Inside The Box (v. Henderson)

The Supreme Court denied certiorari in the Seventh Circuit case of Box v. Henderson, without opinion or dissent. The case involved a remarkably pointless effort by Indiana to make life more difficult and miserable for married lesbian couples with a child.

Indiana Attorney General Curtis Hill(R) took the position in Box v. Henderson that same-sex spouses should not have the same rights to be listed on state-issued birth certificates as opposite-sex spouses. The case arose as the result of several lesbian couples who conceived via artificial insemination; Indiana refused to list birth mothers’ wives on their children’s official birth certificates, but regularly listed birth mothers’ husbands on birth certificates without additional requirement.

The same issue had been raised in response to Arkansas’ identical practice in Pavan v. Smith—a 2017 Supreme Court case in which the Court also sided with the same-sex parents. A few months after Pavan, a three-judge panel of the Seventh Circuit heard oral arguments in Box v. Henderson. However, the Seventh Circuit waited nearly three years–in time for SCOTUS to include two Trump-appointees—before handing down a unanimous ruling in favor of the same-sex parents in Box v. Henderson.

By the time Indiana appealed its loss at the Seventh Circuit, SCOTUS would include Justice Amy Coney Barrett, and many court-watchers wondered whether the change to the bench would result in the Court’s eroding its landmark decision in  Obergefell v. Hodges to allow the discrimination Indiana sought to conduct.

It was a dumb case, and dumber still to pursue by Indiana in light of the Pavan decision and, well, the factual reality that there are millions of married gay couples and they’re not going away. The battle is over. Love won. Get over it. And frankly, who cares? If you’re not gay, don’t marry someone with the same genitalia, but if someone else is, what business is it of yours? But I digress.

The big question in the minds of the unduly passionate was whether the appointment of Justice Barrett to the Supreme Court, the putative conservative majority, now with its very own Handmaiden, would so alter the dynamic as to reverse precedent, wreak havoc with social reliance on the Court’s rulings and send us down the path to Gilead.

We got an answer. The Supreme Court stayed inside the box.

Did this put an end to the hysteria of the left, that the nominations of three justices by Trump to sit at the lunch table of Clarence Thomas and Sam Alito, would destroy everything?

Monday’s decision can be read two different ways. First, it might indicate that the conservative bloc has little appetite to take aim at Obergefell. Justices Samuel Alito and Clarence Thomas recently expressed their disdain for that decision, suggesting that it should be circumscribed or overturned. Notably, though, no other conservative joined their call to arms. These justices are clearly interested in authorizing discrimination against LGBTQ people in the name of religious liberty.

“Clearly,” as in it’s clear, there’s no doubt and don’t be misled by decisions that are good because they’re just a head fake for what they’re “clearly interested” in doing. If that’s “clearly” what SCOTUS is doing, then what it “clearly” isn’t doing is trying to find the right balance between the enumerated First Amendment right to free exercise of religion and the Fourteenth Amendment Equal Protection penumbra of not discriminating on the basis of sexual orientation.

Or perhaps Box v. Henderson was simply the wrong vehicle. There is a second reason the Supreme Court might have rejected the case. As a rule, SCOTUS decides questions of federal law, not state law. Indiana courts have already held that, under state law, same-sex spouses “who knowingly and voluntarily consent to artificial insemination are the legal parents of the resulting child.” The attorney general insisted that Indiana only recognizes “biological parentage,” but his position appears to be a misrepresentation of the law. There is a possibility that the Supreme Court did not want to get bogged down in a dispute over state law and turned away the case because it did not cleanly present a constitutional question.

It’s not that this point is so lacking in legal validity that it’s wrong, but why raise it? The denial of cert was not merely the right answer, but the answer that those for whom discrimination on the basis of sexual orientation wanted. We won! Yay! Take the win, and don’t look for the cloud in front of the silver lining, especially when the cloud only exists because you insist on believing that they “clearly” want to do the opposite, to rule the wrong way, to do evil.

In truth, we do not yet know what this Supreme Court is capable of. That uncertainty makes it difficult to draw any firm conclusions from Monday’s order. Other conservative politicians will continue to test the waters by asking SCOTUS to restore state discrimination against same-sex couples. Just as Republicans have tested the limits of Roe v. Wade over the years by passing ever more stringent restrictions on abortion, they may test the limits of Obergefell by eroding the legal benefits provided to gay people. The court’s silence on marriage equality is not conclusive evidence that same-sex couples’ rights are safe. A future case—one that lacks a messy question of state law and requests a less blatantly inhumane outcome—could still command the court’s attention.

So what if the Supreme Court keeps ruling the right way, the way we want it to rule, the way we hope it will rule. He’s right, “[i]n truth, we do not yet know what this Supreme Court is capable of.” The Supreme Court is capable of deciding cases that will maintain the rights protected by Roe v. Wade, Obergefell and whatever other fears permeate the fertile imagination of those who “clearly” see the conservative wing of the Supreme Court as the determined to reverse the rights they hold dear.

“In truth,” we can only await the Court’s decisions on these issues to know what the Supreme Court is capable of. So far, they’re not doing a terrible job of it. Maybe, just maybe, “in truth,” they’ll “clearly” do what one would hope that the Supreme Court will do and rule based on sound constitutional principles. There’s certainly a good chance that every opinion won’t be as accommodating to gay rights as Box v. Henderson, and when it does, it will “clearly” prove that they were just waiting for the right case to be the horrible Court predicted. What it won’t prove, “in truth,” is that there are any legitimate considerations that might result in a decision with which some disagree.