What’s Not the Matter with Kansas: State Supreme Court Broadly Recognizes the Rights of Lesbian Co-Parents

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the Kansas Supreme Court holding that a woman who conceives through artificial insemination and her same-sex partner can both be deemed the legal parents of any resulting child born during their relationship under the Kansas Parentage Act, even if the couple has not entered into a co-parenting agreement. Grossman explains the facts of the case and the court’s reasoning, and she explains why the court effectively balanced the rights and interests of the two women.

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Danville Christian Academy Inc. v. Beshear

Docket: 20-6341

Opinion Date: November 29, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Education Law

On November 18, 2020, in response to a surge in COVID-19 cases, Kentucky Governor Beshear issued Executive Order 2020-969, prohibiting in-person instruction at all public and private elementary and secondary schools; elementary schools may, under certain circumstances, reopen for in-person instruction between December 7 and January 4, 2021; middle and high schools may reopen for in-person instruction no sooner than January 4, 2021. The order exempts “small group in-person targeted services” and “private schools conducted in a home solely for members of that household,” and exempts, by omission, preschools and colleges or universities. Kentucky “leads the nation in children living with relatives other than their parents – including grandparents and great-grandparents, who are especially vulnerable” and have high rates of comorbidities that can lead to severe cases of COVID-19, including heart and lung conditions.” In a challenge under the Free Exercise and Establishment Clauses of the First Amendment and the Kentucky Religious Freedom Restoration Act, the district court enjoined the Governor from enforcing the order against any private, religious school that otherwise adheres to Kentucky public health measures. The Sixth Circuit granted the Governor’s motion to stay the order pending appeal, stating that the plaintiffs are unlikely to succeed on the merits of their Free Exercise claim. The order is neutral and of general applicability. The court distinguished recent Supreme Court rulings concerning religious institutions.