HENDERSON et al v. ADAMS, et al.

Filing 116

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT - The Court GRANTS the Tippecanoe County Defendants' Motion for Summary Judgment (Filing No. 82 ), and claims against each of the County Defendants are dismissed for lack of jurisdiction. The Court G RANTS the Plaintiffs' Motion for Summary Judgment against the State Defendant (Filing No. 77 ), and DENIES the State Defendant's Motion for Summary Judgment (Filing No. 84 ). (See Entry for details). Signed by Judge Tanya Walton Pratt. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ASHLEE HENDERSON and
RUBY HENDERSON a married couple, and
L.W.C.H. by his parent and next friend Ruby
Henderson, et al.,
Plaintiffs,
v.
DR. JEROME ADAMS in his official capacity
as Indiana State Health Commissioner, et al.,
Defendants.

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ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
The disputes in this matter surround complex legal issues following the United States
Supreme Court’s mandate that legally married same-sex couples in the United States are entitled
to the same privileges and benefits as legally married heterosexual couples. The Plaintiffs in this
case are female, same-sex married couples and their children whose birth certificates list only the
birth mother as a parent with no second parent. The Plaintiffs seek injunctive relief to list both the
birth mother and her same-sex spouse on their children’s birth certificates and to have their
children recognized as children born in wedlock. They also seek declaratory judgment that Indiana
Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 violate the Equal Protection Clause and Due Process
Clause of the Fourteenth Amendment to the United States Constitution. The Defendants assert
that Plaintiffs’ claims must fail because the challenged statutes impinge no fundamental rights and
in any event are narrowly tailored to vindicate compelling state interests.
Before the Court are cross-motions for summary judgment filed pursuant to Federal Rule
of Civil Procedure 56. Plaintiffs Ashlee Henderson, Ruby Henderson, L.W.C.H., Nicole Singley,

Jennifer Singley, H.S., Elizabeth Bush-Sawyer, Tonya Bush-Sawyer, I.J.B-S, Cathy Bannick,
Lyndsey Bannick, H.N.B., Nikkole McKinley-Barrett, Donnica Barrett, G.R.M.B., Calle Janson,
Sarah Janson, F.G.J., Jackie Phillips-Stackman, Lisa Phillips-Stackman, L.J.P-S, Noell Allen, and
Crystal Allen (collectively “the Plaintiffs”) filed their motion on December 4, 2015 (Filing No.
77). Shortly thereafter, Tippecanoe County Defendants (Filing No. 82), and Marion County
Defendants, Bartholomew County Defendants, Vigo County Defendants, and the State Defendant 1
(Filing No. 84), filed cross-motions for summary judgment.
The parties request summary judgment on the Plaintiffs’ claims for injunctive relief and
declaratory judgment. For the following reasons, the Court GRANTS the Plaintiffs’ Motion for
Summary Judgment against the State Defendant, GRANTS the Tippecanoe County Defendants’
Motion for Summary Judgment, and DENIES the State Defendant’s Motion for Summary
Judgment.

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The State and County Defendants are (1) Dr. Jerome M. Adams in his official capacity as Commissioner of the
Indiana State Department of Health (“State Defendant”); (2) Dr. Virginia A. Caine in her official capacity as Director
and Health Officer of the Marion County Health Department; Darren Klingler in his official capacity as Administrator
of Vital Records of the Marion County Health Department; and Dr. James D. Miner, Gregory S. Fehribach, Lacy M.
Johnson, Charles S. Eberhardt, II, Deborah J. Daniels, Dr. David F. Canal, and Joyce Q. Rogers in their official
capacities as Trustees of Health & Hospital Corporation of Marion County (collectively “Marion County
Defendants”); (3) Dr. Jeremy P. Adler in his official capacity as Health Officer for the Tippecanoe County Health
Department; Craig Rich in his official capacity as Administrator of the Tippecanoe County Health Department; Glenda
Robinette in her official capacity as Registrar of Vital Records of the Tippecanoe County Health Department; and
Pam Aaltonen, Dr. Thomas C. Padgett, Thometra Foster, Karen Combs, Kate Nail, Dr. John Thomas, and Dr. HsinYi Weng in their official capacities as members of the Tippecanoe County Board of Health (collectively “Tippecanoe
County Defendants”); (4) Dr. Brian Niedbalski in his official capacity as Health Officer of the Bartholomew County
Health Department; Collis Mayfield in his official capacity as Director of the Bartholomew County Health
Department; Beth Lewis in her official capacity as Registrar of Vital Records of the Bartholomew County Health
Department; and Dennis Stark, Dr. Michael Chadwick, Dr. Susan Sawin-Johnson, Michael Meyer, Dr. Charles
Hatcher, Dr. Brooke F. Case, Cindy Boll, and Jim Reed in their official capacities as members of the Bartholomew
County Board of Health (collectively “Bartholomew County Defendants”); and (5) Dr. Darren Brucken in his official
capacity as Health Officer of the Vigo County Health Department; Joni Wise in her official capacity as Administrator
of the Vigo County Health Department; Terri Manning in his official capacity as Supervisor of Vital Statistics of the
Vigo County Health Department; and Jeffery DePasse, Dora Abel, Dr. Irving Haber, Brian Garcia, Michael Eldred,
Dr. James Turner, and Dr. Robert Burkle in their official capacities as members of the Vigo County Board of Health
(collectively “Vigo County Defendants”).

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I.

BACKGROUND

The parties essentially do not dispute the key background facts. Where there is a disputed
fact, the Court has construed all inferences in the light most favorable to the non-moving party.
A.

The Plaintiffs
Plaintiffs Ashlee and Ruby Henderson were lawfully married in Tippecanoe County,

Indiana on November 11, 2014. Prior to their marriage, the couple had been together for over
eight years and decided they wanted a child in their family. After the couple’s artificial conception
of L.W.C.H., the Indiana statute prohibiting same-sex marriage was declared unconstitutional, so
Ashlee and Ruby married.
During the week of November 2, 2014, the couple contacted IU Health Arnett Hospital,
where L.W.C.H. would be born, to ask if both spouses would be listed on the birth certificate as
parents of L.W.C.H. after the couple was married. The couple was told to contact the Tippecanoe
County Health Department. On the same day, the couple contacted the Tippecanoe County Health
Department and were told that Ashlee would not be listed on the birth certificate as a parent of
L.W.C.H. without a court order.
L.W.C.H. was born on December 22, 2014, at IU Health Arnett Hospital in Lafayette,
Indiana. After the child’s birth, Ruby was asked to complete the Indiana Birth Worksheet. The
couple revised each question asking for information regarding the father of the child by replacing
the term “father” with the term “Mother #2.” All information provided regarding “Mother #2”
related to Ashlee, the legal spouse of Ruby who was the birth mother. On January 22, 2015, the
Tippecanoe County Health Department issued L.W.C.H.’s birth certificate, which noted only Ruby
Henderson as a parent.

