[],

issue[], and implement[] policy recognizing same-sex marriage in death and birth

certificates, but provided no explanation as to how the Texas system may have run

afoul of Obergefell. De Leon v. Abbott, SA-13-CA-00982-OLG, ECF No. 113 (W.D. Tex.

Aug. 11, 2015). Such lack of analysis may explain why Plaintiffs do not cite these

cases.

Plaintiffs also focus on McLaughlin v. Jones, 382 P.3d 118, 121 (Ariz. Ct. App.

2016), review granted April 18, 2017. But there, Arizona presumed the birth mothers

husband to be a parent under conditions that a wife could also meet, such as signing

the birth certificate. Ariz. Rev. Stat. 25-814(A). The court inferred from those

conditions that Arizonas paternity presumption statute is not necessarily

biologically based but rather based, instead, on the presumed fathers declared

intent to be the childs parent, such that being a presumptive parent was actually

conclusive. McLaughlin, 382 P.3d at 12123. Regardless whether the Arizona

Supreme Court reverses, that is not what Indiana law requires, so McLaughlin is not

instructive.

Finally, while Plaintiffs dismiss Smith v. Pavan, 505 S.W.3d 169, 178 (Ark.

2016), cert. pending, where the Arkansas Supreme Court upheld a paternity

presumption statute like Indianas, it affords a better comparison than the above

cases. There, the Arkansas statutes centered on the relationship of the biological

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mother and the biological father to the child, not on the marital relationship of

husband and wife. Id. Because a husband would not legally be the father where

(1) a court established paternity or (2) where the mother, husband, and putative

father file appropriate affidavits, the statutes did not intertwine[] the concepts of

parent with the rights and presumptions of marriage by using the words husband

and wife. Id. Pavan demonstrates that the details of state parental rights laws

matter when deciding whether Obergefell applies.

C. Meanwhile, the Constitution actually does protect the rights of

biological fathers, not to mention the rights of children to have
relationships with both biological parents

Plaintiffs dismiss biological parental relationships as but a factor frequently

taken into account by Indianas judiciary in disputes involving parental rights and

declare that the States paramount consideration in every case is doing what is in

the childs best interest. Appellees Br. 11. That assertion would be deeply troubling

if true, for it would suggest all newborns are but wards of the State, which suffers

parental rights at its whim.

1. The critical starting point is that the Constitution protects the rights of

biological parents to raise their children. It is plain beyond the need for multiple

citation that natural parents have a fundamental liberty interest . . . in the care,

custody, and management of their child that is far more precious than any property

right. Santosky v. Kramer, 455 U.S. 745, 753, 75859 (1982) (quotation omitted).

And the right is of biologicalnot maritalorigin. Stanley v. Illinois, 405 U.S. 645,

651 (1972) (Nor has the law refused to recognize those family relationships

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unlegitimized by a marriage ceremony.); id. at 652 (To say that the test of equal

protection should be the legal rather than the biological relationship is to avoid the

issue. For the Equal Protection Clause necessarily limits the authority of a State to

draw such legal lines as it chooses. (quotations and citation omitted)).

Plaintiffs reject this venerable authority and assert that the primary source

of these fundamental rights is not simply a biological connection, but the bonds of

familial love and affection between parent and child. Appellees Br. 14. They also

say parents due process rights derive[] neither from biology nor legal status, but

rather from the emotional bonds that develop between family members as a result of

shared daily life. But Plaintiffs doctrinal support for their re-imagined parental

rights philosophy, Lehr v. Robertson, 463 U.S. 248, 24950 (1983), only permits states

to treat biological parents differently after giving them a substantial opportunity to

establish a relationship with the child. It does not permit a state to negate them from

birth.

Moreover, unless Plaintiffs seek judicial involvement in every birth, what they

really demand is substitution of one imperfect parentage presumption for another.

Instead of a presumption that marriage signifies a biological bond between the child

and the husband of a birth mother, they prefer a presumption that marriage signifies

an emotional bond between the child and the spouse of the birth mother. But unlike

a presumption that enables vindication of the biological connection, there is no

constitutional grounding for a presumption that enables vindication of an emotional

connection. Cf. N.E. v. Hedges, 391 F.3d 832, 83334, 836 (6th Cir. 2004) ([T]here

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are no judicial decisions recognizing a constitutional right of a man to terminate his

duties of support under state law for a child that he has fathered, no matter how

removed he may be emotionally from the child.).

2. In addition, children may have a due process right to be cared for and

supported by the childs biological parents. See Rivera v. Minnich, 483 U.S. 574, 582

(1987) (observing that the requirement of clear and convincing evidence to support

termination of parental rights protects the parents, and to some degree the child,

from renewed efforts to sever their familial ties (emphasis added)); id. at 581

(observing that the child has an interest in preventing an erroneous determination

of paternity).

