Reply Brief — Linsay Lorine Gatsby, nka Linsay Lorine Wallace, Petitioner v. Kylee Diane Gatsby

No. 21-1212

In the

Supreme Court of the United States

————

LINSAY LORINE GATSBY,

N/K/A LINSAY LORINE WALLACE,

Petitioner,

v.

KYLEE DIANE GATSBY,

Respondent.

————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF IDAHO

————

REPLY BRIEF FOR PETITIONER

————

HOWARD A. BELODOFF

IDAHO LEGAL AID

SERVICES, INC.

1447 South Tyrell Lane

Boise, ID 83706

MICHAEL E. BERN

Counsel of Record

BLAKE E. STAFFORD

L. ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

michael.bern@lw.com

Counsel for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTRODUCTION .......................................................1

REASONS FOR GRANTING THE PETITION .........2

I.

The Idaho Supreme Court’s Decision Is

Incompatible With This Court’s Decisions ..........2

A. The Idaho Supreme Court’s Decision

Conflicts With This Court’s Due Process

Decisions ..........................................................2

B. The Decision Below Conflicts With This

Court’s Equal Protection Decisions ................7

II. The Result Below Conflicts With The

Results Reached By Numerous Other State

Courts .................................................................10

III. The Question Presented Is Exceptionally

Important And Warrants Review In This

Case .....................................................................11

CONCLUSION ..........................................................13

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Doe v. Doe,

372 P.3d 1106 (Idaho 2016) ................................ 8

Lehr v. Robertson,

463 U.S. 248 (1983) ............................................. 4

Meyer v. Nebraska,

262 U.S. 390 (1923) ............................................. 1

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ............................................. 5

Obergefell v. Hodges,

576 U.S. 644 (2015) ............................. 1, 2, 3, 6, 7

Pavan v. Smith,

137 S. Ct. 2075 (2017)............................... 7, 9, 10

Troxel v. Granville,

530 U.S. 57 (2000) ............................................... 5

Zablocki v. Redhail,

434 U.S. 374 (1978) ..................................... 1, 3, 6

INTRODUCTION

Respondent admits that “[t]his case presents a

question of vital interest to the parties, the State of

Idaho and those Idaho residents who may need to use

artificial insemination to conceive a child.” Opp. 1.

More fundamentally, this case tests whether this

Court meant what it said in Obergefell v. Hodges,

when it held that same-sex couples share the same

protected “‘right to “marry, establish a home and

bring up children”’” that opposite-sex couples have

long enjoyed. 576 U.S. 644, 668 (2015) (quoting

Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quoting

Meyer v. Nebraska, 262 U.S. 390, 399 (1923))).

The decision below flouts that principle by holding

that Petitioner lacks any constitutionally-protected

interest in the care or custody of her daughter, whom

she and her wife agreed to conceive and raised

together from birth within their marriage. By

treating half of every same-sex couple as a legal

stranger to their children, the decision threatens to

return same-sex couples and their children to the

same paradigm of insecurity, instability, and

impermanency

against

which

Obergerfell’s

constitutional holding was supposed to “safeguard[]

children and families.” Id. at 667-68. This Court’s

intervention is needed to prevent that result and to

ensure that Obergefell’s critically important holding

is not undermined.

Intervention is also warranted to address Idaho’s

unequal treatment of opposite-sex and same-sex

couples. Respondent concedes that the decision below

would deprive half of all same-sex couples of a

statutory path to parenthood available to opposite-sex

couples. Opp. 16. It would likewise impose a series

2

of invasive burdens on same-sex couples seeking to

have children that “do[] not apply” to nearly all

opposite-sex couples.

Opp. 15-16.

Tellingly,

moreover, Respondent cannot point to a single

opposite-sex couple upon whom those burdens have

ever actually been enforced. Such unequal treatment

of same-sex couples is likewise incompatible with this

Court’s precedent.

