In a decision announced on Friday, the Iowa Supreme Court ruled that it is unconstitutional for the Iowa Department of Public Health to refuse to list a non-birthing lesbian spouse on a child’s birth certificate. Details on this nearly unanimous ruling are after the jump. I was intrigued by how Governor Terry Branstad’s three appointees from 2011 handled this case.

Heather and Melissa Gartner filed this lawsuit in 2010 after the Iowa Department of Public Health declined to list Melissa on the birth certificate of daughter MacKenzie. The baby was conceived using an anonymous sperm donor and carried by Heather Gartner after the two women had been legally married in Iowa.

Polk County District Court Judge Eliza Ovrom found in favor of the Gartners last year. Bleeding Heartland posted excerpts from her ruling here. Judge Ovrom noted that under Iowa law, a married man is considered the father of his wife’s baby, even where there is no chance that he could be the biological father. The district court ruling pointed out that the Iowa Supreme Court’s 2009 decision in Varnum v Brien ordered that “remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.” Since birth certificates are “the primary way to demonstrate legal parentage,” Judge Ovrom found in favor of the Gartners, although she did not rule on constitutional arguments in the Gartners’ lawsuit.

The Iowa Department of Public Health appealed the ruling and asked the district court to stay the enforcement of its order. Judge Ovrom declined to stay her order that the department issue a new birth certificate to the Gartners but “but did grant the stay as to other birth certificates the Department may issue,” on the grounds that “administrative problems would arise if the Department issued birth certificates to other married lesbian couples and [the Iowa Supreme Court] subsequently reversed the district court’s decision.”

Ryan Koopmans posted briefs from both sides in this case at the On Brief blog, which covers “appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.”

Justice David Wiggins wrote the majority opinion; the full text is available here (pdf). Justices Brent Appel, Daryl Hecht, and Mark Cady joined Wiggins’ opinion. All four were part of the unanimous Varnum v Brien ruling in 2009, which Cady wrote. Key passage:

On appeal, we conclude that we cannot interpret the statute in the same manner as the district court. However, we do find section 144.13(2) as applied to married lesbian couples violates the equal protection clauses found in article I, sections 1 and 6 of the Iowa Constitution. Accordingly, the Department must presumptively list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage when the child was born to one of the spouses during their marriage. Consequently, we affirm the judgment of the district court ordering the Department to issue a birth certificate naming both spouses as parents. Therefore, we remand the case to the district court, order the district court to lift the stay, and order the district court to remand the case to the Department for issuance of a birth certificate also listing the nonbirthing spouse as the child’s parent.

After summarizing key facts of the case, Wiggins wrote on page 9 that the Iowa Department of Public Health’s rulemaking power does not give it the authority to interpret “all statutory language” and specifically the language at issue in this case. On page 10 the ruling notes that it is the judiciary’s task to determine whether a statute or administrative rule is unconstitutional. A discussion of case law and common law on the “presumption of parentage” follows. In many situations, married men are recognized as legal fathers of children despite a lack of biological connection to those children.

Other states that have legalized same-sex marriage have also “extended the “marital’ parentage presumption to same-sex couples,” the court ruling notes on page 15.

The Iowa Supreme Court disagreed with Judge Ovrom’s interpretation of an Iowa statute for reasons explained on pages 16 through 19. But in a constitutional analysis on pages 19 through 27, the court found that the statute applied by the Iowa Department of Public Health

fails to comport with the guarantees of equal protection under article 1, sections 1 and 6 of the Iowa Constitution. The Department has been unable to identify a constitutionally adequate justification for refusing to list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage, when the child was conceived using an anonymous sperm donor and was born to the other spouse during the marriage. Thus, the language in section 144.13(2) limiting the requirement to “the name of the husband” on the birth certificate is unconstitutional as applied to married lesbian couples who have a child born to them during marriage.

The Supreme Court did not strike down that part of state law, but opted to “preserve it as to married opposite-sex couples and require the Department to apply the statute to married lesbian couples.” Some gay male couple may have to file a separate lawsuit for the right to have both fathers listed on a child’s birth certificate.

As I mentioned above, the three other Supreme Court justices who were on the court in 2009 joined Justice Wiggins’ ruling. Justice Edward Mansfield, whom Governor Terry Branstad appointed in 2011, wrote a short concurring opinion, which I enclose in full:

The Iowa Department of Public Health accepts the decision in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), for purposes of this appeal. I agree that if Varnum is the law, then Iowa Code section 144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse. Accordingly, I concur in the judgment in this case.

Another Branstad appointee from 2011, Justice Thomas Waterman, joined Mansfield’s “special concurrence.”

I read this concurrence to imply that Mansfield and Waterman don’t necessarily agree with the equal protection arguments in Varnum or in Wiggins’ latest decision. Rather, they simply state that if one accepts Varnum, one can’t support the Iowa Department of Public Health’s action with respect to the Gartners or other same-sex couples.

The court ruling noted that Justice Bruce Zager “takes no part.” Zager was the third justice Branstad appointed in 2011. He has been seen as the court’s “swing vote.”

I couldn’t find any record of Zager citing a conflict of interest or some specific reason not to concur with or dissent from this ruling. I noticed that he “took no part” in another 6-0 Iowa Supreme Court ruling last year. I don’t know what the protocol is for a justice to decline to take part in a ruling. If Zager doesn’t agree with either Wiggins’ or Mansfield’s opinion regarding the Gartners’ case against the Iowa Department of Public Health, I’d be interested in hearing why. Surely this won’t be the last equal protection case the Iowa Supreme Court hears in connection with LGBT couples.

UPDATE: Ryan Koopmans, a litigation specialist at the Nyemaster Goode law firm in Des Moines, confirmed that Iowa Supreme Court justices who take no part in a ruling have a specific reason for recusing themselves. The Iowa Judicial Branch does not publicize reasons for a justice’s recusal. Koopmans speculated that Zager declined to take part because his daughter is a partner at the Davis Brown law firm. Along with attorneys from the Chicago-based advocacy organization Lambda Legal, Sharon K. Malheiro of the Davis Brown firm represented the Gartners in this case. Malheiro is also a founder and board chair of the LGBT advocacy group One Iowa.

SECOND UPDATE: An alert reader pointed out that Malheiro confirmed on Facebook that Zager recuses himself from any case involving the Davis Brown law firm, because his daughter is an attorney there.

Share any relevant thoughts in this thread.

THIRD UPDATE: Excerpt from an unsigned Des Moines Register editorial on May 8:

One of the most compelling arguments for recognizing marriages of gays and lesbians is that these couples otherwise lose out on the rights granted to heterosexual couples by state and federal governments. One of those is to be legally recognized as the parent of a child conceived in a legal marriage, and the Gartner decision reinforces the wisdom of Varnum.

Thus, it was jarring to read this one-paragraph “special concurrence” by Justice Edward Mansfield: “The Iowa Department of Public Health accepts the decision in Varnum v. Brien … for purposes of appeal. I agree that if Varnum is the law, Iowa Code section [on birth certificates] cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse. Accordingly, I concur in the judgment in this case.”

It is hard to see Mansfield’s use of the word “if” in this context as anything other than questioning the legitimacy of the Varnum decision.

As mentioned above, the latest court ruling applies only to lesbian married couples. I wonder whether the Iowa Supreme Court would require the Department of Public Health to acknowledge both fathers on a birth certificate if married gay men have a child through a surrogate mother, using either a donor egg or the surrogate mother’s egg. According to this report from KCRG, “there’s no case law in Iowa pertaining to surrogacy agreements.”