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Plaintiffs Elizabeth and Tonya Bush-Sawyer were lawfully married in Washington, D.C.
in 2010. They artificially conceived I.J.B-S, who was born on January 10, 2014. When I.J.B-S
was born, Elizabeth, the birth mother, completed the Indiana Birth Worksheet, providing Tonya’s
information for all the questions that asked about the father of the child. After returning home
from the hospital with I.J.B-S, the couple received a birth confirmation letter that listed both
women as the parents of I.J.B-S and that listed the child’s name as a hyphenated version of both
their last names. In March 2014, Elizabeth went to the Marion County Health Department to
obtain I.J.B-S’s birth certificate. At the health department, she was told there was something
wrong, and she would need to return the next day. When she returned, Elizabeth was presented
with a birth certificate that listed her as the only parent of I.J.B-S, and the child’s name had been
changed from I.J.B-S to I.J.B. Shortly thereafter, Elizabeth and Tonya received a new social
security card for I.J.B-S, which listed the name as I.J.B.
Tonya is seeking a stepparent adoption. She is required to undergo fingerprinting and a
criminal background check in addition to submitting her driving record, her financial profile, and
the veterinary records for any pet living in the home. A home study is being conducted, which
examines the relationship history of Elizabeth and Tonya, requires them to write an autobiography
and to discuss their parenting philosophy, and requires them to open their home for inspection.
The cost for their stepparent adoption is approximately $4,200.00 (Filing No. 79-1 at 3–4).
Nicole and Jennifer Singley were lawfully married in January 2014. The couple artificially
conceived a baby, and on March 29, 2015, H.S. was delivered by Jennifer. Nicole was not listed
as a parent on the birth certificate of H.S. Nicole is an active duty member of the U.S. Army and
is entitled to all the benefits available to members of the Army, including health insurance.
Currently, her family is covered by military health insurance. H.S. is eligible for healthcare
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coverage under the military insurance program because H.S. is considered to be the stepchild of
Nicole. If Jennifer should predecease H.S., then H.S. will no longer be eligible for Nicole’s health
insurance and other military benefits (such as in-state tuition) because Nicole no longer will be
considered his stepparent.
Lyndsey and Cathy Bannick were lawfully married in Iowa in October 2013. They decided
to have a child, and Lyndsey was artificially inseminated. H.N.B. was born to the couple on May
8, 2015, in Bartholomew County, Indiana. Cathy’s information was provided on the Indiana Birth
Worksheet so that she could be listed as the second parent on H.N.B.’s birth certificate. However,
Lyndsey was the only parent listed on the birth certificate.
Calle and Sarah Janson were lawfully married in Indianapolis on June 27, 2014. They
decided to have a child, and through artificial conception, Calle became pregnant. F.G.J. was born
to the couple on December 1, 2015; however, F.G.J.’s birth certificate does not list Sarah as a
parent.
Nikkole McKinley-Barrett and Donnica Barrett were lawfully married on June 25, 2014,
and they have been together for approximately twelve years. They decided to have a child together,
and Donnica was artificially inseminated. G.R.M.B. was born to the couple on April 3, 2015, in
Vigo County, Indiana. Nikkole’s information was provided on the Indiana Birth Worksheet so
that she could be listed as the second parent on G.R.M.B.’s birth certificate. However, Donnica
was the only parent listed on the birth certificate.
Noell and Crystal Allen were lawfully married in New York City on November 22, 2013.
They had already been together fourteen years. They have a daughter, E.A., who was conceived
through artificial insemination and delivered by Noell. Crystal subsequently adopted E.A., and
both Noell and Crystal are legal parents of E.A.
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The couple decided that they wanted to add to their family, and Crystal also wanted the
experience of giving birth. With the aid of intra-uterine insemination, Crystal became pregnant.
Their twins, Ashton and Alivea Allen, were born prematurely on November 21, 2015, and died
the same day. The following day, hospital staff informed the couple that Noell would not be listed
on the twins’ birth certificates. Noell was later informed by the Indiana State Department of Health
(“ISDH”) that the State was unwilling to add Noell to the birth certificates in the absence of a court
order. Because the twins are deceased, Noell cannot adopt them to become their legal parent.
While Noell is not listed as a parent on the birth certificates, she is listed as a parent on the twins’
death certificates.
Jackie and Lisa Phillips-Stackman were lawfully married on October 5, 2015. Together,
they decided to have a child with the assistance of in vitro fertilization. Jackie’s egg was fertilized
with sperm from a third-party donor and then implanted in Lisa. Lisa carried the baby and then
delivered on October 21, 2015. While at the hospital, hospital staff completed the Indiana Birth
Worksheet with the couple. It was explained that only Lisa could be listed as a parent on the birth
certificate and that Jackie could not be listed as a parent without a court order even though Jackie
was the biological parent. Although the couple was lawfully married at the time of their child’s
birth, Jackie and Lisa received a notice from the Marion County Health Department explaining
how a parent could be added to the birth certificate of a child born out of wedlock.
Jackie is a detective with the Indianapolis Metropolitan Police Department, and her health
insurance provides coverage for L.J.P-S, who is considered Jackie’s stepchild. Unfortunately,
L.J.P-S suffers from serious medical problems. If Lisa should predecease L.J.P-S, because Jackie
is not legally recognized as a parent of L.J.P-S, L.J.P-S would no longer qualify for health care
under Jackie’s insurance.
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Each of the Plaintiff female, same-sex married couples agreed to have children together
and conceived through various forms of assisted reproduction, using sperm from third-party
donors. In each instance, the birth mother was listed on the child’s birth certificate, but the samesex spouse was not listed on the birth certificate as a parent. The non-birth mothers seek to be
listed on their child’s birth certificate and to be recognized as a parent. Each of the children were
born during the couples’ marriage, and the couples want their children to be recognized as being
born in wedlock. The married couples have been informed that the non-birth mother may become
a legally recognized parent only if she goes through the legal adoption process to adopt her child.
B.

