Equal Protection Clause vs. Scientific Fact

My nickname in college was “Curve Crusher.”

I’ll admit it. I was “that guy” — the nerd in the back of the room the instructor always called upon to answer the question (even though his hand wasn’t up) when no one else in the room could — the guy who eliminated all probability of a grading curve for the course.

In Pre-Calculus my first semester, required by my vocational rehabilitation counselor because I had been “out of school” too long, I finished with 147 percent. The next semester, I finished Calculus I with a much higher score (I actually did the lectures for about half of the semester when the instructor came down with a nasty case of walking pneumonia). That same semester, I took Biology I from Dr. Bergen as one of my science electives, and finished with a score of 156 percent. So, when I say I understand the basics of human biology, I mean it.

But, Polk County District Court Judge Eliza Ovrom clearly learned something in her biology classes that I didn’t. In a ruling today, she established something that I was pretty sure Dr. Bergen told me was impossible.

   A child can have two biological mommies (cue that scratching record noise).

A brief history of the case Gartner et al. v. Iowa Department of Public Health:

Heather and Melissa Gartner entered into a “committed lesbian relationship” in 2003, and held a commitment ceremony three years later. One year later, as a result of in vitro fertilization, Heather had a son, who Melissa then adopted.

Following that adoption, the couple received an amended birth certificate that listed both women as parents.

A couple years later, Heather conceived again using the same anonymous sperm donor that fathered her son. A few months later, in April 2009, the Iowa Supreme Court handed down its decision in Varnum v. Brien, which “legalized” homosexual marriage. Heather and Melissa married a couple months later.

Three months later, in September of 2009, Heather gave birth to a daughter. Both she and Melissa filled out the form to obtain a birth certificate from the IDPH, listing both of them as parents, but when the birth certificate was returned, it listed only Heather as the mother, leaving the other parent space blank.

The IDPH interpreted state law to say Melissa could only be listed as a parent on an amended birth certificate if she first adopted the child. So, the women sued the department, arguing it did not have the authority to interpret the law, and that applicable state laws should be read from a gender-neutral viewpoint in light of the Varnum decision.

The women sued for judicial review under Chapter 17A of the Code of Iowa, which allows a court to “reverse, modify or grant other appropriate relief from final agency action if it determines the substantial rights of petitioner have been prejudiced.” The burden of demonstrating the required prejudice and the invalidity of agency action is on the party asserting invalidity, in this case the IDPH.


Judge Ovrom found the IDPH does not have authority to interpret the statute — 144.13(2) of the Code of Iowa — that pertains to issuing birth certificates.

   “…[T]he concept of ‘paternity’ as set forth in Section 144.13 is not exclusively within the expertise of the Iowa Department of Public Health. The term is found within statutes that the Department is not taxed with enforcing… In addition, the concept of legitimacy of children is not uniquely within the expertise of the Department of Public Health.”

Attorneys for the women said the Varnum decision should have forced the IDPH to read the word “husband” as “spouse” and “father” as “parent” in Section 144.13(2). Judge Orvom agreed:

   “Varnum states that language in the Code of Iowa will have to be interpreted and applied to carry out the legality of same-sex marriage: ‘Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.’”


Sadly, the attorneys representing the IDPH refused to claim children raised by same-sex “married” parents are impacted negatively. In fact, everyone involved in the case agreed Iowa law recognizes a parent’s sexual orientation has no effect on his or her ability to parent a child.”

Judge Ovrom then went to the extreme of suggesting her decision would be in the child’s best interests by “preserving the integrity of the family,” which should be the government’s role. She also cited “administrative convenience” as a deciding factor in her ruling.

She also noted the biological father could not be identified because an anonymous sperm donor was used for an in vitro fertilization. Attorneys for the IDPH argued other biological fathers could take court action to keep themselves from being excluded from children’s birth certificates, but Judge Ovrom takes a curiously myopic view.

   “Again, this cannot happen in this case, where the sperm is from an anonymous donor. The court’s holding is limited to the facts of this case.”

At this point, I have to ask why we’ve become so liberal about who is listed as a parent on a birth certificate, which is arguably an important historical record — otherwise part of the family of “vital statistics” — which the IDPH is singularly responsible to maintain.

From Judge Ovrom’s written ruling:

   “One important function of the Department is the maintenance of accurate and complete records and statistics of all vital events in Iowa, including births. The parties agree that a birth certificate is the primary way to demonstrate legal parentage. They also agree that it is relied upon and legally required to establish identity, age, and parentage in many contexts, including school, employment, travel, social security, marriage licenses, driver’s licenses, professional licenses, insurance, banking, and medical care.”


The obvious problem is the women, the attorneys representing the IDPH, and the court all view the importance of the birth certificate from a flawed viewpoint. Judge Ovrom states Melissa is unable to prove she is the child’s parent without a birth certificate, impacting her ability to authorize medical care for the child, to enroll her in school or childcare, or to get health care coverage for the child.

But, the purpose of a birth certificate is to establish the biological parentage of a person, not to establish identity. It’s perhaps one of the biggest weaknesses that leads to widespread identity theft. You aren’t a person — you’re not who you say you are — because you have a birth certificate.


Let’s play “for instance” for a moment. Before we do, I just want to say I’m a huge fan of adoption. And, I’m pretty sure I’m going to anger quite a few adoptive parents with what I have to say next, but I hope you all can understand this is a matter of vital importance to our society as a whole.

So, let’s say a person in early adulthood contracts a potentially fatal condition, such as kidney or liver failure, which can be corrected via medical procedures that involve transplants from genetically similar people, such as siblings or biological parents. An unadulterated birth certificate can make this information readily available.

Amended birth certificates, which serve only one purpose — to make the “adoptive parents” feel good — present an obvious hindrance. One could make a strong argument it is in the interest of the public’s general welfare — which government has a responsibility to protect — to do away with freely amending birth certificates to include non-biological parents.

Now, with a horribly skewed worldview at work, Judge Ovrom continued to rewrite the laws of Iowa and, by extension, nature.


Ironically, she refused to look at the case from one of the key viewpoints the women’s attorneys attempted to press: the Equal Protection Clause of the Iowa Constitution. But, I believe a review of Article I Section 6 can be instructive in this case.

It states: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”

There’s one problem with Judge Ovrom’s ruling, if you look at it from the same viewpoint she and the women’s attorneys were attempting to see the situation. Only women can birth children, which means this ruling can only ever apply to women, creating a “special class within a class” that would be otherwise unconstitutional under the Equal Protection Clause.


Of course, the likelihood of the Supreme Court reversing this decision is somewhere between slim and none. And, the odds of Gov. Branstad or the General Assembly forcing the courts’ hands on this matter are on the low side of zero.

And folks wonder why Christians and conservatives want to get aggressive with the judiciary?