Polk County District Court Judge Robert Hutchison has ordered the Iowa Department of Public Health to list both parents on a child’s death certificate, regardless of the parents’ gender, and to modify the death certificate issued to two married mothers who sued the department earlier this year.  

Jennifer and Jessica Buntemeyer were married in Iowa in 2010. Their baby Brayden was stillborn in 2011. The Iowa Department of Public Health issued a death certificate listing only Jessica Buntemeyer, who was the birthing mother, and omitting Jennifer’s name. Other states that recognize same-sex marriages or civil unions respect the “spousal assumption” in children’s birth and death certificates. Yet for some reason, the Iowa DPH has taken the position that it is more accurate to omit the name of the non-birthing same-sex spouse.

Judge Hutchison rejected the department’s reasoning in a December 12 decision you can download here (20-page pdf). His ruling relied heavily on the Iowa Supreme Court’s 2009 Varnum v Brien decision on marriage. Excerpts from the decision in the Buntemeyers’ case:

In applying equal protection, courts provide deference according to the appropriate level of judicial scrutiny. Id. [Varnum v Brien] at 879. An undefined level of heightened scrutiny applies to claims of discrimination based on sexual orientation or gender, as the Varnum Court was not required to determine that issue. Id. at 896. Since DPH cannot justify its policy under any level of heightened scrutiny, the Court applies mere intermediate scrutiny.

To survive intermediate scrutiny, an agency’s action “must be substantially related to an important governmental objective.” Id. (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). DPH argues its policy of refusing to register a mother’s wife on a Certificate is substantially related to three important interests.

First, DPH claims its policy promotes accuracy on a Certificate. The registration and maintenance of accurate and complete vital records is an important governmental interest. See IOWA CODE § 144.5(4) (ordering the registrar “to accomplish complete, accurate reporting”). DPH argues registering a woman as a “father” would harm the accuracy of a Certificate. However, the Buntemeyers merely seek registration of a mother’s wife as a gender-neutral parent on a Certificate. See Varnum, 763 N.W.2d at 899-901 (stating same-sex couples can be parents). DPH does not and cannot explain how omitting one parent on a Certificate improves accuracy. Instead, DPH could achieve a more accurate and complete record by registering both parents on a Certificate regardless of gender. Therefore DPH’s policy of refusing to register a mother’s wife on a Certificate is not substantially related to accuracy.

Second, DPH argues its policy promotes efficiency. As explained above, a Certificate has a statistical purpose and a documentary purpose. For the documentary purpose, DPH does not explain how excluding a mother’s wife promotes efficiency beyond reducing its overall workload. The burden to record a second parent on a Certificate should be identical whether the second parent is male or female. A mother’s wife is similarly-situated to a “father,” and mere efficiency cannot justify inclusion of one group and exclusion of another similarly-situated group. See id. at 903-04.

A Certificate’s statistical purpose helps DPH report statistics to the federal government. DPH follows the federal Standard Form in designing a Certificate. DPH argues the Standard Form does not permit registration of a mother’s wife on a Certificate, and registration of a mother’s wife would decrease DPH’s efficiency in reporting statistics. Assuming registration of a mother’s wife would harm efficiency in reporting, this cannot qualify as an important interest. As explained above, a statistical aid is just one of a Certificate’s purposes. Furthermore, DPH performs many duties besides reporting statistics. See generally IOWA CODE § 144. According to France’s affidavit, Certificates comprise only about 200 of the 100,000 events DPH registers each year.12 Therefore, any impact registering a mother’s wife on a Certificate would have on statistical efficiency is too remote compared to DPH’s other duties to qualify as an important governmental interest. […]

Third, DPH argues that registration of a mother’s wife on a Certificate muddies the legal determination of paternity. As explained above, a Certificate does not use any statutory presumption of paternity and does not legally determine paternity. Therefore, registering a same-sex wife on a Certificate is wholly unrelated to any governmental interest in determining paternity.

3. Remedy

DPH’s policy of refusing to register a mother’s wife on a Certificate is not substantially related to any important governmental objective. See Varnum, 763 N.W.2d at 879. DPH has unconstitutionally interfered with a same-sex wife’s ability to receive the benefits of a Certificate. See id. at 907. Therefore DPH must modify the Certificate form to comply with equal protection. See id. DPH must also act consistently with its statutory duties. See generally IOWA CODE § 144. A categorical refusal to register a mother’s wife on a Certificate violates equal protection. DPH is required to modify its Certificate so as to identify both petitioners here as parents.

The LGBT advocacy group Lambda Legal represented the Buntemeyers and posted more background on the case here.

I don’t know whether the Iowa Department of Public Health will appeal this ruling. The department did appeal a district court ruling in an analogous case. Melissa and Heather Gartner, who are married, sued to have both their names listed on their son’s birth certificate. The department took the position that accuracy demands listing only the birthing mother, Melissa, even though many Iowa fathers who are not biological parents are named on their children’s birth certificates.

A Polk County district judge found in favor of the Gartners, heavily citing Varnum v Brien. Last week the Iowa Supreme Court heard oral arguments in the appeal of the Gartners’ case. I would be shocked if they do not uphold the lower-court ruling. Lambda Legal is also representing the Gartners.

Radio Iowa’s Dar Danielson posted highlights from the oral arguments.

Deputy Attorney General Julie Pottorff said the case does not involve the same-sex marriage ruling – it focuses on the language in state law which determines what is required for information on the birth certificate.

“Just because of the fact of biology, same-sex couples could never conceive a child, and for that reason the Constitution analysis should end at the initial analysis concerns people who are really similarly situated,” Pottorff says. She was asked if the birth certificate is used to establish legal parent rights of a child.

“No, I think that overstates it. The birth certificate statute represents the duty of the department to collect vital statistics,” Pottorff said. “In a couple places in that chapter, the purpose of accuracy and integrity of records is mentioned. All they are really doing isn’t determining the legal relationship between the parent and the child, they are determining the facts of the birth.”

The two women argue that without both names on the birth certificate they face an undue burden by having to go through adoption to establish the parental rights. Pottorff does not agree.

“I think the adoption process has been overplayed, the burden of it exaggerated by opposing council, with all due respect,” Pottorff said. “One of the aspects of a second parent adoption or a stepparent adoption – which is a procedure that would applicable here – is that you have to establish the termination of the biological parent’s rights. That’s not a hurdle here since the father is an anonymous sperm donor.”

Pottorff did not disparage the Gartners’ marriage but failed to acknowledge the real potential problems facing couples like the Gartners.

“This doesn’t mean that Heather and Melissa Gartner love their child any less and it certainly doesn’t mean that Heather and Melissa Gartner provide a less than a desirable home and it does not diminish the importance of family relationships,” Pottorff said.

Porttorff said nothing in the 2009 Iowa Supreme court ruling that paved the way for same sex marriage actually mandates both parents be listed on the birth certificate and that should be reserved for biological parents. But speaking outside the courthouse after the arguments, one of the mothers Melissa Gartner, says not being on her daughter’s birth certificate poses a lot of challenges.

“What if something did happen to Heather?,” Melissa Gartner told reporters outside the courthouse. “I don’t want to think that way, but then I have to file guardianship papers on my own child.”