Indiana Birth Certificates
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 Indiana’s “Certificate of Live Birth Worksheet.” The Indiana Birth
Worksheet was created by the State of Indiana as part of the Indiana Birth Registration System.
Staff at the hospital upload the information provided on the Indiana Birth Worksheet to a State
database. The county health department then receives notification that birth information has been
added to the database. A notification letter to the birth mother is generated in a form provided by
the State, which indicates that information has been received by the county health department and
requests that the mother notify the county health department if there is an error with respect to the
child’s identifying information. The notification letter also informs the mother that a certified
copy of the record of birth is available from the local health office. If a person wants to obtain a
birth certificate, the individual is required to complete an “Application for a Certified Birth
Certificate.” The birth certificate application requires the individual to provide information
required by the State of Indiana. Upon successful completion of the application, the county health
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department will generate a birth certificate based on the information available to it through the
State’s database.
When the hospital staff and the birth mother complete the Indiana Birth Worksheet, the
responses to questions 37 through 52 determine whether and what information concerning the
identity of the child’s father will appear on the birth certificate. Question 37 asks, “are you married
to the father of your child.” If the answer is “no,” the birth mother is asked to go to question 38,
and if the answer is “yes,” the birth mother proceeds to questions 39 through 52. Question 38 asks
if a paternity affidavit has been completed for the child. If the answer is “yes,” the birth mother
proceeds to questions 39 through 52. If the answer is “no,” the birth mother is asked to skip
questions 39 through 52 and go to question 53. Questions 39 through 52 pertain to information
about the father. Thus, if the birth mother indicates that she is not married to the father of the child
and that a paternity affidavit has not been completed, there would be no information about the
father provided on the Indiana Birth Worksheet and, consequently, no information about the father
would be available when the birth certificate is generated.
Question 11 of the Indiana Birth Worksheet asks, “What will be your BABY’S legal name
(as it should appear on the birth certificate)?” Regardless of how the birth mother answers question
11, Indiana law requires that a “child born out of wedlock” be given the mother’s surname unless
a paternity affidavit dictates to the contrary. Ind. Code § 16-37-2-13.
ISDH is statutorily charged with providing a system of vital statistics in Indiana. Among
other things, ISDH prescribes information to be contained in each kind of application or certificate
of vital statistics, administers the putative father registry, and establishes the Indiana Birth
Registration System for recording in an electronic format all live births in Indiana. Records of

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births submitted to the Indiana Birth Registration System are submitted by physicians, persons in
attendance at birth, or local health departments using the electronic system created by ISDH.
Within five days of the birth, a certificate of birth or paternity affidavit must be filed using
the Indiana Birth Registration System. The local health officer is required to make a permanent
birth record of information from the certificate of birth. The record includes the child’s name, sex,
date of birth, place of birth, name of parents, birthplace of parents, date of filing the certificate of
birth, the person in attendance at the birth, and the location of the birth. ISDH is charged with
making corrections or additions to the birth certificate. Such additions or corrections can be made
by ISDH upon receipt of adequate documentation, including the results of a DNA test or a paternity
affidavit.
C.

The Challenged Statutes
The Plaintiffs challenge the constitutionality of Indiana Code §§ 31-9-2-15, 31-9-2-16, and

31-14-7-1 under the Equal Protection Clause and Due Process Clause of the Fourteenth
Amendment. Indiana Code §§ 31-9-2-15 and 31-9-2-16 define the terms “child born in wedlock”
and “child born out of wedlock.” Indiana Code § 31-14-7-1 establishes a presumption of paternity
in a birth mother’s husband.
Indiana Code § 31-9-2-15 states:
“Child born in wedlock”, for purposes of IC 31-19-9, 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 rebutted.
Indiana Code § 31-9-2-16 states:
“Child born out of wedlock”, for purposes of IC 31-19-3, IC 31-19-4-4, and IC 3119-9, 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).
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Indiana Code § 31-14-7-1 states:
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 than three hundred (300)
days after the marriage is terminated by death, annulment, or dissolution;
(2) the:
(A) man and the child’s biological mother attempted to marry 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 31-118-6; or
(ii) is voidable under IC 31-11-9; and
(B) child is born during the attempted marriage or not later than three
hundred (300) days after the attempted marriage is terminated by death,
annulment, or dissolution; or
(3) the man undergoes a genetic test that indicates with at least a ninety-nine
percent (99%) probability that the man is the child’s biological father.
The Plaintiffs assert that these statutes violate the Fourteenth Amendment’s guarantees of equal
protection and due process because they create a presumption of parenthood for men married to
birth mothers but not for women married to birth mothers and because they stigmatize children
born to same-sex married couples as children born out of wedlock.
On February 13, 2015, the Plaintiffs filed their Complaint, asking the Court for declaratory
judgment that Indiana Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 are unconstitutional, for
injunctive relief to list both the birth mother and her same-sex spouse on their children’s birth
certificates, and to recognize their children as being born in wedlock. The parties then filed crossmotions for summary judgment on the Plaintiffs’ claims for injunctive relief and declaratory
judgment. On April 8, 2016, the parties presented oral argument to the Court on the cross-motions
for summary judgment.

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II.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the
record in the light most favorable to the non-moving party and draw[s] all reasonable inferences
in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
“However, inferences that are supported by only speculation or conjecture will not defeat a
summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007)
(citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on
a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth,
476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory
statements or speculation but only with appropriate citations to relevant admissible evidence.”
Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
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These same standards apply when each party files a motion for summary judgment. The
existence of cross-motions for summary judgment does not imply that there are no genuine issues
of material fact. R.J. Corman Derailment Serv., LLC v. Int’l Union of Operating Eng’rs., 335 F.3d
643, 647 (7th Cir. 2003). The process of taking the facts in the light most favorable to the nonmoving party, first for one side and then for the other, may reveal that neither side has enough to
prevail without a trial. Id. at 648. “With cross-motions, [the Court’s] review of the record requires
that [the Court] construe all inferences in favor of the party against whom the motion under
consideration is made.” O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001)
(citation and quotation marks omitted).
III.

