COLUMBUS (LN) — The Ohio Supreme Court on Monday reversed a lower appellate ruling that would have let trial courts retroactively grant parentage rights to an unmarried same-sex partner by asking whether the couple "would have been married" but for Ohio's now-defunct ban on same-sex marriage, holding that neither Obergefell v. Hodges nor Pavan v. Smith gives courts license to rewrite a statute that applies only to married couples.
The case arose from the breakup of P.S. and C.E., two women who were together for roughly a decade beginning in 2003, during which P.S. gave birth to three children through artificial insemination. The couple separated in January 2015, shortly before the U.S. Supreme Court's decision in Obergefell, and never married despite, according to C.E., exchanging silver and gold bracelets to symbolize an engagement.
After the split, C.E. sought legal recognition as a parent of all three children. Ohio's non-spousal artificial insemination statute, R.C. 3111.95(A), provides that if "a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination." The First District Court of Appeals concluded that Obergefell and Pavan required the statute to be applied gender-neutrally and retroactively to C.E. if a trial court found the couple "would have been married" had Ohio permitted same-sex marriage at the time of the inseminations.
Justice DeWine, writing for six justices, rejected that framework outright. "By its plain terms, the statute does not apply to P.S. and C.E.," the majority held, noting that the couple was undisputedly unmarried at the time of both inseminations and that courts have authority to depart from a statute's plain text only when there is "clear incompatibility between the constitution and the law."
The majority acknowledged that Pavan likely means a married same-sex spouse could invoke the statute even though its text refers only to a "husband," but drew a firm line there. "Nothing in Pavan or Obergefell suggests that the statute should be rewritten to apply to unmarried couples," the majority held. "Obergefell and Pavan do not compel courts to create an extra-legislative pathway for same-sex couples to access marital privileges when the couple was never married."
The court also held that the "would have been married" inquiry was unworkable on practical grounds, describing it as setting trial courts on an "impossible mission" to retroactively determine whether a different reality would have produced different events. The majority pointed to the factual dispute already embedded in this case as proof: C.E. claimed she proposed to P.S., that the two had a civil commitment ceremony, and that they traveled to Boston to get married before abandoning those plans upon learning Ohio would not recognize an out-of-state same-sex marriage, while P.S. denied any such ceremony occurred and said she never intended to marry C.E. at all.
The majority further held that the First District's test would effectively resurrect Ohio's common-law marriage doctrine, which the General Assembly abolished in 1991. The evidence needed to satisfy the "would have been married" inquiry — cohabitation, engagement, commitment ceremonies, shared-custody agreements — is "virtually indistinguishable from what was required to establish a common-law marriage," the majority held, and it is not within the First District's power to judicially revive what the legislature expressly prohibited.
Justice Brunner concurred in the judgment only, arguing the majority should have reversed on the narrower ground that the First District never should have reached the R.C. 3111.95(A) argument at all, since C.E. raised it for the first time on appeal and never presented it to the juvenile court. Brunner noted that the juvenile court itself had acknowledged the "disconnect between the laws of this state and the precedent set by the highest courts," including the failure to "make appropriate accommodations for same-sex couples in line with the case law regarding family formation," but concluded that the remedy C.E. sought was never properly developed below.
The case now returns to the First District to address the remaining assignments of error — including P.S.'s challenge to the shared-custody arrangement for the twins and her request to terminate the older child's custody agreement — that the appellate court left unresolved when it remanded on the parentage question.
The ACLU of Ohio Foundation, the National Association of Social Workers including its Ohio Chapter, and the Nathaniel R. Jones Center for Race, Gender, and Social Justice had filed briefs urging affirmance of the First District's ruling.