Supreme Court: Court may not retroactively rewrite statute to apply to same-sex couple’s parental rights dispute

Ohio Supreme Court

An Ohio appeals court exceeded its authority when it ordered a trial court to determine if a same-sex couple “would have been married” if same-sex marriage had been legal in Ohio during the couple’s relationship, the Supreme Court of Ohio ruled today.

The decision arose out of a custody dispute between two women, identified in court records as “C.E.” and “P.S.” The relationship between the two women ended before the U.S. Supreme Court’s 2015 Obergefell v. Hodges decision requiring states to recognize same-sex marriages.  P.S. is a biological parent of the children. C.E. sought to use the state’s artificial insemination statutes to assert that she should retroactively be granted the same parental rights that a married spouse of a woman who conceived through artificial insemination would have obtained under the statute.

Writing for the Court majority, Justice R. Patrick DeWine explained that, while married same-sex couples are entitled to the same “constellation of benefits” states have attached to opposite-sex marriage, the U.S. Supreme Court’s decisions in Obergefell and Pavan v. Smith (2017) do not authorize a retrospective judicial rewriting of statutes to include non-married couples. Whether the couple “would have been married” had same-sex marriage been permitted is not an appropriate inquiry, nor a workable line of reasoning, the Court explained. The majority further reasoned that permitting such an inquiry would essentially revive common-law marriage, which is prohibited in Ohio.

Justice DeWine wrote the Ohio law applies to spouses, and C.E.’s argument may have been viable had she and P.S. been married.

“But because access to the non-spousal artificial insemination statute turns on marital status, C.E. cannot use the statute to establish parentage,” Justice DeWine stated.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion.

In an opinion concurring in judgment only, Justice Jennifer Brunner maintained that C.E. abandoned the argument she used in juvenile court – that she could establish parentage through the same laws used by unmarried fathers. Instead, she raised the artificial insemination law for the first time when she appealed to the First District Court of Appeals.

“The majority opinion and the First District’s decision present two sides of a novel question that was never presented or factually developed in the juvenile court,” she wrote.

Rather than rule on the case, the Supreme Court should have reversed the First District’s decision and remanded the case to the appeals court to consider other arguments raised by the women, she added.