DISCUSSION

The Plaintiffs move for summary judgment, asking the Court for a declaratory judgment
that Indiana Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 violate the Equal Protection and Due
Process Clauses of the Fourteenth Amendment by not recognizing their children as being born in
wedlock and by not granting a presumption of parenthood to the non-birth mother same-sex
spouse. The Plaintiffs also request injunctive relief to list both same-sex spouses on their
children’s birth certificates and to recognize their children as being born in wedlock. The
Defendants argue that declaratory judgment and injunctive relief are inappropriate because the
challenged statutes do not provide unequal treatment and are narrowly tailored to serve a
compelling state interest. The Tippecanoe County Defendants further assert that Plaintiffs lack
standing to sue the Tippecanoe County Defendants. The Court will address each argument,
beginning with the standing issue.

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A.

The Plaintiffs’ Standing to Sue County Defendants
The Tippecanoe County Defendants argue that Plaintiffs lack standing to sue them because

the Plaintiffs’ alleged injuries are not fairly traceable to the challenged action of the Tippecanoe
County Defendants, and their alleged injuries will not be redressed by a favorable decision against
the Tippecanoe County Defendants. These arguments apply equally to the Marion County
Defendants, Bartholomew County Defendants, and Vigo County Defendants.
In order to establish standing, a plaintiff must show an injury in fact, a causal connection
between the injury and the conduct complained of, and it must be likely (not just speculative) that
the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992). The injury has to be fairly traceable to the challenged action of the defendant. Id.
at 560. Citing Seventh Circuit case law, the Tippecanoe County Defendants explain that the suit
should be brought against entities that have legal responsibility for the flaws Plaintiffs perceive in
the system and from whom they ask something which would conceivably help their cause. See
Hearne v. Board of Education, 185 F.3d 770, 777 (7th Cir. 1999) (plaintiffs’ inability to show that
the defendant bears any legal responsibility for the flaws they perceive in the system bars the
plaintiffs’ action).
The Tippecanoe County Defendants explain that their involvement with the Plaintiffs is
purely ministerial, and the Plaintiffs’ true conflict is with the laws of the State of Indiana and the
State’s administration of its birth records system. The Tippecanoe County Health Department
produces birth certificates that are consistent with the information provided to it through the State’s
birth records database. ISDH prescribes the information that is required for birth certificates and
for applications for birth certificates. Local hospitals collect the State prescribed information from
birth mothers and submit that information to the State’s database. The Tippecanoe County Health
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Department then produces birth certificates based on that State prescribed information which is
contained in the State’s database. The Tippecanoe County Defendants have no authority to deviate
from this procedure, to change the information in the State’s database, to use different information
to create birth certificates, or to place a Plaintiff non-birth mother on the birth certificate. The right
to be listed on a birth certificate and the process of being listed are dictated by the State of Indiana,
not by the county health departments. Therefore, there is no causal connection between the injury
claimed by the Plaintiffs and the conduct of the Tippecanoe County Defendants. Additionally, the
Tippecanoe County Defendants’ role in the process does not in any way define children as being
born in or out of wedlock under the Indiana statutes. Thus, the Tippecanoe County Defendants
argue, the Plaintiffs’ injuries cannot be fairly traceable to the challenged action of the Tippecanoe
County Defendants. Consequently, the Plaintiffs lack standing to bring this action against the
Tippecanoe County Defendants.
The Tippecanoe County Defendants also argue that the Plaintiffs’ alleged injuries will not
be redressed by a favorable decision against them because the contents of birth certificates are not
discretionary for the county health departments; birth certificate information is dictated by ISDH.
If the Tippecanoe County Defendants were to attempt to go outside the State’s regulatory system
for producing birth certificates, their actions would be ultra vires and would result in invalid birth
certificates. They assert that,
[A] mandate from this Court requiring TCHD to add Mrs. Henderson to the birth
certificate -- in the absence of an order altering the State’s regulatory scheme -would be outside TCHD’s authority and, while TCHD would comply with the order
of this court, a certificate issued by TCHD outside of the State’s regulatory scheme
would be of questionable value. The value in a birth certificate is founded upon the
regulatory system underlying the certificate. Alternately, if this Court issued a
mandate altering the State’s regulatory scheme for issuing birth certificates, TCHD
would be bound to comply with the new state system even in the absence of an
order directed at TCHD.
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(Filing No. 83 at 17.) The Tippecanoe County Defendants assert that, for this additional reason,
the Plaintiffs lack standing to bring this action against them.
In response to these arguments regarding a lack of standing, the Plaintiffs assert that their
injuries are traceable to the County Defendants’ actions because it is the County Defendants that
actually issue the birth certificates that do not list both same-sex spouses as parents on the birth
certificates. The Plaintiffs also assert that a favorable decision against the County Defendants will
redress the Plaintiffs’ injuries because the Tippecanoe County Defendants acknowledge that they
would comply with an order from this Court mandating the issuance of birth certificates listing
both spouses as parents.
The Court is convinced by the evidence and argument that the County Defendants do not
have authority or discretion to deviate from the State’s regulatory system for creating and issuing
birth certificates in the State of Indiana. The State dictates what information is collected, the
method by which information is collected, how information is stored, and how information can be
used to generate birth certificates. The State also governs how information on a birth certificate
may be modified. The real injury to the Plaintiffs stems from the State’s regulatory framework
and ISDH’s control over the State’s vital statistics system. Injury is not fairly traceable to the
County Defendants. Additionally, the Plaintiffs ignore the Tippecanoe County Defendants’ clear
qualifier that it would comply with an order from the Court, but adhering to such an order would
not redress the injuries suffered because the actions would be ultra vires, and the resulting birth
certificates would be invalid and of questionable value.
Because the Plaintiffs’ injuries are not fairly traceable to the challenged action of the
County Defendants, and their injuries will not be redressed by a favorable decision against the

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County Defendants, the Plaintiffs lack standing to sue the Tippecanoe County Defendants, Marion
County Defendants, Bartholomew County Defendants, and Vigo County Defendants.
If a plaintiff lacks standing, the district court has no subject matter jurisdiction. See
Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (internal citation omitted). If the
court lacks jurisdiction over the subject matter, its only proper course is to note the absence of
jurisdiction and dismiss the case on that ground. Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 94 (1998). “A dismissal for lack of federal jurisdiction is without prejudice.” Bovee
v. Broom, 732 F.3d 743 (7th Cir. 2013); see also El v. AmeriCredit Fin. Servs., Inc., 710 F.3d 748,
751 (7th Cir. 2013) (“Dismissals because of absence of federal jurisdiction ordinarily are without
prejudice . . . ‘because . . . once a court determines it lacks jurisdiction over a claim, it perforce
lacks jurisdiction to make any determination of the merits of the underlying claim.’” (quoting
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1217 (10th Cir. 2006)).
For this reason, the Court GRANTS the Tippecanoe County Defendants’ Motion for
Summary Judgment, and the claims against each of the County Defendants are dismissed for lack
of subject matter jurisdiction.
B.

