### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17 - 1141 A SHLEE and R UBY H ENDERSON , et al . , Plaintiffs

- Appellees , v. K RISTINA B OX , Indiana State Health Commissioner , Defendant

- Appellant .

____________________ Appeal from the United States District Court for the Southern District of Indiana , Indianapolis Division. No. 1:15 - cv - 00220 - TWP - MJD

— Tanya Walton Pratt , Judge .

____________________ A RGUED M AY 22, 2017

— D ECIDED J ANUARY 17, 2020

____________________ Before F LAUM , E ASTERBROOK , and S YKES , Circuit Judges . E ASTERBROOK , Circuit Judge . The district court issued aninjunction requiring Indiana to treat children born into female - female marriages as having two female pare nts, who under the injunction must be listed on the birth certificate. 209 F. Supp. 3d 1059, 1079

– 80 (S.D. Ind. 2016 ) . Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent the man who provided the sperm, while it requires the identification as2 No. 17 - 1141 parent of one spouse who provided neither sperm nor egg. The judge concluded that this approach is required by the Due Process and Equal Protection Clause s of the Fourteenth Amendment, which as un derstood in Obergefell v. Hodges , 135 S. Ct. 2584 (2015), oblige governmental bo dies to treat same - sex couples identically to opposite - sex couples . Because Indiana lists a husband as a biological parent (when a child is born during a marriage ) even if he d id not provide sperm, the district judge concluded, it must treat a wife as a parent even if she did not provide an egg. The district court ’ s understanding of Obergefell has been confirmed by Pavan v. Smith , 137 S. Ct. 2075 (2017), which holds that same - se x and opposite - sex couples must have the same rights with respect to the identification of children ’ s parentage on birth certificates. Pavan held unco nstitutional a provision of Arkansas ’ s law that required a birth certificate to list as parents the names of the child ’ s mother and her husband. Plaintiffs in this suit contend that Pavan is equally applicable to them . That Indiana uses a presumption rather than a bright - line rule does not change the fact that both states treat same - sex and opposite - sex marriages differently when deciding how to identify who is a parent. And even in Arkansas mutual agreement among moth er, husband, and “ putative father ” could lead to a different list of parents on the birth certificate. If that did not save Arkansas’s law, the possibility of rebujing the presumption does not save Indiana’s. The state argues that Obergefell and Pavan do not control . In its view, birth certificates in Indiana follow biology rather than marital status . The state insists that a wife in an opposite - sex marriage who conceives a c hild through artificial in-No. 17 - 1141 3 semina tion must identify , as the father , not her husband but the sperm donor . The plaintiffs do not contend that a regimen using biology rather than marital status to identify parentage violates the federal Constitution, but they submit that Indiana ’ s law is s tatus - based . Thus this appeal depends on the resolut ion of a dispute about the meaning of Indiana law. Once we decide who is right about the state ’ s system, the outcome follows from Pavan . The district court found forbidden discrimination by pujing together three of Indiana ’ s statutes: Ind. Code §§ 31 - 9 - 2 - 15, 31 - 9 - 2 - 16, an d 31 - 14 - 7 - 1. The first of these says :

“ Child born in wedlock ” ... means a child born to: (1) a woman; and (2) a man who is presumed to be the child ’ s father under IC 31 - 14 - 7 - 1(1) or IC 31 - 14 - 7 - 1(2) unless the presumption is rebuje d . The second provides:

“ Child born out of wedlock ” ... means a child who is born to: (1) a woman; and (2) a man who is not presumed to be the child ’ s father under IC 31 - 14 - 7 - 1(1) or IC 31 - 14 - 7 - 1(2). And the third reads: A man is presumed to be a child ’ s biological father if:

(1) the: (A) man and the child ’ s biological mother are or have been married to each other; and (B) child is born during the marriage or not later thanthree hundred (300) days after the marriage is terminated by death, annulment, or d issolution;4 No. 17 - 1141 (2) the: (A) man and the child ’ s biological mother ajempted tomarry each other by a marriage solemnized in apparent compliance with the law, even though the marriage: (i) is void under IC 31 - 11 - 8 - 2, IC 31 - 11 - 8 - 3, IC 31 - 11 - 8 - 4, or IC 31 - 11 - 8 - 6 ; or (ii) is voidable under IC 31 - 11 - 9; and (B) child is born during the ajempted marriage or not later than three hundred (300) days after the ajemptedmarriage is terminated by death, annulment, or dissolution; or (3) the man undergoes a genetic test t hat indicates with at least a ninety - nine percent (99%) probability that the man is the child ’ s biological father. The district court treated the presumption in §31 - 14 - 7 - 1(1)(A) as the principal problem: a husband is presumed to be a child ’ s biological fat her, so that both spouses are listed as parents on the birth certificate and the child is deemed to be born in wedlock. There ’ s no similar presumption with respect to an all - female married couple

