Constitutional Rights, Same-Sex Parents, and Ohio’s Artificial Insemination Law
Our firm is currently representing a woman in a landmark case before the Supreme Court of Ohio that sits at the intersection of LGBTQ+ rights, parental rights, and constitutional law. The case asks whether Ohio must recognize the parental rights of same-sex partners who would have married before having children together, but couldn’t because of Ohio’s former unconstitutional ban on same-sex marriage.
The Background:
In the early 2000s, our client proposed to her then-partner with a diamond ring. The couple couldn’t legally marry in Ohio – in fact, any officiant who tried to marry them would have faced criminal charges. They even traveled to Massachusetts hoping to marry there, but learned that Ohio wouldn’t recognize an out-of-state marriage either.
The couple went on to have three children together through artificial insemination. They chose a sperm donor who matched our client’s ethnicity, both women wore “Mommy-to-Be” sashes at their baby shower, and they gave the children hyphenated last names combining both mothers’ surnames. They raised the children together until their relationship ended.
The Legal Issue:
Under Ohio law, when a married woman conceives through artificial insemination, her spouse automatically becomes the legal parent of any resulting children. But because same-sex couples couldn’t marry in Ohio before 2015, they couldn’t benefit from this law – even if they wanted to marry. This creates an Equal Protection problem for same-sex couples who had children through artificial insemination prior to 2015.
Our Position:
In Obergefell v. Hodges (2015), the Supreme Court held that same-sex couples have a fundamental right to marry. The Court explained that states must provide same-sex couples all the “constellation of benefits” linked to marriage, including parental rights.
We argue that Ohio’s artificial insemination statute is unconstitutionally underinclusive because it fails to protect same-sex couples who would have married but couldn’t due to Ohio’s former ban. When a statute unconstitutionally excludes a group, courts can either strike it down entirely or extend its protections to the excluded group. We’re asking the Court to extend the statute’s protections to couples who can prove they would have married but for Ohio’s unconstitutional ban.
The Opposition:
The biological mother argues that courts can’t “rewrite history” by recognizing marriages that never happened. She claims that because the couple never married – even though they legally couldn’t – our client has no parental rights.
The Bigger Picture:
This case is about more than just one family. It’s about whether Ohio will allow its past discrimination against same-sex couples to continue harming families today. When Ohio banned same-sex marriage, it didn’t just deny couples the right to marry – it denied their children the security of having two legal parents. The question now is whether Ohio will remedy that constitutional violation or let it perpetuate into another generation.
The First District Court of Appeals in Hamilton County ruled in our client’s favor, but the case has now gone up one more level. The Supreme Court of Ohio’s decision will set an important precedent for how courts address the ongoing effects of past discrimination against same-sex couples and their families.
Broad Support for Same-Sex Constitutional Rights
Our client’s position was bolstered by briefs filed by the National Association of Social Workers, the ACLU, and the Jones Center. The case has also been heavily publicized, including articles or blurbs in:
Alliance For Justice Association