Equal Protection
The Fourteenth Amendment provides that “[n]o state shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” This Amendment provides protection against
discrimination on the basis of gender or sexual orientation. See Baskin v. Bogan, 766 F.3d 648
(7th Cir. 2014) (sexual orientation discrimination); Hayden v. Greensburg Cmty. Sch. Corp., 743
F.3d 569, 576–82 (7th Cir. 2014) (gender discrimination).
The Plaintiffs assert that Indiana’s refusal to grant the status of parenthood to female
spouses of artificially-inseminated birth mothers while granting the status of parenthood to male
16

spouses of artificially-inseminated birth mothers violates the Equal Protection Clause. The
Plaintiffs explain that Indiana is required to recognize same-sex marriage as determined by Baskin,
766 F.3d 648. And the benefits conferred upon opposite-sex married couples must be equally
conferred upon same-sex married couples. Baskin v. Bogan, 12 F. Supp. 3d 1144, 1165 (S.D. Ind.
2014). As the United States Supreme Court recently explained,
Indeed, while the States are in general free to vary the benefits they confer on all
married couples, they have throughout our history made marriage the basis for an
expanding list of governmental rights, benefits, and responsibilities. These aspects
of marital status include: adoption rights; . . . birth and death certificates; . . . and
child custody, support, and visitation rules.
Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (U.S. 2015).
Based on these recent developments in constitutional jurisprudence, the Plaintiffs ask the
Court for declaratory and injunctive relief, seeking to enjoin the Defendants from refusing to issue
birth certificates listing the non-birth mother same-sex spouses as parents on their respective
children’s birth certificates “and to otherwise accord them all rights accorded to parents identified
on a birth certificate.” They also ask that the Defendants be enjoined from declining to recognize
their children as being born in wedlock.
To make their case, the Plaintiffs provide the example of a man and a woman who are
married and who become pregnant through the aid of a third-party sperm donor. The married
woman then gives birth to a child who is not biologically related to her husband. Even though the
mother, the husband, the doctor, and possibly the hospital staff know that the man is not the
biological father of the child, the State of Indiana will presume parenthood of the child in the
husband. This same presumption of parenthood is not afforded to the female, same-sex spouse of
a birth mother who also becomes pregnant through the aid of a third-party sperm donor. The
Plaintiffs assert that the State Defendant’s refusal to apply the same presumption of parenthood to
17

the non-birth mother same-sex spouse as would apply to the husband of a birth mother who
conceives by artificial insemination violates the Equal Protection Clause of the Fourteenth
Amendment.
With respect to Indiana Code §§ 31-9-2-15 and -16, the Plaintiffs contend that these statutes
are unconstitutional on their face and as applied to the Plaintiffs because Indiana law says that a
child born to a husband and wife is a child born in wedlock, but because these birth mothers are
married to women, their children are labeled as children born out of wedlock, are not allowed to
carry their second parent’s surname, and suffer the stigma of illegitimacy. The State Defendant
responds that the purpose of these statutes is limited only for the purpose of determining who must
be notified and given an opportunity as a biological father to consent to an adoption procedure;
therefore, “[t]hese statutes do not disfavor anyone based on illegitimacy.” (Filing No. 85 at 13.)
The Plaintiffs contend, and the Court agrees, that the “Parenthood Statutes” (Indiana Code
§§ 31-9-2-15, 31-9-2-16, and 31-14-7-1) are reviewed under heightened “intermediate” scrutiny
because of the gender and sexual orientation classifications at issue. See Hayden, 743 F.3d at 577
(“Gender is a quasi-suspect class that triggers intermediate scrutiny in the equal protection context;
the justification for a gender-based classification thus must be exceedingly persuasive.”); Baskin,
766 F.3d at 671 (statutes that discriminate on the basis of sexual orientation are subject to
heightened intermediate scrutiny). A statute survives intermediate scrutiny if it “serves important
governmental objectives and that the discriminatory means employed are substantially related to
the achievement of those objectives.” Baskin, 766 F.3d at 656.
The purposes and objectives of Indiana’s Parenthood Statutes are codified at Indiana Code
§ 31-10-2-1, which declares,
It is the policy of this state and the purpose of this title to:
(1) recognize the importance of family and children in our society;
18

(2) recognize the responsibility of the state to enhance the viability of children and
family in our society;
(3) acknowledge the responsibility each person owes to the other;
(4) strengthen family life by assisting parents to fulfill their parental obligations….
Courts in Indiana have repeatedly focused on the State’s interest in protecting the best interests of
the child when making determinations in the family law context. See In re Adoption of K.S.P., 804
N.E.2d 1253, 1257 (Ind. Ct. App. 2004) (“. . . the guiding principle of statutes governing the parentchild relationship is the best interests of the child”).
The Plaintiffs argue that the challenged Parenthood Statutes do not serve these
governmental objectives. It is undisputed that the State of Indiana wants to serve the best interests
of children and to protect, promote, and preserve families. In light of the legal recognition of
same-sex marriage, the Plaintiffs argue that there is no governmental interest in denying the
presumption of parenthood to the same-sex spouse of a birth mother. Instead, applying the
Parenthood Statutes undermines and discourages families that are required by the Supreme Court’s
decision in Obergefell to be recognized and strengthened.
An example offered by the Plaintiffs of unequal treatment resulting from application of the
Parenthood Statutes is that the denial of a presumption of parenthood to same-sex spouses requires
them to go through the lengthy and costly adoption process to secure parental rights, which is not
required of similarly situated men married to birth mothers who conceive through artificial
insemination. Additionally, not permitting both same-sex spouses to be listed as parents on birth
certificates leaves children in a vulnerable position of having only one legal parent, which affects
many daily activities and choices available to children and parents. Denial of a presumption of
parenthood to the Plaintiffs does not serve the best interests of the Plaintiff Children or protect,
promote, and preserve their families and numerous other similar families in Indiana.