— or for that majer an all - male married couple. The district court ’ s injunction, which requires both women in a female - female marriage to be listed as parents (and treated as having parental rights and duties), solves the problem . Indiana tells us that looking only at the statutory text is myopic. It wants us to pla ce substantial weight on something the statutes do not say: How the presumption of male parentage in a mal e - female marriage is overcome. According to the state, women who give birth are asked to provide the name of the child ’ s “ father ”

— not of the “ husband ” but of the “ father. ” And one form (the “ birth worksheet ” ) given toNo. 17 - 1141 5 new mothers ind eed calls for this information, though without defining the terms. The state wants us to treat this form, rather than §31 - 14 - 7 - 1(1), as the governing rule. As the state sees things, “ father ” means “ biological father, ” so if a child is a result of in vitro fertilization using donated sperm, or of sexual relations outside marriage, thenthe presumption has been overcome and there is no remaining difference between female - male marriages and female female marriages. In either situation the birth mother must name as the child ’ s father the man who provided the sperm, and every birth certificate will have one male parent and one female parent. To achieve any other result, the state insists, a married cou ple (all - female, all - male , or opposite - sex ) must use the adoption system. Only following an adoption would it be proper to list “ Mother # 1” and “ Mother #2 ” on a child ’ s birth certificate, as the district judge required. Indiana issuesan amended birth certificate following adoption, while keeping the original as a record of biological parentage. The state then achieves two objecti ves: identifying biological parentage in the original birth certificate, and identifying legal parentage (and duties) in the seco nd. Trying to do both is not discriminatory , Indiana tells us. The district judge thought the state ’ s account of mothers ’ behav ior to be implausible. Some mothers filling in the form may think that “ husband ” and “ father ” mean the same thing. Others may name their husbands for social reasons, no majer what the form tells them to do. Indiana contends that it is not responsible for private decisions, and that may well be so — but it is responsible for the text of Ind. Code §31 - 14 - 7 - 1(1), which establishes a presumption that applies to opposite - sex marriages but not same - sex marriages. Oppo-6 No. 17 - 1141 site - sex couples can have their names on children ’ s birth certificates without going through adoption; same - sex couples cannot. Nothing about the birth worksheet changes that rule. Indiana insists that the presumption of parenthood in an opposite - sex marriage does not have le gal consequences . Eve n after a husband ’ s name is on the birth certificate, the state maintains, that does not affect parental rights and duties . A husband does not have any legal rights or duties unless he is the biological father. See Cochran v. Cochran , 717 N.E.2d 892, 894 ( In d . App. 1999) . Yet even a bursting - bubble presumption

— one that vanishes as soon as it is contested

— has some consequences. Unless the presumption is contested, the husband is deemed the father too, with parental rights and parental duties, in a way that b oth women in a female female marriage are not. One problem with this suit has been the paucity of state decisions interpreting the three statutes at issue. Indiana Code §§ 31 - 9 - 2 - 15 and 31 - 9 - 2 - 16 have never been the subject of litigation, while Ind. Code § 31 - 14 - 7 - 1 has rarely been litigated. We have been tempted to certify to the Supreme Court of Indiana the question whether the presumption in Ind. Code §31 - 14 - 7 - 1 is indeed a bursting bubble and whether the instructions on the birth worksheet should be trea ted as if they had been enacted . But we have decided not to certify, because a few decisions hold that the statutory presumption has real force , and none holds otherwise . For example, Lamey v. Lamey , 689 N.E.2d 1265 , 1268 (Ind. App. 1997), holds that the p resumption cannot be overcome after a husband dies

— something that may happen at any time. And Myers v. Myers , 13 N.E.3d 478 , 482

– 83 (Ind. App. 2014), holds that only the clearest of evidence can overcome theNo. 17 - 1141 7 presumption if the husband has signed the birth certificate. Another decision says that this means clear and convincing evidence, a long way from a bursting bubble. Richard v. Richard , 812 N.E.2d 222, 228 (Ind. App. 2004) . There ’ s a deeper problem and a stronger reason not to certify: all of the contested statutes were enacted long before Obergefell and Pavan . They are product s of a time when only opposite - sex marriages were recognized in Indiana. There ’ s nothing a court can do to remove from the s tate ’ s statute books provisions assuming that all marriages are opposite sex. Judges could reduce the weight of a presumption that a husband is also a father, but no act of intellectually honest interpretation could make that pre sumption vanish . It would n ot be seemly for us to ask the Supreme Court of Indiana to save the state statutes by rewriting them. They are what they are. The legislature can rewrite them; the judiciary cannot. In revising the statutes, a legislature could take account of the fact