Plaintiffs position in this case would not only negate that constitutional

interest, but would also undermine the longstanding national commitment to holding

fathers financially responsible for their children. See id. at 580; see also, e.g., Social

Security Act, 42 U.S.C. 654 (known as Title IV-D).

III. Plaintiffs Do Not Dispute that Their Theory Creates Inequalities, and Do
Not Explain Why Biology Matters Only Sometimes

Under the District Courts ruling, the Paternity Presumption Statute is a

source of legal parental rightsbut only for spouses of birth mothers, not for two men

married to each other.

A. Plaintiffs system discriminates

Plaintiffs never even address, let alone refute, the point that this result

introduces inequality into Indianas parental rights system. Prior to the District

Courts injunction, when a married woman conceived a child through artificial

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insemination using donor sperm, her spousewhether male or femalewas required

to adopt the child in order to secure parental rights. But now, only male spouses

must seek an adoption; female spouses need not, because they now enjoy a

presumption of legal parenthood.

Married male couples, in particular, are left out of this new-age system of

presuming parental rights. Even where one of them is the biological father of a child,

neither is a presumed anything because neither is married to the birth mother.

Under the States theory, the lack of any presumption for the men in that scenario is

easy to explain: the birth mother is the presumed biological mother, but there is no

basis for presuming biological fatherhood in any particular man not married to her.

But under Plaintiffs theory, that explanation falls apart, because it concedes the role

of biology when it comes to parental presumptions. The coherence of Plaintiffs

system is shattered once the birth mothers parental rights are presumed, let alone

her wifes. If biology is not relevant for the birth mothers spouse, there is no reason

it should be relevant for herparticularly when there is no guarantee the birth

mother is biologically connected to the child (as in the case of the Phillips-Stackmans).

Perhaps the explanation is more practical. Two gay men must always get the

baby from outside the marriage, while the lesbian couple does not. But if unique

biological self-sufficiency were a satisfactory basis for parental-presumption line-

drawing, such would defeat Plaintiffs entire premise. With a lesbian couple, the birth

mother must always get the sperm from outside the marriage; not so for an opposite-

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sex couple. Ignoring biological reality with female couples while accounting for it

with male couples is surely sex discrimination.

B. Plaintiffs do not explain how parental rights not predicated on

biological connection to the child can be affected by evidence of
anothers biological connection to the child

Confusingly, both Plaintiffs and the District Court proclaim that female

spouses have only a rebuttable presumption of legal parenthood, and that the same

methods for rebutting the presumption of parenthood of the husband of a birth

mother are available for rebutting the presumption of parenthood of the wife of a

birth mother. Appellees Br. 19 (quoting Short App. 8). But how can that be so? The

presumption of parenthood for the husband is a presumption of fatherhood, which

can be rebutted with a paternity test. Whatever the nature of the presumption for

the wife, it is surely not a presumption of fatherhood.

The District Court instead is requiring a presumption that the wife of a birth

mother is the legal parent of her wifes child, without regard to any factual predicate

other than the marriage. There would not seem to be any logical connection between

an abstract presumption of legal parenthood and evidence of anothers paternity.

Permitting legal parenthood to be overridden by biology would conflict with the

fundamental rationale of legal parenthood, which is the existence of a marital

connection, not a biological one.

And there is a real risk Plaintiffs new-found presumed rights may be

rebutted in many cases. Plaintiffs are incorrect that only a biological father may

file a paternity action and that he must do so within two years of the birth. Again,

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the child, the childs mother, and the putative father are all statutorily entitled to file

a paternity action. The department of child services or the county prosecutor also

may sometimes file. Ind. Code 31-14-4-1. And the two-year time limit does not

apply if the biological father and mother agree to waive it and file the action jointly,

if either has previously acknowledged the biological fathers paternity in writing, or

if the biological father has supported the child. Appellants Br. 10 (citing Ind. Code

31-14-5-3). There is no telling the number of cases where any dimension of this

rebuttal system might be pertinent.

Nor are Plaintiffs necessarily correct in saying a sperm donor would have no

obligation or right to the child. Under Indiana law, sperm donor rights and

responsibilities are uncertain. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 598

(Ind. 1994) (requiring donor to pay support where there was no doctor involved in the

insemination and the contract was rudimentary); but see In re Paternity of M.F., 938

N.E.2d 1256, 126061 (Ind. Ct. App. 2010) (finding a contract for sperm donation

enforceable where doctor involved and the writing was formal). The Henderson

Plaintiffs own donor agreement stated: Each party . . . acknowledges that under

current Indiana law the rights, duties and obligations of semen donors with respect

to any resulting children are unclear. App. 97.

Plaintiffs now dismiss Straub because it involved natural rather than artificial

insemination. But in Paternity of M.F., a split court of appeals emphasized that in

order for a donor agreement to be enforceable, a physician must be involved in the

process of artificial insemination. 938 N.E.2d at 1261. Plainly, that will not be so

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in all cases. In fact, becoming artificially inseminated with anonymous donor sperm

can be very expensive. See App. 10. In this case alone, while several women were

artificially inseminated with anonymous donor sperm, one was not. App. 910.