19

In response to the Plaintiffs’ equal protection arguments, the State Defendant explains that
it has an important governmental interest in preserving the rights of biological fathers and
recording and maintaining accurate records regarding the biological parentage of children born in
Indiana. The State Defendant asserts that the Parenthood Statutes substantially relate to the
achievement of these interests.
The State Defendant offers a litany of cases to support its position and argues that Indiana’s
long history of statutory and case law recognizes that an individual may become a parent only
through biology or adoption. However, all of those cases precede Baskin and Obergefell. The
State Defendant contends that there are only two ways by which a person becomes a parent in
Indiana; therefore, the Plaintiffs must utilize the adoption process to become parents because the
non-birth mother same-sex spouse cannot be biologically related to the child. Furthermore, the
Parenthood Statutes do not violate the Equal Protection Clause because the statutes apply equally
to all male and female spouses of birth mothers. The State Defendant argues that a husband who
is not the biological father of the child should not be listed on the birth certificate because the birth
mother should acknowledge that she is not married to the father of her child when she has been
artificially inseminated. In such a case, the husband would have to adopt the child to be listed on
the birth certificate and recognized as a parent.
Finally, the State Defendant asserts that the Parenthood Statutes do not apply at all to the
creation and issuance of birth certificates. Rather, the Parenthood Statutes only apply in the
adoption context. Therefore, challenging the Parenthood Statutes will not provide the relief that
the Plaintiffs seek.
The Court first notes that when determining the appropriateness of summary judgment, it
draws reasonable inferences in the non-moving party’s favor, Zerante, 555 F.3d at 584, and when
20

doing so, the Court need not set aside common sense and logic. News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 580 n.7 (4th Cir. 2010). Moreover, the State
Defendant has presented no evidence or affidavit to support its theory that a heterosexual couple
who has conceived by artificial insemination would interpret the Indiana Birth Worksheet in the
manner is explains.
The State Defendant’s response does not account for or address the realities of the example
provided by the Plaintiffs. A man and a woman are married, and the woman conceives through
the aid of a third-party sperm donor. The child is not biologically related to the birth mother’s
husband. In completing the Indiana Birth Worksheet, the birth mother declares that she is married
to the father of her child. The State of Indiana will presume parenthood of the child in the husband,
and the husband is listed on the child’s birth certificate despite the lack of biological or adoptive
connection. This same presumption of parenthood is not afforded to the female, same-sex spouse
of a birth mother who conceived through the aid of a third-party sperm donor. Thus, a husband
who is not biologically related to the child born to his wife does not have to adopt the child to
enjoy the status of a parent. In contrast, a female, same-sex spouse always has to adopt to enjoy
the status of a parent.
The State Defendant’s argument that the birth mother should acknowledge that she is not
married to the father of her child when she has been artificially inseminated or else she is
committing fraud is not consistent with the Indiana Birth Worksheet, Indiana law, or common
sense.
The Indiana Birth Worksheet asks, “are you married to the father of your child,” yet it does
not define “father.” This term can mean different things to different women. Common sense says
that an artificially-inseminated woman married to a man who has joined in the decision for this
21

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? The Indiana Birth
Worksheet does not define “father,” it does not state that the father must be the biological father
of the child, and it does not indicate that it is completed under penalties of perjury. There is no
warning of fraud or criminal liability. The State Defendant points to Indiana Code § 16-37-1-12
to argue that an artificially-inseminated birth mother would be committing fraud if she were to
falsify statements on the Indiana Birth Worksheet. However, the Indiana Birth Worksheet does
not refer to Indiana Code § 16-37-1-12, and this code provision does not relate to when an
individual provides information that leads to the creation of the birth certificate. Rather, this
section relates to when an individual, with intent to defraud, applies to receive a certified copy of
a birth certificate.
Next, the State Defendant’s argument that the Parenthood Statutes do not apply at all to the
creation and issuance of birth certificates highlights the void that Indiana’s statutory framework
has created that leads to the State’s discriminatory conduct when completing the Indiana Birth
Worksheet and creating and issuing birth certificates. The Indiana Birth Worksheet was created
by ISDH as part of the Indiana Birth Registration System. The Indiana Birth Worksheet asks birth
mothers if they are married and then asks, “are you married to the father of your child.” As the
husband is presumed to be the biological father of the birth mother’s child, the birth mother can
affirmatively answer the question, and the husband will be listed on the birth certificate as the
father of the child, even if he is not the actual biological father of the child. No such presumption,
or question on the Indiana Birth Worksheet, exists for a non-birth mother same-sex spouse.
Some states have attempted to legislatively fill the statutory void similar to Indiana’s
statutory shortcoming. As an example, Wisconsin has a more comprehensive statutory scheme to
22

address parentage, artificial insemination, and birth certificates. See Wis. Stat. §§ 69.14, 891.40,
891.41. These statutes dictate a presumption of paternity, parentage following artificial
insemination, and the contents of birth certificates. However, even with the additional statutory
protections and guidance, a similar challenge to Wisconsin’s statutes is pending in Torres v.
Rhoades, No. 15-cv-288-bbc (W.D. Wis.), because these statutes allegedly do not provide for equal
protection to same-sex married couples. It is the lack of clarity and comprehensiveness in
Indiana’s statutory framework that has led to the State’s discriminatory treatment of same-sex
married couples when completing the Indiana Birth Worksheet and creating and issuing birth
certificates.
Concerning the State’s important governmental interests, the State Defendant points to its
interests in preserving the rights of biological fathers and recording and maintaining accurate
records regarding the biological parentage of children. The State Defendant asserts that the
Parenthood Statutes substantially relate to the achievement of these interests. The State Defendant
further claims that these interests are compelling, and the Parenthood Statutes are narrowly tailored
to meet these interests.
The Court is not convinced that the challenged Parenthood Statutes are substantially related
or narrowly tailored to meet the stated interests of preserving the rights of biological fathers and
maintaining accurate records of biological parentage. Importantly, the legitimacy statutes do not
refer to biology when they define the terms “child born in wedlock” and “child born out of
wedlock.”
In the example provided by the Plaintiffs, the biological father will not be listed on the birth
certificate because he is simply a third-party sperm donor. His paternal rights will not be preserved
or recognized. Rather, the birth mother’s husband will be listed on the birth certificate, and he will
23

