President Obama has made fatherhood a theme of his second term. In May of this year, while delivering the commencement address at Morehouse College, the president admonished the young men in attendance to set “an example for what it means to be a man.” In particular, “Be the best father you can be to your children, because nothing is more important.” He lamented that he did not know his own father. He disclosed that his own ambition is “to break that cycle where a father is not at home, where a father is not helping to raise that son or daughter,” and he resolved to be a “better father” himself.
In June, the White House announced that it was launching “a national conversation on fatherhood and personal responsibility.” The conversation commenced with an event celebrating “five outstanding fathers.” The president explained that
When fathers are absent—when they abandon their responsibility to their kids—we know the damage that does to our families. Children who grow up without a father are more likely to drop out of school and wind up in prison. They’re more likely to have substance abuse problems, run away from home, and become teenage parents themselves.
On the other hand, the president said, “We all know the difference that responsible, committed fathers like these guys can make in the life of a child.”
These are welcome statements from our most prominent citizen. The social experiment of genderless parenting has failed. Extensive studies have affirmed that fathers are essential to the enterprise of parenting. And the costs of encouraging fatherless families have proven to be very high. So, the president’s enthusiasm for preaching the virtues and importance of fatherhood is an encouraging development.
Unfortunately, the president has undercut this message with his own policies. In particular, his expressed interest in fatherhood is difficult to reconcile with his administration’s attack on fatherhood during the last term of the Supreme Court of the United States. Perhaps no one in the administration appreciates that, when it successfully argued that the Court should redefine marriage in United States v. Windsor, the administration helped to eliminate the legal office of fatherhood from federal law.
The Elimination of Fatherhood from Law
In order for a government to call a same-sex couple's relationship a “marriage,” that government must eliminate the offices of father and mother from law, because it must eradicate the requirement of sexual complementarity. To create same-sex “marriage” in law is to remove from law the requirement that one man and one woman are participating in every marriage.
When governments redefine marriage to eradicate the office of fathers, they must renounce any interest in holding fathers to their obligations. States that have promulgated same-sex marriage laws have not yet fully confronted this difficulty. Instead, they have proceeded as if both man-woman marriage and same-sex marriage can coexist in law. Indeed, those states define same-sex “marriage” with reference to one-man-one-woman marriage.
New York’s marriage statute, which the Obama administration celebrated and relied upon in the Windsor case, reads, “It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law.” This definition of same-sex “marriage” rests upon the definition of marriage as a one-man-one-woman union, the very definition that it eradicates and replaces. The resulting incoherence obscures the plain logic of the new definition of marriage—namely, that fathers and/or mothers are dispensable.
It is difficult to understand why this simple fact has escaped the Obama administration’s attention. The patricidal logic of same-sex “marriage” has been on full display for a decade now, since the first case to result in a right to redefine marriage, Goodridge v. Department of Public Health.
In that case, the Massachusetts Supreme Judicial Court ruled that the Commonwealth of Massachusetts has no interest in regulating marriage to promote responsible procreation. And the Court could discern no evidence that the best interests of children are promoted by giving them a right to be raised and supported by the man and woman who gave them life. Instead, the court insisted that no particular family structure is optimal, and therefore marriage need not include both a man and a woman.
On this logic, the Commonwealth of Massachusetts now has no interest in recognizing fathers or mothers. Indeed, to promulgate same-sex marriage laws is to eliminate fatherhood and motherhood from all aspects of public life, from birth certificates, to legal adoption, to child support. To the extent that the categories of “father” and “mother” remain in law they can only do so only arbitrarily, and therefore unconstitutionally.
To take one important example, the presumption of paternity now persists in Massachusetts law without reason. If there is no link between fathers and procreation, or between fathers and parenting, then to hold a man responsible for a child to which his wife gives birth is to discriminate arbitrarily against that man. The Goodridge court insisted that the Commonwealth makes no presumption that a child is born to a married mother and father. Instead, Massachusetts “facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.”
So, when a woman gives birth, there is no reason to presume that the other parent is her husband. There is no reason to presume that the other parent is a man. Indeed, there is no reason to presume the existence of another parent. Put differently, if there is no rational relationship between marriage law and procreation or child-rearing, as the Goodridge court ruled, then there is no rational basis for the presumption of paternity.
The Link between Fathers and Marriage
The logic of same-sex “marriage” laws makes it difficult for the political community to affirm the importance of fathers in particular. Dissenting in the Goodridge case, Justice Cordy explained the problem this way:
Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child.
Even if the biological contribution of a father gives rise to a moral obligation to act like a father, the political community must have some way of identifying the father and must create some incentive for those men who are disinclined to honor their moral obligations.
Though marriage—one-man-one-woman marriage—solves this problem imperfectly, it is the only institution capable of solving the problem. And the problem must be solved. “Paramount among its many important functions,” Cordy wrote in his Goodridge dissent, “the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized.”
Justice Cordy continued:
Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined (particularly in the modern age of widespread effective contraception and supportive social welfare programs), but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.
The civic office of father imposes on biological fathers various legal obligations to their children, and it does so with a low information cost. It makes it unnecessary for men and women to negotiate responsibility for every child that might be conceived by them. Children who are born as a result of in vitro fertilization, whether to conjugal couples, to same-sex couples, or to polygamous groupings, are generally born into families in which responsibility for them has already been sorted out. That’s not always true of heterosexual sex (e.g. a one-night stand). Unless the law is ready to impose a pre-packaged set of obligations on an officially recognized office for fathers, and to create incentives for fathers to step into that office, it is far less likely that fathers can be held to the moral obligations that they create when they procreate.
If our political communities are to abolish fatherhood from marriage laws, is it realistic to suppose that men and women will negotiate terms of responsibility before having sex, or that men will even agree to such responsibility? Especially where, as in Massachusetts and New York, the state has disclaimed any interest in the fruit of conjugal unions and the law is being used to tear down religious and cultural commitments to conjugal marriage as a unique ideal, what makes us suppose that men will stick around to raise their children? Given the well-documented pathologies that correlate strongly with fatherlessness, do we want our laws to state overtly that fathers are not important?
In his Goodridge dissent, Justice Cordy sounded a warning that the Obama administration would do well to consider:
Aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.
Do we want fathers to stay around and raise their children? Or are we prepared to accept the chaos of fatherlessness?
The fact is, we cannot afford to ignore man-woman sexual pairings because we cannot leave fatherhood to chance. We must regulate these relationships somehow and give them a status of privilege and approbation. In order to regulate and affirm them, we must come up with a name for these relationships, which are the only ones capable of naturally producing children.
Now what shall we call them?
Adam MacLeod is associate professor at Faulker University's Thomas Goode Jones School of Law.