Kristina Box, Commissioner, Indiana Department of Health v. Ashlee Henderson, et al.

In Pavan v. Smith, 137 S. Ct. 2075, 2078–79 (2017), the Court said that while a State may adopt a biology-based birth-certificate system, if it instead “uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents,” it must afford the same recognition to opposite- and same-sex marriages. The Court thus invalidated a law that placed the name of a birth-mother’s husband—but not wife—on the birth certificate of a child conceived using donor sperm. Such a law makes “birth certificates about more than just genetics” but fails to treat all marriages alike. Id. at 2078. Here, the Seventh Circuit affirmed that a State may “establish[] a birth-certificate regimen that uses biology rather than marital status to identify parentage.” App. 10a. Yet it held that Indiana’s birth-certificate system is based on marriage rather than biology—and is unconstitutional—because Indiana presumes, subject to evidentiary rebuttal, that a birth-mother’s husband (but not wife) is the child’s biological father. Id. This case thus presents the following question: May a State, consistent with the Fourteenth Amendment Due Process and Equal Protection Clauses, adopt a biology-based birth-certificate system that includes a rebuttable presumption that a birth mother’s husband—but not wife—is the child’s biological parent?