In re L.E.S. (2026-Ohio-1449): R.C. 3111.95(A) Cannot Be Retroactively Extended to Unmarried Same-Sex Partners via a “Would Have Been Married” Test

1. Introduction

In re L.E.S., E.S., and N.S. is an Ohio parentage dispute between two former partners, P.S. (the birth mother) and C.E. (the non-biological former partner). While in a long-term relationship (2003–2015), P.S. conceived and gave birth to three children through artificial insemination. After the relationship ended—shortly before the United States Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges, 576 U.S. 644 (2015)—C.E. sought to be legally recognized as a parent.

The central legal issue became whether Ohio courts may apply R.C. 3111.95(A) (the “non-spousal artificial insemination statute”) to an unmarried same-sex partner by asking whether the couple “would have been married” absent Ohio’s former ban on same-sex marriage. The First District Court of Appeals said yes and remanded for that inquiry; the Supreme Court of Ohio reversed.

2. Summary of the Opinion

The Supreme Court of Ohio held that R.C. 3111.95(A) does not apply to couples who were unmarried at the time of insemination, and that neither Obergefell v. Hodges nor Pavan v. Smith, 582 U.S. 563 (2017), authorizes Ohio courts to judicially modify the statute to cover unmarried couples retroactively under a “would have been married” standard. The court further criticized the “would have been married” inquiry as unworkable and as effectively reviving common-law marriage—contrary to R.C. 3105.12(B)(1).

The court reversed the court of appeals and remanded for consideration of remaining assignments of error (custody/visitation issues not reached by the First District).

3. Analysis

A. Precedents Cited (and Their Role)

  • Obergefell v. Hodges, 576 U.S. 644 (2015)
    Influence: The First District treated Obergefell as requiring a retroactive accommodation for couples prevented from marrying. The Supreme Court of Ohio read Obergefell more narrowly: it invalidates exclusions from marriage and requires recognition of lawful out-of-state same-sex marriages, but it does not itself create a mechanism for courts to deem people married retroactively when they never married.
  • Pavan v. Smith, 582 U.S. 563 (2017)
    Influence: The Supreme Court of Ohio treated Pavan as an “equal treatment once married” case. Arkansas gave a benefit to married parents (listing the husband on a birth certificate). Under Pavan, that benefit must be equally available to married same-sex spouses. But Pavan does not require extending marriage-linked benefits to unmarried partners.
  • Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty. Commrs., 1 Ohio St. 77 (1852)
    Influence: Cited for the separation-of-powers baseline: courts execute statutes unless a “clear incompatibility” with the constitution requires otherwise. The majority used this to frame the First District’s approach as an improper judicial rewrite absent controlling constitutional command.
  • State v. Townsend, 2020-Ohio-5586
    Influence: Used to dispose of an argument suggested by the concurrence—that the First District should have been reversed for reaching an unpreserved issue—because P.S. did not present that procedural point as a proposition of law in the Supreme Court of Ohio.
  • Nestor v. Nestor, 15 Ohio St.3d 143 (1984); Umbenhower v. Labus, 85 Ohio St. 238 (1912); Markley v. Hudson, 143 Ohio St. 163 (1944); Leibrock v. Leibrock, 107 N.E.2d 418 (1952)
    Influence: These common-law marriage authorities were used comparatively. The majority reasoned that the First District’s “would have been married” test would replicate the same evidence and inferential work associated with proving a historical common-law marriage—precisely what Ohio abolished by statute.
  • Kalish v. Trans World Airlines, Inc., 50 Ohio St.2d 73 (1977); Greenlaw v. United States, 554 U.S. 237 (2008)
    Influence (concurrence): Justice Brunner emphasized appellate restraint and issue preservation, arguing the First District erred by deciding the case on an argument not presented below.
  • In re Parentage of M.F., 312 Kan. 322 (2020); In re Bonfield, 2002-Ohio-6660; Rowell v. Smith, 2012-Ohio-4313
    Influence (concurrence): These authorities illustrated (1) alternative conceptualizations of parentage for same-sex couples (“legal fiction of biological parentage”) and (2) that parenting orders (custody/visitation) can sometimes exist without a formal parentage determination.
  • Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal. 2010); Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Garden State Equality v. Dow, 434 N.J.Super. 163 (2013)
    Influence: Cited in a factual/legal landscape footnote to show same-sex marriage was available in various jurisdictions before Obergefell, reinforcing the majority’s point that the parties could have married elsewhere but did not.

B. Legal Reasoning

1) Statutory text controls. The court began with Ohio’s “elaborate statutory scheme” for determining parentage. Under R.C. 3111.95(A), the benefit (treating the consenting spouse as the natural parent) is explicitly conditioned on the mother being a “married woman” and the consenting party being her “husband.” The majority treated the “married” condition as dispositive: whatever gender-neutral reading might be compelled for married same-sex spouses after Pavan, the statute does not extend beyond marriage.