Although Respondent devotes much of her

response to parsing the decisions of other state courts,

she ultimately admits that the result in this case

“differ[s]” from that which would follow in numerous

other states. Opp. 20; see also id. at 29-30. But a

married couple’s fundamental interest in the care and

custody of children that they work to conceive and

raise together should not turn on what state they live

in, nor the couple’s sexual orientation. This Court’s

intervention is warranted.

REASONS FOR GRANTING THE PETITION

I. The Idaho Supreme Court’s Decision Is

Incompatible With This Court’s Decisions

A. The Idaho Supreme Court’s Decision

Conflicts With This Court’s Due Process

Decisions

1. The Due Process Clause indisputably affords

both spouses in a marriage a fundamental liberty

interest in the care, custody, and control of the

children born and raised within that marriage. Pet.

13-20. The Court’s decision in Obergefell v. Hodges,

left no doubt that this fundamental right extends to

same-sex marriages. 576 U.S. 644, 667-70 (2015).

The Idaho Supreme Court’s decision in this case,

however, vitiated that fundamental right by refusing

3

to recognize any legal relationship between Petitioner

and her daughter. Pet. 20-24.

Respondent’s opposition is virtually silent about

these problems with the decision below. She does not

dispute that “‘[t]he right to “marry, establish a home

and bring up children” is a central part of the liberty

protected by the Due Process Clause.’” Obergefell, 576

U.S. at 668 (quoting Zablocki v. Redhail, 434 U.S.

374, 384 (1978) (citation omitted)). Nor does she deny

that Obergefell treated those rights as a “unified

whole,” and affirmed that those rights apply equally

to same-sex couples. Id. at 665, 668 (emphasis

added). Neither does she contest that Obergefell was

intended to afford stability and permanency to samesex families, and thereby prevent the children of a

same-sex marriage from being “legal strangers to one

of their parents.” Pet. 18-20 (citation omitted). The

Idaho Supreme Court majority’s decision, however,

would deprive same-sex couples of the very rights

Obergefell enshrined, and expose same-sex families to

the very harms that Obergefell was intended to

eliminate. Respondent does not even attempt to

argue otherwise.

2. Instead, Respondent’s limited response to

Petitioner’s due process argument advances two

arguments for why this Court should not get involved.

Neither is convincing.

a. Respondent principally seeks to discourage

this Court from intervening by suggesting (at 18-20)

that if this Court reaffirms that same-sex couples

share a liberty interest in the care and custody of

their children, difficult line drawing problems might

arise in a different case involving different facts. That

misses the mark for many reasons.

4

This case presents none of the line drawing

questions about which Respondent speculates.

Petitioner and Respondent were married when they

agreed to have a child; both consented to the child’s

conception by artificial insemination; Petitioner was

intimately involved in supporting Respondent’s

conception and pregnancy; Petitioner and Respondent

together held themselves out as P.G.’s parents after

her birth; they even secured a birth certificate from

Idaho attesting to the fact that both Petitioner and

Respondent were P.G.’s mothers; and they together

shared responsibility for, cared for, and raised P.G.

from birth in their marital home. Pet. 3-4. This case

thus raises none of the line-drawing questions

suggested by Respondent, underscoring that this is a

particularly good vehicle for this Court’s intervention.

In any event, Respondent’s concern about linedrawing is misplaced. Courts have dealt comfortably

with line drawing in this area for decades. In Lehr v.

Robertson, for instance, this Court held that an

unwed biological father’s due process right to share in

the care and custody of his child depends on having

“grasp[ed] that opportunity and accept[ed] some

measure of responsibility for the child’s future.” 463

U.S. 248, 262 (1983). Application of that standard

might prove challenging in a particular case. But that

did not discourage this Court from recognizing that

an unwed father can prove a constitutionally

protected interest in the care and custody of his child.

