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.

Ex-Partner Seeks Parental Rights
P.S. and C.E. began a romantic relationship in 2003. They moved in together and exchanged bracelets to symbolize their engagement. Same-sex marriage was not legal in Ohio at the time of their relationship, but it was legal in several other states while they were together. Despite that, the parties never married.

Nearly a decade into the relationship, P.S. became pregnant through artificial insemination and gave birth to a daughter in 2012. The two entered into a shared custody agreement for that child. In 2014, P.S. again gave birth via artificial insemination to twins. The couple did not have a shared custody agreement for the twins.

P.S. and C.E. separated in 2015, shortly before the Obergefell decision held that state prohibitions on same-sex marriages were unconstitutional.

In 2018, P.S. asked the Hamilton County Juvenile Court to terminate or modify the shared-custody agreement for the eldest child. C.E. countered and sought parental rights and custody of all three children, or at least shared custody or visitation rights for the twins.

A magistrate denied C.E.’s request to be named a legal parent, but awarded C.E. companionship time with the twins. The magistrate denied P.S. request to terminate the shared-custody agreement.

Both women objected to the magistrate’s decision, with C.E. again asking the juvenile court to name her a legal parent to the children. She argued that under Obergefell, the existing Ohio laws allowing men to be declared legal parents should be applied to same-sex couples.

The juvenile court concluded that no statute or case law granted it authority to recognize the same-sex partner of a child’s biological parent as the child’s legal parent. However, the court found that the women had entered into shared parenting agreements for all three children: through a written agreement for the older child and by “words and conduct” for the twins.

Both women appealed the decision to the First District. This time, C.E. explicitly cited R.C. 3111.95(A), which is known as Ohio’s “non-spousal artificial insemination statute.” It allows the consenting husband of a woman who conceived through artificial insemination using donor sperm to be recognized as the child’s natural parent.

Although the statute does not apply to non-married couples, the First District concluded that the law should be judicially modified to apply to an unmarried couple who would have been married but for the state’s ban on same-sex marriage. The First District remanded the case for the juvenile court to determine if P.S. and C.E. would have been married at the time the children were born. If they would have, the court reasoned that Obergefell and Pavan would require the statute be applied gender-neutrally and allowing C.E. to be recognized as the children’s parent.

P.S. appealed the decision to the Supreme Court, arguing a state court has no power to “manufacture an unlicensed marriage into existence.”

Supreme Court Analyzed Parentage Laws
Justice DeWine explained that Ohio has an “elaborate statutory scheme for determining parentage.” A woman can establish parentage by proving she gave birth. A man is presumed to be a child’s parent if he is married to the child’s mother. Married and unmarried men can also establish paternity by acknowledging it or by presenting evidence of paternity. An adoptive parent can establish parentage by proof of adoption.

The artificial insemination statute allows the husband who consents to his wife who conceived a child through artificial insemination to be recognized as the natural parent of that child. The Court ruled that the statute’s plain meaning applies only to married couples. Since P.S. and C.E. were never married, the statute cannot confer parentage rights to C.E.

The Court noted the only way the First District’s decision could be upheld is if U.S. Supreme Court precedent requires Ohio courts to rewrite and retroactively apply the statute to same-sex couples who would have been married when the children were born. But nothing in the highest court’s decisions require such a modification, the Court explained.

The majority opinion reviewed two applicable U.S. Supreme Court cases: Obergefell and Pavan. Today’s opinion explained that these two U.S. Supreme Court decisions “stand for the proposition that states must provide same-sex couples equal access to marriage, and once married,” the same benefits as opposite sex couples. But these decisions do not require non-married same-sex couples to receive the same benefits as married couples. Therefore, the Court held that C.E.’s argument for parentage rights under the artificial inseminations statute failed.

‘Would Have Been Married’ Standard Unworkable
In addition to its holding that the plain language of the statute requires reversing the First District’s decision, the Court also noted that the “would have been married” inquiry would set “trial courts on an impossible mission to retroactively determine whether a different reality would have produced different events.”

The Court also found the standard is impermissibly similar to common-law marriage, which Ohio’s General Assembly abolished in 1991. Much of the same facts used to establish common-law marriage, like proof of cohabitation and the couple holding themselves out to be married, are likely the same factors courts would consider when determining if same-sex couples “would have” been married.

“The General Assembly expressly rejected this type of marriage when it banned common-law marriage in 1991, and it is not within the First District’s power to judicially revive it,” the Court stated.

The Court remanded the case to the First District to consider the parties’ other arguments.

2024-0303. In re L.E.S., Slip Opinion No. 2026-Ohio-1449.

View oral argument video of this case.

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