2) Obergefell/Pavan do not compel a retroactive, marriage-substituting remedy. The majority drew a sharp line between:

  • Equal access to marriage and equal benefits once married (what Obergefell and Pavan require), and
  • Judicial creation of marital status retroactively for those who were not married (what the First District’s remand would enable).

Because the statute’s gateway is marital status, and because the parties never married (including in jurisdictions where it was available), the court held there is no federal constitutional instruction to override the marriage condition and create a new “unmarried-but-treated-as-married” class for parentage purposes.

3) The “would have been married” inquiry is both administratively unworkable and structurally improper. The majority emphasized that trial courts are ill-suited to decide counterfactual histories: whether a couple would have married if law and circumstances were different. The inquiry invites speculation, especially amid contested factual narratives about intentions and events. The court treated this as a practical reason to reject the doctrine, but also a deeper institutional critique: it effectively requires courts to confer marital status without compliance with Ohio’s formal marriage requirements.

4) The test conflicts with Ohio’s abolition of common-law marriage. Ohio statutorily prohibited common-law marriage after October 10, 1991. See R.C. 3105.12(B)(1). By comparing the evidence relevant to common-law marriage (cohabitation, reputation/holding out, “meeting of the minds”) to the evidence the First District would consider, the majority concluded that the remand would “largely resurrect” the abolished doctrine. That move, the court held, is beyond judicial power.

Procedural overlay (concurrence): Justice Brunner would have reversed on issue-preservation grounds under Kalish v. Trans World Airlines, Inc. and Civ.R. 53(D)(3)(b)(iv), reasoning that the R.C. 3111.95(A) theory was not properly raised in the juvenile court. The majority did not adopt that rationale, noting P.S. did not preserve that argument in the Supreme Court of Ohio briefing (citing State v. Townsend).

C. Impact

  • Confines R.C. 3111.95(A) to marital relationships (as written). The decision makes clear that Ohio courts cannot extend the statute to unmarried partners—even when the relationship predates Obergefell and even when the parties claim they would have married but for prior legal barriers.
  • Rejects counterfactual marriage findings as a path to parentage. Lower courts are directed away from “retroactive marriage” constructs that would unlock marriage-linked parentage presumptions or parentage-by-consent provisions.
  • Channels relief to existing legal mechanisms or legislative change. The opinion implicitly signals that durable solutions for non-marital intended-parent situations (especially in assisted reproduction) must come from (a) adoption pathways, (b) contractual/custody frameworks where allowed (as the juvenile court attempted via shared parenting concepts), or (c) legislative updates to parentage statutes.
  • Likely increases pressure for statutory modernization in assisted reproduction. By acknowledging the “disconnect” noted by the juvenile court (and echoed in the concurrence), the decision may accelerate calls to revise Ohio’s parentage laws for families formed through assisted reproductive technology outside marriage.

4. Complex Concepts Simplified

  • Parentage vs. custody/visitation: “Parentage” is legal status (who the law recognizes as a parent). Custody/visitation concerns decision-making and time with a child. A person may seek visitation without being a legal parent in some circumstances (as referenced by In re Bonfield and Rowell v. Smith).
  • R.C. 3111.95(A) (non-spousal artificial insemination statute): Despite the label used in the opinion, the operative condition is marriage: if a married woman is inseminated with donor sperm and her husband consented, the husband is treated as the natural father.
  • Gender-neutral application after Obergefell/Pavan: Courts may sometimes interpret gendered terms (“husband”) to include same-sex spouses to avoid unconstitutional unequal treatment of married couples. But that does not erase separate statutory requirements like “married.”
  • Common-law marriage: A marriage recognized without a license/ceremony, proven by conduct and mutual intent. Ohio abolished it after 1991 (R.C. 3105.12(B)(1)), requiring formal solemnization.
  • “Would have been married” test: A counterfactual inquiry asking what the parties would have done under a different legal regime. The court rejected it as speculative and as a backdoor form of common-law marriage.
  • Waiver/forfeiture on appeal: Appellate courts generally review issues raised below; failing to object to a magistrate’s conclusions can bar appellate review under Civ.R. 53(D)(3)(b)(iv). The concurrence viewed this as central; the majority treated that procedural argument as not properly presented to it.

5. Conclusion

In re L.E.S. establishes a clear constraint on Ohio parentage litigation in the post-Obergefell era: courts may not retroactively extend marriage-conditioned parentage statutes to unmarried couples by finding they “would have been married”. The decision reinforces textual statutory interpretation, limits constitutional analogies to what Obergefell v. Hodges and Pavan v. Smith actually decide (equal marriage access and equal benefits for those who are married), and safeguards Ohio’s legislative abolition of common-law marriage under R.C. 3105.12(B)(1).

Practically, the opinion leaves many families formed through assisted reproduction outside marriage to seek protection through non-parentage mechanisms (where available) or through legislative reform—rather than through judicially created retroactive marriage substitutes.