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Ropes & Gray Successfully Urges U.S. Supreme Court to Leave in Place Seventh Circuit Decision Requiring Equal Treatment of Same-Sex and Opposite-Sex Spouses

Practices: Appellate & Supreme Court Tags: Pro Bono

At the urging of Ropes & Gray, the U.S. Supreme Court declined to review a ruling of the Seventh Circuit Court of Appeals requiring Indiana to list both spouses in a same-sex married couple on the birth certificate of a child born to either spouse on the same basis as an opposite-sex couple. Ropes & Gray, along with the National Center for Lesbian Rights and local counsel, represented respondents in opposing the request for certiorari in the case, Box v. Henderson. Ropes & Gray has helped achieve a series of victories in striking down statutes and policies that discriminate against same-sex couples, including the Supreme Court’s 2017 decision in Pavan v. Smith and its 2018 denial of certiorari in McLaughlin v. McLaughlin. 

In the underlying decision, the Seventh Circuit considered an Indiana policy which presumptively included the male spouse of a woman who gives birth on the child’s birth certificate but refused to include the female spouse of a woman who gives birth on the birth certificate absent adoption. Consequently, same-sex married couples and their children were denied benefits on an equal basis as opposite-sex spouses and their children, which as the Seventh Circuit held, is unconstitutional under Obergefell and Pavan

In requesting a grant of certiorari, the State argued that its birth certificate regime is distinguishable from Obergefell and Pavan because it only listed a child’s biological parents on the birth certificate and had not created a marital benefit for opposite-sex couples. In opposing the State’s petition, Ropes & Gray argued that, in reality, Indiana law permits the male spouse of a woman who gives birth to be listed on the child’s birth certificate regardless of whether the man was the child’s biological parent, and, as a result, Indiana was required to afford the same treatment to the female spouse of a woman who gives birth. 

Appellate & Supreme Court partner Douglas Hallward-Driemeier led the Ropes & Gray team, which also included litigation & enforcement associates Joshua Goldstein, Daniel Yanofsky, and Luke Riley, and legal services manager Sophia Antzoulatos.

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