Whatever line-drawing may need to occur in some

future case is no reason to deprive all married, samesex, non-biological parents of a constitutional interest

5

in the children that they plan for, work to conceive,

and raise within their marriage.1

b. Respondent relatedly argues (at 20) that the

question of when same-sex parents have a right to the

care and custody of their children is a question of

legislative prerogative, not constitutional law. In

making this argument, however, Respondent ignores

that this Court has long recognized that “there is a

constitutional dimension to the right of parents to

direct the upbringing of their children.” Troxel v.

Granville, 530 U.S. 57, 65 (2000). Indeed, “the

interest of parents in the care, custody, and control of

their children[] is perhaps the oldest of the

fundamental liberty interests recognized by this

Court.” Id.; see also Pet. 13-20.

In arguing that no liberty interest applies here,

Respondent principally points to Michael H. v. Gerald

D., in which a four-Justice plurality of this Court

upheld California’s choice to prioritize the parental

rights of a married couple to a child “conceived within

and born into their marriage” over those of the

biological father, when the child was born as a result

of adultery. 491 U.S. 110, 129-30 (1989).

Respondent draws the wrong lessons from Michael

H. To begin with, Michael H. underscores that the

touchstone for whether a married couple enjoys a

protected interest in the care and custody of their

child is not biology but the liberty afforded married

1

Respondent tries to inject further ambiguity into the

exercise by pointing out that Petitioner sometimes uses slightly

different words to describe conduct underlying the right at issue,

such as whether a couple “agree[s]” or “resolve[s]” to have

children together. Opp. 18-19 (discussing Pet. i, 1). But

Petitioner’s use of synonyms creates no inconsistency.

6

couples to structure their family life. Pet. 15-18; see

also Zablocki, 434 U.S. at 386 (“[D]ecisions relating to

procreation, childbirth, child rearing and family

relationships” are closely bound together with and a

necessary component of the freedom “to enter the

relationship that is the foundation of the family in our

society”: marriage.).

More importantly, Respondent ignores that

Petitioner’s interest in the care and custody of her

child in this case is different from and more

substantial than that of the biological mother’s

husband in Michael H. Unlike in that case., the child

at issue here is not the product of adultery outside the

marriage, but rather a consensual decision by a

married couple to conceive and raise a child within

the marriage. Petitioner’s due process interest in this

case, therefore, fits comfortably within Obergefell’s

observations that “‘[t]he right to “marry, establish a

home and bring up children”’” is part of a “unified

whole,” and “a central part of the liberty protected by

the Due Process Clause.” 576 U.S. at 668 (citations

omitted).

Obergefell’s recognition that same-sex

couples enjoy those same rights—even though one

same-sex parent lacks a biological relationship to the

couples’ children—is sufficient to reject Respondent’s

claim (at 19) that a non-biologically-related parent in

a same-sex marriage lacks any constitutional interest

in the care or custody of his or her children.

3. The decision below is fundamentally

incompatible with this Court’s due process precedents

and would deeply undermine this Court’s decision in

Obergefell. Pet. 13-24. This Court should intervene

to prevent that unwarranted and harmful result.

7

B. The Decision Below Conflicts With This

Court’s Equal Protection Decisions

The decision below also conflicts with this Court’s

equal protection jurisprudence by depriving same-sex

couples of equal access to the benefits of marriage. In

Obergefell and Pavan v. Smith, 137 S. Ct. 2075 (2017),

this Court made clear that the same-sex couples are

entitled to exercise the fundamental right to marry

“on the same terms and conditions as opposite-sex

couples.” Obergefell, 576 U.S. at 675-76. This Court

likewise affirmed that the equal protection clause

guarantees same-sex couples not only the right to

marry itself, but rather equal access to the same

“constellation of benefits that the States have linked

to marriage”—including “child custody.” Id. at 670;

Pavan, 137 S. Ct. at 2076-79.

Respondent does not appear to contest any of that.

Her principal defense is to claim that Idaho regulates

parental rights in a “gender-neutral, sexualorientation-neutral manner” that “applies equally to

same-sex and opposite-sex couples.” Opp. 2. That is

wrong.