C. Precisely because there are so many ways to form a family, the State
must be able to ensure parental rights are bestowed fairly in light of
the fundamental rights of all concerned

Indiana law already provides the means to sort through the various ways of

forming a family and all the competing interests that can arise. Plaintiffs seek

complete parental rights for each birth mother and her wife, and Indiana law provides

for that. Indiana has permitted adoption by same-sex couples for over a decade, and

in the case of the Phillips-Stackmans, it would permit Jackie to file a maternity action

to establish her biological maternity, and for Lisa to then seek a stepparent adoption.

See ECF No. 108 at 17 (States district court brief describing this process).

Plaintiffs would prefer a simpler process, but some procedural complexity is

reasonable given the array of interests inherently involved in assisted reproduction.

The presumed parenthood solution introducesas a matter of constitutional law,

no lessan entirely new concept that would either (1) if conclusive, simplify matters

only by negating rights of others, or (2) if rebuttable, incoherently shift the complexity

around.

The Family Equality Council argues that the states refusal to list both same-

sex spouses on the birth certificate at the time of the childs birth caus[es] children

to suffer the stigma of knowing their families are somehow lesser. FECC Br. 9. But

all adopted childrenwhether adopted by an opposite-sex couple, a same-sex couple,

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or a step-parentlack a birth certificate at the time of birth that lists the names of

both parents who will raise them. That does not mean that families with adopted

children are somehow lesser in the eyes of the State, particularly since all may ask

a court to order the birth certificate to be amended following the adoption. Ind. Code

31-19-2-2. Because of adoption, neither Plaintiffs nor infertile heterosexuals are

locked out of parenting (NCLR Br. 12), and they already have a legal avenue to

validate the love that they have for their children (FECC Br. 10).

The State provides these avenues, and at the same time accounts for the

inherent and fundamental constitutional rights biological fathers have in the care

and upbringing of their children. Plaintiffs confusing alternative scheme threatens

the States ability to serve the interests of all its citizens in this way.

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CONCLUSION

The judgment of the District Court should be reversed.

Respectfully submitted,

CURTIS T. HILL, Jr.

Attorney General of Indiana

s/Thomas M. Fisher
THOMAS M. FISHER
Solicitor General

LARA LANGENECKERT
CALE ADDISON BRADFORD
Deputy Attorneys General

Office of the Attorney General

IGC South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204
(317) 232-6255
[email protected]

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CERTIFICATE OF WORD COUNT

I verify that this brief contains 6916 words according to the word-count

function of Microsoft Word, the word-processing program used to prepare this brief.

By: s/ Thomas M. Fisher

Thomas M. Fisher
Solicitor General

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CERTIFICATE OF SERVICE

I hereby certify that on May 8, 2017, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit

by using the CM/ECF system, which sent notification of such filing to the following:

Karen Celestino-Horseman William R. Groth

Austin & Jones, P.C. Fillenwarth Dennerline Groth & Towe,
One N. Pennsylvania St., LLP
Suite 220 429 E. Vermont Street, Suite 200
Indianapolis, IN 46204 Indianapolis, IN 46202
Phone: (317) 632-5633 Phone: (317) 353-9363
Fax: (317-630-1040 Fax: (317) 351-7232
[email protected] [email protected]

Raymond L. Faust Richard Andrew Mann

Norris Choplin Schroeder LLP Megan L. Gehring
101 West Ohio Street, Richard A. Mann, P.C.
Ninth Floor 3750 Kentucky Ave.
Indianapolis, Indiana 46204 Indianapolis, IN 46221
Phone: (317) 269-9330 Phone: (317) 388-5600
Fax: (317) 269-9338 Fax: (317-388-5630
[email protected] [email protected]

S. Patrick McKey Ellen Ridley

Steven G Trubac Foley & Lardner LLP
Bryan Cave LLP 555 California Street. Ste. 1700
161 North Clark Street, Ste. 4300 San Francisco, California 94104
Chicago, Illinois 60601 Phone: (415) 434-4484
Phone: (312) 602-5000 Fax: (415) 424-4507
Fax: (312) 602-5050 [email protected]
[email protected]
[email protected] Walter Dellinger
OMelveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Phone: (202) 383-5300
Fax: (202) 383-5414
[email protected]

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David B. Goroff Anton Metlitsky

Foley & Lardner LLP Shane A. Hunt
321 North Clark Street John B. Hill
Suite 2800 OMelveny & Myers LLP
Chicago, Illinois 60654 Times Square Tower
Phone: (312) 832-4500 Seven Times Square
Fax: (312) 832-4700 New York, New York 10036
[email protected] Phone: (212) 326-2000
Fax: (212) 326-2061
[email protected]
[email protected]
[email protected]

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

Office of the Indiana Attorney General

Indiana Government Center South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6255
Facsimile: (317) 232-7979
[email protected]

30