enjoy the status of a parent. In fact, it will be incorrectly recorded in the State’s vital statistics
records and incorrectly presumed that the husband is the biological father of the child when he
actually has no biological connection to the child.
During oral argument, the State Defendant asserted that the birth mother should not name
her husband as the father of the child when a third-party sperm donor is involved. However, as
noted above, common sense says that she will name her husband as the father. Whether she names
her husband as the father or states that she is not married to the father, the biological father’s
parental rights are not preserved and accurate records of biological parentage are not maintained.
If the mother names her husband, the third-party sperm donor who is the biological father is not
listed on the birth certificate. If the mother says she is not married to the father, the third-party
sperm donor who is the biological father still is not listed on the birth certificate. In either event,
the State’s interests in preserving the rights of biological fathers and maintaining accurate records
of biological parentage are not served.
Regarding the Supreme Court’s decision in Obergefell, the State Defendant asserts that
Obergefell actually decoupled marriage from parenthood because the right to marry cannot be
conditioned on the capacity or commitment to procreate. It argues that, at most, the Obergefell
decision stands for the proposition that any benefit of marriage must now be extended to same-sex
married couples on an equal basis with opposite-sex married couples. But this is exactly what the
Plaintiffs seek—the extension of a benefit of marriage on an equal basis.
When the State Defendant created and utilized the Indiana Birth Worksheet, which asks
“are you married to the father of your child,” the State created a benefit for married women based
on their marriage to a man, which allows them to name their husband on their child’s birth
certificate even when the husband is not the biological father. Because of Baskin and Obergefell,
24

this benefit—which is directly tied to marriage—must now be afforded to women married to
women.
During oral argument, the Plaintiffs made this very point: The State has granted mothers
the power to enter a legal fiction because the mother who conceived her child with the aid of a
third-party sperm donor is allowed to claim that her husband is the father of her child. But birth
mothers with same-sex spouses are not allowed to enter into the same legal fiction. That husband
has no more relationship to the child than the same-sex spouse, yet the same-sex spouse cannot be
listed as a parent on the birth certificate while the man can be listed simply because the birth mother
says he is married to her.
Indiana’s statutory scheme leads to unequal treatment of same-sex married women who
bring children into their families with the assistance of third-party sperm donors. This unequal
treatment is based on the individual’s gender and sexual orientation. The Parenthood Statutes and
the State of Indiana’s implementation of the statutes are not substantially related to, and do not
accomplish, the State Defendant’s claimed governmental objectives. For these reasons, the Court
determines that Indiana Code §§ 31-9-2-15, 31-9-2-16, and 31-14-7-1 violate the Equal Protection
Clause of the Fourteenth Amendment.
C.

Due Process
The Plaintiffs also challenge the Parenthood Statutes under the Due Process Clause of the

Fourteenth Amendment, which provides that “[n]o state shall . . . deprive any person of life, liberty,
or property, without due process of law.”
The fundamental liberties protected by this Clause include most of the rights
enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147-149,
88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). In addition these liberties extend to certain
personal choices central to individual dignity and autonomy, including intimate
choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405
25

U.S. 438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Griswold v. Connecticut,
381 U.S. 479, 484-486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
Obergefell, 135 S. Ct. at 2597–98. “Without doubt, it denotes not merely freedom from bodily
restraint but also the right of the individual . . . to marry, establish a home and bring up children.”
Meyer v. Nebraska, 262 U.S. 390, 399 (1923). “[F]reedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process Clause of the
Fourteenth Amendment.” Moore v. East Cleveland, 431 U.S. 494, 499 (1977).
The Plaintiffs assert their Due Process claim is reviewed under strict scrutiny because it
involves a fundamental right. Fundamental rights, although generally limited, have long been
deemed to include “matters relating to marriage, family, procreation, and the right to bodily
integrity,” Albright v. Oliver, 510 U.S. 266, 272 (1994), and what has been described as “perhaps
the oldest of the fundamental liberty interests recognized,” a parent’s liberty interest in the “care,
custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Under strict
scrutiny, “when a statutory classification significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently important state interests and is
closely tailored to effectuate only those interests.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
The Plaintiffs reassert their equal protection argument to explain that the State Defendant does not
have a compelling governmental interest, and the Parenthood Statutes are not narrowly tailored to
serve any compelling State interests, when it denies the presumption of parenthood to the
Plaintiffs.
The State Defendant responds that the Constitution provides protection to fundamental
rights of parents to direct the upbringing, education, and support of their children. However, there
is no fundamental right to be a parent.

Rather, in this context, constitutionally protected

fundamental rights exist only after an individual has become a parent. Contrary to the Plaintiffs’
26

assertion, the State Defendant argues that the rational basis standard applies, not strict scrutiny.
The State Defendant then explains that, under any level of constitutional review, the Parenthood
Statutes satisfy constitutional standards. It asserts that Indiana has a compelling interest in
protecting the parental rights of biological parents and maintaining accurate records of biological
parentage, and the Parenthood Statutes are narrowly tailored to serve these interests.
The Supreme Court long ago recognized a fundamental liberty interest “to marry, establish
a home and bring up children,” Meyer, 262 U.S. at 399, with the “freedom of personal choice in
matters of marriage and family life.” Moore, 431 U.S. at 499. “[O]ur laws and tradition afford
constitutional protection to personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education.” Lawrence v. Texas, 539 U.S. 558, 574 (2003).
At least one court has interpreted the Supreme Court’s decision in Troxel v. Granville to mean that
there is an established fundamental liberty interest in being a parent. State v. Renfro, 40 Kan. App.
2d 447, 451 (Kan. Ct. App. 2008) (“the right to be a parent is a fundamental right recognized as a
liberty interest to be protected by the Due Process Clause”).
The Parenthood Statutes and the State Defendant’s implementation of the statutes through
the Indiana Birth Worksheet significantly interferes with the Plaintiffs’ exercise of the right to be
a parent by denying them any opportunity for a presumption of parenthood which is offered to
heterosexual couples. What Plaintiffs seek is for their families to be respected in their dignity and
treated with consideration. During its discussion above concerning Equal Protection, the Court
rejected as unpersuasive the State Defendant’s argument that it has compelling interests that are
served by the narrowly tailored Parenthood Statutes. The Court will not repeat that analysis and
discussion here. As previously stated, the Parenthood Statutes are not narrowly tailored to meet a
compelling governmental interest. By refusing to grant the presumption of parenthood to same27

sex married women, the State Defendant violates the Plaintiffs’ fundamental right to parenthood
under the Due Process Clause.
D.

