I've written extensively about the Gartner case, in which Lambda Legal represented a married lesbian couple challenging the refusal of the Iowa Department of Health to place the name of the nonbiological mother, Melissa Gartner, on the child's birth certificate. Today the Iowa Supreme Court ruled that the Department was wrong. Mackenzie Gartner gets a birth certificate naming both her moms. This is good news.
So why am I not celebrating? In other posts I have criticized this litigation because it helps only children whose moms are married. I stand by that criticism. The court's opinion makes me more concerned than ever. The court says "we recognize the strong stigma accompanying illegitimacy." Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate? Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.
But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption. Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways. Here is just one example. Every state has a statute that paternity judgments must be given Full Faith and Credit by other states. Every state. Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers. The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers. That is the wrong result, and it will hurt many, many of our families.
In this part of the opinion the court also showed that it does not understand parentage law across the country. In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong. Here are the two most egregious mistakes. The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological. And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.
I actually feel great outrage at this footnote. It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child. Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.
So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate. It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child." The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way. As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.
There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate). Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions. But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status. Many states have done this, including states without same-sex marriage. I have written about them in these posts over the years, so I won't try to summarize here. But that's what our families need and deserve.