1. First, the AIA does not create parental rights

in a gender- or sexual-orientation-neutral manner

because it provides no mechanism for half of all samesex couples (same-sex male couples) to obtain

parental rights through artificial insemination.

Respondent dismisses that unequal treatment as

“irrelevant” because Petitioner herself is not male.

That misses the point. As Respondent herself admits,

the AIA must be interpreted in a gender-neutral

manner that applies equally to opposite-sex and

same-sex couples. Opp. 13. By reading the AIA to

treat same-sex female and male couples differently,

8

and to preclude half of same-sex couples from

securing rights through artificial insemination at all,

the Idaho Supreme Court majority’s construction of

the AIA flunks that requirement.

Respondent tries to evade that conclusion by

suggesting that same-sex male couples do not

conceive using artificial insemination at all, but

instead rely on gestational surrogacy. That is both

inaccurate and immaterial. First, same-sex male

couples

often

conceive

through

artificial

insemination. See Pet. 26 (citation omitted). Second,

neither the AIA nor any other Idaho provision

provides an equivalent route to obtaining parental

rights through surrogacy. In fact, the Idaho Supreme

Court has expressly rejected that such a statutory

path exists. Doe v. Doe, 372 P.3d 1106, 1108 (Idaho

2016) (legislature has not “enact[ed] legislation

specifically addressing surrogacy”).2 The record is

thus clear—the AIA as construed by Idaho’s Supreme

Court does not apply neutrally with respect to gender

or sexual orientation.

2. Even leaving the problem of same-sex male

couples aside, Respondent acknowledges that the AIA

imposes a variety of burdens on same-sex couples that

almost no opposite-sex couple is required to bear. See

Opp. 14-16 She does not contest, moreover, that these

burdens meaningfully intrude on a couple’s autonomy

and privacy, and impose an expense that some

couples cannot bear. Pet. 27.

2

The lower court decision in Doe went even further,

holding that surrogacy contracts are void as against public

policy. See 372 P.3d at 361. The Idaho Supreme Court did not

reach that issue on appeal. Id. at 362.

9

Instead, Respondent’s only response (at 15-16) is

to claim that the infinitesimally few opposite-sex

married couples that seek to conceive via artificial

insemination from a third party sperm donor are

subject to the same regime. See Pet. 27-28 & n.4.

Under that reading, a law that discriminates against

100% of same-sex couples would be constitutionally

unproblematic so long as a bare handful of oppositesex couples were somehow impacted. Respondent

points to no authority for that proposition. Nor does

she respond to the contrary authority noted in the

petition. Pet. 27-28.

3. Even if the AIA could theoretically apply to an

opposite-sex couple, there is no evidence that Idaho

has ever applied it to burden one.

Pet. 28.

Respondent again offers no contrary evidence.

Instead, it faults Petitioner for failing to point to

opposite-sex couples treated as parents despite

noncompliance with the AIA. But Idaho has admitted

that no Idaho couple has ever complied with the AIA’s

provisions. See Pet.App.35a. Yet Idaho has never

stripped an intended parent of parental rights for

noncompliance until this case.

4. Respondent’s opposition highlights still

another way in which Idaho’s actions in this case

treats opposite-sex and same-sex couples differently.

In Pavan, this Court held that an Arkansas law

violated the Equal Protection Clause by requiring the

placement of a birth mother’s husband on a child’s

birth certificate following sperm donation, but

denying that right to married same-sex couples. 137

S. Ct. at 2078-79.

All agree that Idaho here does issue birth

certificates to same-sex couples listing both members

of that couple as the child’s parents. Pet. 4-5. But

10

Respondent herself suggests Idaho’s issuance of such

birth certificates is an empty gesture, overcome

whenever the birth mother’s same-sex spouse is not

in fact a biological parent (i.e. in every case). Opp. 11.