— as the current statutes do not

— that both women in a same - sex marriage may indeed be biological mothers. Indiana asserts an interest in recording biological facts , an interest we cannot gainsay . But Indiana ’ s current statutory system fails to acknowledge the p ossibility that the wife of a birth mother also is a biological mother. One set of plaintiffs in this suit shows this . Lisa Philips - Stackman is the birth mother of L.J.P. - S., but Jackie Philips - Stackman, Lisa ’ s wife, was the egg do nor. Thus Jackie is both L.J.P. - S. ’ s biological mother and the spouse of L.J.P. - S. ’ s birth mother. There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record. We agree with the district court that, after Obergefell and Pavan , a state cannot presume that a husband is the father of8 No. 17 - 1141a child born in wedlock, while denying an equivalent presumption to parents in same - sex marriages. Because Ind. Code § 31 - 14 - 7 - 1(1) does that , its operation was properly enjoined. Other parts of the district court ’ s remedy, however, are not appropriate. For example, the judge declared that the three statutes are invalid in their entireties and forbade their operation across the board. Yet some parts of these statutes have a proper application. For example, Ind. Code §31 - 14 - 7 - 1(3) declares that a ma n is deemed to be a biological f ather if a genetic test shows a 99% or higher probability of parenthood. And Ind. Code § 31 - 14 - 7 - 1(2), operating in conjunction with Ind. Code §31 - 9 - 2 - 15(2), provides that a child is born in wedlock if the parents ajempted to marry eachother but a technical defect prevented the marriage from being valid. Neither of these provisions even arguably violates the Constitution , as understood in Obergefell and Pava n . A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised. Some parts of the injunction, like some pa r ts of the district court ’ s opinion, appear to turn a presumption of parentage into a rule of p arentage, so that in a same - sex marriage the birth certificate must list “ Mother #1 ” and “ Mother #2 ”even if, say, the birth mother conceives through sexual relations with a man and freely acknowledges the child ’ s biological parentage. As we have stated se ve ral times, the Fourteenth Amendment does not forbid a state from establishing a birth - certificate regimen that uses biology rather than marital status to identify parentage . A state is entitled to separate the questions “ whose genes does a given child ca rry ? ” from “ what parental rights and duties do spouses have? ” TheNo. 17 - 1141 9 prob lem is that Indiana appears to merge these questions while specifying that biological heritage wins in the event of conflict

— that ’ s the function of §31 - 14 - 7 - 1(3)

— yet providing husbands w ith a presumption, withheld from wives, that a given legal status supports an inference of parenthood. There ’ s no constitutional reason why a presumption that can be defeated for men can ’ t be defeated for women too. This means that although the district co urt was on solid ground to enjoin the state “ from enforcing Indiana Code §§ 31 - 9 - 2 - 15, 31 - 9 - 2 - 16, and 31 - 14 - 7 - 1 in a manner that prevents the presumption of parenthood to be granted to female, same sex spouses of birth mothers ” (209 F. Supp. 3d at 1079) , other language need s revision. Finally, some language in the opinion and injunction might be understood to suggest that female - female married couples must be treated differently from male - male cou ples, for whom adoption is the only way to produce “ Father #1 ” and “ Father #2 ” on a birth certificate. Although the plaintiffs in this suit are adult women (and children of both sexes),and it would therefore be inappropriate for the court to decide the proper treatment of children born during male - male marriages, it would be helpful for the district court to provide expressly that this question is left open for resolution by the legislature or in some future suit. It also is important to be clear that this litigation does not decide what parental rights and duties (if any) biological fathers such as sperm donors have with respect to the children of fe male - female marriages. No biological father is a litigant. Having expressed these concern s, we must be clear what need not change. The district court ’ s order requiring Indiana to recognize the children of these plaintiffs as legitimate10 No. 17 - 1141 children, born in wedlock, and to identify both wives in each union as parents, is affirmed. The injunction and declaratory judgment are affirmed to the extent they provide that the presu mption in Ind. Code §31 - 14 - 7 - 1(1) violates the Constitution . The remainder of the judgment is vacated, and thecase is remanded for proceedings consistent with this opinion.