Injunctive Relief
The Plaintiffs request that the Court permanently enjoin Defendants from enforcing Indiana

Code § 31-14-7-1 in a way that differentiates between male and female spouses of women who
give birth with the aid of artificial insemination by a third-party. Additionally, the Plaintiffs
request that the children born of their same-sex unions be accorded the same equal protections of
children born to a man and a woman using artificial insemination; therefore, the children should
not be considered children born out of wedlock under Indiana Code §§ 31-9-2-15 and -16.
Where a permanent injunction has been requested at summary judgment,
we must determine whether the plaintiff has shown: (1) success, as opposed to a
likelihood of success, on the merits; (2) irreparable harm; (3) that the benefits of
granting the injunction outweigh the injury to the defendant; and, (4) that the public
interest will not be harmed by the relief requested.

Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003). As discussed above, the Plaintiffs have
been successful on the merits of their case under the Equal Protection and Due Process Clauses of
the Fourteenth Amendment.
Irreparable harm is presumed for some kinds of constitutional violations. See 11A Charles
Alan Wright et al., Federal Practice & Procedure § 2948.1 (2d ed. 1995) (“When an alleged
deprivation of a constitutional right is involved, most courts hold that no further showing of
irreparable injury is necessary.”). This has been true in the context of violations of the First and
Second Amendments. See Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006)
(irreparable harm is presumed in First Amendment violation); Ezell v. City of Chicago, 651 F.3d
684, 699 (7th Cir. 2011) (irreparable harm is presumed in Second Amendment violation). The
Equal Protection and Due Process Clauses of the Fourteenth Amendment similarly protect
28

intangible and unquantifiable interests. Infringement of these rights cannot be compensated by a
damages award; thus, irreparable harm exists.
No injuries to the State Defendant have been shown that would result from the issuance of
injunctive relief which would outweigh the benefits of the injunctive relief. The State Defendant
argues that if Plaintiffs wish to create a third path to legal parenthood, whether through marriage
or any other means, they should seek relief from the General Assembly—not this Court. The
Supreme Court in Obergefell recognized that the initial inclination might be to await further
legislation, litigation, and debate; however, Obergefell noted that the Plaintiffs’ stories show the
urgency of the issues they present before the Court. This Court is hard-pressed to imagine an
injury to the State Defendant if it is ordered to apply the Parenthood Statutes in a nondiscriminatory way. In contrast, the injury to these Plaintiffs is unfeigned. The public interest in
serving the best interests of the child will not be harmed by injunctive relief but actually will be
furthered by legally recognizing two parents for children and providing stability for children and
families. Therefore, injunctive relief is an appropriate remedy.
IV.

CONCLUSION

Given Indiana’s long-articulated interest in doing what is in the best interest of the child
and given that the Indiana legislature has stated the purpose of Title 31 is to protect, promote, and
preserve Indiana families, there is no conceivable important governmental interest that would
justify the different treatment of female spouses of artificially-inseminated birth mothers from the
male spouses of artificially-inseminated birth mothers. As other district courts have noted, the
holding of Obergefell will inevitably require “sweeping change” by extending to same-sex married
couples all benefits afforded to opposite-sex married couples. Campaign for Southern Equality v.
Miss. Dep’t of Human Servs., 2016 U.S. Dist. LEXIS 43897, at *35 (S.D. Miss. Mar. 31, 2016).
29

Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this
action.
For the reasons stated herein, the Court GRANTS the Tippecanoe County Defendants’
Motion for Summary Judgment (Filing No. 82), and claims against each of the County Defendants
are dismissed for lack of jurisdiction. The Court GRANTS the Plaintiffs’ Motion for Summary
Judgment against the State Defendant (Filing No. 77), and DENIES the State Defendant’s Motion
for Summary Judgment (Filing No. 84).
For the reasons set forth above, the Court DECLARES that Indiana Code §§ 31-9-2-15,
31-9-2-16, and 31-14-7-1 violate the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
The State Defendant and its officers, agents, servants, employees, and attorneys, and those
acting in concert with them, including political subdivisions of the State of Indiana, are
ENJOINED 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.
The State Defendant and its officers, agents, servants, employees, and attorneys, and those
acting in concert with them, including political subdivisions of the State of Indiana, are
ENJOINED to recognize children born to a birth mother who is legally married to a same-sex
spouse as a child born in wedlock.
The State Defendant and its officers, agents, servants, employees, and attorneys, and those
acting in concert with them, including political subdivisions of the State of Indiana, are
ENJOINED to recognize the Plaintiff Children in this matter as a child born in wedlock.

30

The State Defendant and its officers, agents, servants, employees, and attorneys, and those
acting in concert with them, including political subdivisions of the State of Indiana, are
ENJOINED to recognize the Plaintiff Spouses in this matter as a parent to their respective Plaintiff
Child and to identify both Plaintiff Spouses as parents on their respective Plaintiff Child’s birth
certificate.
Final judgment will issue under separate order. A separate Permanent Injunction will also
be issued as required by Rule 65(d) of the Federal Rules of Civil Procedure.
The Plaintiffs who have prevailed in securing relief are entitled to recover their costs.
The Plaintiffs have requested an award of costs and attorneys’ fees under 42 U.S.C. § 1988.
The Plaintiffs are ordered to file a bill of costs and a petition for attorneys’ fees within thirty (30)
days of the date of this Order. A Response may be filed within fourteen (14) days of such a
submission. The Plaintiffs may file a Reply within seven (7) days of such Response.

SO ORDERED.
Date: 6/30/2016

31

DISTRIBUTION:
Karen Celestino-Horseman
AUSTIN & JONES, PC
[e-mail]

Lara K. Langeneckert
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Richard A. Mann
RICHARD A. MANN, PC
[e-mail]

Thomas M. Fisher
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Megan L. Gehring
RICHARD A. MANN, PC
[e-mail]

Nikki G. Ashmore
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Raymond L. Faust
SKILES DETRUDE
[e-mail]

Betsy M. Isenberg
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

William R. Groth
FILLENWARTH DENNERLINE GROTH &
TOWE LLP
[e-mail]

Anna M. Konradi
FAEGRE BAKER DANIELS LLP
[e-mail]

Douglas Joseph Masson
HOFFMAN LUHMAN & MASSON PC
[e-mail]

Anne Kramer Ricchiuto
FAEGRE BAKER DANIELS LLP
[e-mail]

J. Grant Tucker
JONES PATTERSON BOLL & TUCKER
[e-mail]

Anthony Scott Chinn
FAEGRE BAKER DANIELS LLP
[e-mail]

Michael James Wright
WRIGHT SHAGLEY & LOWERY, PC
[e-mail]

32