By Julia L. Leveridge, AAML

If you’ve ever wished a court could hop in a DeLorean like Marty McFly in “Back to the Future” and retroactively declare a couple “married,” the Ohio Supreme Court just took the keys away. In a closely watched parentage dispute, In re L.E.S., E.S., and N.S., the Ohio Supreme Court reversed an appellate ruling that had ordered a trial court to ask whether two women “would have been married” when their children were conceived via artificial insemination — if only Ohio had permitted same‑sex marriage at the time. The Ohio Supreme Court said that’s not how statutes work, and it’s certainly not how marriages work.

The backstory:

• The couple, identified as P.S. and C.E., began their relationship in 2003. During their time together, P.S. gave birth to three children through artificial insemination. They executed a shared‑custody agreement for the first child but not for later‑born twins. The relationship ended in early 2015, just before Obergefell recognized a constitutional right to same‑sex marriage. Litigation followed over parentage, custody and visitation.
• On appeal, the First District Court of Appeals took an inventive route: send the case back to decide whether the couple “would have been married” back then, and if so, apply Ohio’s non‑spousal artificial insemination statute, R.C. 3111.95(A), to recognize C.E. as a legal parent. The statute traditionally confers parentage on a husband who consents to his wife’s non‑spousal insemination—but by its terms, it applies only to married couples.

The Ohio Supreme Court’s message: read the statute, don’t rewrite it:

• Writing for the court, Justice DeWine held that R.C. 3111.95(A) “by its plain terms” does not apply to unmarried couples, and nothing in Obergefell or Pavan authorizes courts to retrofit marriages to unlock marital benefits like the insemination statute’s presumption of parentage. Those decisions guarantee equal access to marriage and its “constellation of benefits” for couples who are married — not a judicially crafted path for couples who were not.
• The court also took a practical swipe at the First District Court’s “would have been married” test: How, exactly, are trial judges supposed to divine whether a couple would have tied the knot? Engagement tokens and moving in together may show commitment, but they do not prove an alternate‑reality wedding actually would have happened. The court warned that this approach veers toward resurrecting common‑law marriage, which the General Assembly abolished in 1991 herein in Ohio.

Procedural wrinkles and opinions:

• The majority of the Ohio Supreme Court reversed and remanded for the appellate court to address remaining issues it had set aside. Chief Justice Kennedy and Justices Fischer, Deters, Hawkins and Shanahan joined Justice DeWine’s opinion. Justice Brunner concurred in judgment only, emphasizing that the appellate court had decided the case on an argument not preserved below.

Why this matters:

• For families formed before marriage equality — or for unmarried couples today — the decision underscores that Ohio’s statutory parentage pathways still turn on status and procedure: birth, adoption, acknowledgments and agreements recognized by law. Courts won’t back‑date a marriage to shoehorn a case into R.C. 3111.95(A); if a couple is not married, that statute is off the table.

Practical takeaway for practitioners:

• For clients building families via assisted reproduction, plan the legal architecture early: consider second‑parent adoption or explicit, enforceable agreements that fit within Ohio’s existing framework. Where the relationship status is unmarried, rely on tools the statutes already provide — don’t bank on a court inventing a marriage after the fact.

Bottom line

• The Ohio Supreme Court didn’t weigh in on whether the law should evolve — it said that isn’t the judiciary’s job in this case. If R.C. 3111.95(A) is to cover unmarried partners, lawmakers will have to say so. Until then, the state’s message to creative litigants is clear: no hypothetical weddings, no retroactive rings and no statutory time travel!