This Court cannot permit Pavan to be circumvented

so easily. That is particularly so because the fact that

Idaho issues birth certificates to same-sex couples at

all suggests that—as Pavan noted of Arkansas—birth

certificates do more than serve as a “mere market of

biological relationships.” 137 S. Ct. at 2078.

For all these reasons, Idaho’s statutory regime

singles out same-sex couples for unequal treatment.

This Court intervention is warranted to prevent that

result and vindicate the principles it articulated in

Obergefell and Pavan.

II. The Result Below Conflicts With The Results

Reached By Numerous Other State Courts

Respondent devotes much of her opposition to

addressing various other state court decisions that—

unlike the court below—recognize that both members

of a married same-sex couple share a right to the care

and custody of their children. Respondent argues

that every case is distinguishable, but in so doing

misses the forest for the trees. What matters is that—

as she concedes—many of the other state courts would

decide child custody “differently” than Idaho did here,

with many states “generally allow[ing] persons who

are not biologically related to a child” to obtain legal

parenthood upon participating in the conception and

raising of a child as Petitioner did here. Opp. 29-30.

That so many states “differ” in their approach, Opp.

20, is all the more reason to reaffirm a constitutional

baseline, rather than subject families to a patchwork

of unstable rules from state to state.

11

III. The Question Presented Is Exceptionally

Important And Warrants Review In This

Case

Respondent’s efforts to downplay the significance

of the decision below or the need for this Court’s

review are unavailing.

1. Although Respondent opens her brief by

acknowledging that this case presents a question of

“vital interest” to the parties, Opp. 1, the State of

Idaho, and others, Respondent closes by suggesting

that this case would have only a “[l]imited [i]mpact”

because “Idaho is a sparsely populated state,” Opp.

30-31. But whether same-sex couples are entitled to

the same fundamental right to share in the custody

and care of their children that opposite-sex couples

enjoy is a question of far-reaching importance to

millions of Americans nationwide, not just Idahoans.

Whether the decision below will be permitted to

hinder the “permanency and stability” that Obergefell

promised to same-sex couples and their children is

likewise an issue of surpassing importance.

The decision also will generate “profound

ramifications, many untoward” in Idaho if it is not

overturned. Pet.App.36a (Stegner, J., dissenting); see

also Pet. 34-35. Thousands of Idaho families will be

destabilized. Meanwhile, the decision will enable

some Idaho parents to escape financial and personal

responsibilities to their child, while forcing other

parents to choose between remaining in unhappy or

even violent marriages or giving up a relationship

with their child. Respondent insists that these dire

consequences are easily avoided so long as couples

simply obey the AIA. Opp. 17. But no Idaho couple

has complied with the AIA for four decades, Pet. 7—

12

for those thousands of couples and their children, and

many more surely to come, the consequences are all

too real.

2. Respondent also posits (at 31-32) that reversal

would not provide Petitioner with “a remedy” because

the courts below already concluded “that it was not in

the child’s best interest for Petitioner to have legal

custody, physical custody or visitation with the child.”

But as Petitioner has explained, the Idaho courts’

“best interests” analysis was expressly premised on

its threshold belief that Kylee—and only Kylee—had

a “fundamental constitutional . . . right to the

custody, care, and control of [P.G.].” Pet.App. 4a; see

also Pet.App.79a. As a result, the Idaho courts

afforded superior weight to Kylee’s interests and

minimal weight to Linsay’s. If this Court holds that

Linsay shares a constitutionally protected interest in

P.G.’s care or custody, Idaho’s courts would be

required to redo the best interests analysis on

remand.

3. The questions presented are important and

warrant this Court’s review.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

HOWARD A. BELODOFF

IDAHO LEGAL AID

SERVICES, INC.

1447 South Tyrell Lane

Boise, ID 83706

MICHAEL E. BERN

Counsel of Record

BLAKE E. STAFFORD

L. ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

michael.bern@lw.com

Counsel for Petitioner

April 20, 2022