Suit Challenges Nebraska's Refusal to Recognize Same-Sex Parents

Two Omaha women are suing the state of Nebraska over its refusal to list both of them as parents on their children's birth certificate -- an action the U.S. Supreme Court has already ruled unconstitutional when applied to married same-sex couples.

Erin Porterfield and Kristin Williams were not married but were once a couple, and even after their separation, both remain deeply involved in the parenting of their children, according to a press release from the American Civil Liberties Union of Nebraska, which is representing them along with the law firm of Koenig | Dunn. The suit was filed Monday in a court in Lancaster County, Neb., where the state capital, Lincoln, is located.

The women started their family before same-sex couples could marry legally in Nebraska. Porterfield gave birth to a son, Kadin, in 2002, and Williams gave birth to another son, C.W., in 2005. They used assisted reproductive technology and the same sperm donor.

After the women separated in 2013, they worked on plans to assure that both were legally recognized as their sons' parents. In 2017, a court in Douglas County, Neb., ruled that both were legally responsible for parental duties and approved their parenting plan and child support obligations. The court also ordered the addition of the non-birth parent to each son's birth certificate.

In 2018, Porterfield applied to the Nebraska Department of Health Human Services for an amended birth certificate for Kadin, listing Williams as a legal parent. The department denied her request. This year, the women submitted notarized documents voluntarily acknowledging their parentage, but last week the department said those did not qualify them for legal recognition, even though it accepts such documents for opposite-sex parents whether or not the person listed as a father has a biological relationship to the child.

The state is violating the U.S. Constitution's guarantees of equal protection and due process by refusing to follow state law for same-sex parents on the same terms as it does for unmarried opposite-sex parents, the lawsuit argues. Also, it is discriminating on the basis of sex by accepting voluntary acknowledgments from men but not women.

The Supreme Court ruled in Pavan v. Smith in 2017 that the state of Arkansas acted unconstitutionally when it wouldn't list both members of a same-sex couple on the birth certificates for their children. The state routinely listed both partners in opposite-sex couples without demanding that both have a biological relationship to a child.

"As this Court explained in Obergefell v. Hodges, the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples,'" including birth certificates, the Supreme Court ruling stated, referencing the 2015 marriage equality decision. The court has declined to hear similar cases from Arizona and Indiana, therefore letting lower court decisions in favor of the parents stand.

The Pavan ruling addressed only married couples, but Nebraska is still committing unconstitutional discrimination by treating unmarried same-sex couples differently than opposite-sex ones and by treating male parents differently than female ones, the suit argues.

"This civil rights case is about equal treatment for families with same-sex parents," Sara Rips, legal and policy director for the ACLU of Nebraska, said in the press release. "Erin and Kristin made the choice together to start and raise a family. They have both been loving and involved moms to these boys since birth. I know that if one of them were a man, the department would have accepted their acknowledgment without any thought or inquiry. Instead, these women are facing discriminatory treatment that's clearly unconstitutional. Once again, LGBTQ Nebraskans must appeal to the courts to affirm that they are entitled to the same treatment as anyone else."