Same-sex marriage is often touted as a harmless expansion of individual liberty. Yet the legal redefinition of marriage to include same-sex couples has far from innocuous consequences, particularly with regard to children’s well-being and religious liberty. Redefining marriage also strikes at our fundamental liberties in deeper though less obvious ways.
A crucial aspect of liberty is respect for subsidiarity—in particular, recognition that the family, based on marriage, is a pre-political community with natural and original authority over its internal affairs, especially the education and upbringing of children. Redefining marriage in law to include same-sex couples undermines the principled basis for the primacy of parental childrearing authority by obliterating the link between marriage and procreation as well as the norm of conjoined biological parenthood that conjugal marriage laws help to foster. What was once almost unanimously understood to be a normative ideal—the intact biological family composed of married mother and father with their biological children—is now culturally (and to a large extent legally) demoted to being merely one among an increasingly wide variety of family forms.
This essay explores the implications for parental authority and subsidiarity of this promotion of new family forms. Tomorrow, I provide a principled case for the primacy of parental childrearing authority.
The view of marriage as a mere creature of the state to be redefined at will goes hand in hand with the idea that children “belong” primarily to the state, which then delegates (limited) childrearing authority to whomever the state defines as the child's parents.
We see this trend in Canada, where the 2005 bill redefining marriage to include same-sex partnerships replaced the term “natural parent” with “legal parent” throughout Canadian federal law. Similarly, in at least nineteen US states as well as the District of Columbia, same-sex partners can now both be listed as parents on a child's birth certificate, substituting politically correct legal fiction for the implacable (hetero)sexism of biological reality.
We also see the state encroaching on parental authority in order to enforce the new orthodoxy regarding sexual orientation and gender identity. “Equality” requires teaching that all family forms are equally good, and public schools do this by introducing “diversity-oriented” activities and readings - including books like Mommy, Momma and Me – across the curriculum.
California, New Jersey and the District of Columbia have made it illegal to give counseling to minors who have sexual-identity issues that in any way discourages them from fostering those tendencies, regardless of whether or not the child would like to receive such counseling, and regardless of whether or not those issues seem to stem from earlier traumas such as sexual abuse. Similar bills are pending in fifteen other states. School guidance counselors are also frequently connected with Gay-Straight Alliances and similar organizations, often placing confused teenagers in contact with such organizations without the consent or even knowledge of the parents.
In a particularly sad Massachusetts case, which I learned about from the parents involved, a teenager was sent by his guidance counselor to a gay youth organization. The organization then turned him against his family and encouraged him to stop seeing the therapist he had been seeing since childhood to deal with the effects of abuse by an older bully in school. As things escalated he was effectively kidnapped by the school guidance counselor and then taken from his home by the Department of Children and Families, without the parents ever having even been accused of abuse or neglect. The boy was eventually returned home after a second social worker investigated the case and deemed the parents to be exceptionally responsible and loving.
There is reason to believe that what happened to this family was not an isolated incident. At their booth at the Massachusetts Gay Youth Pride Parade, Department of Children and Families officials boasted about how they routinely manipulate standard processes to remove children with sexual-identity issues from the homes of conservative and Christian parents.
The ideology that would justify this sort of intrusive behavior on the part of the state was trumpeted by Melissa Harris-Perry in an MSNBC promo spot a couple of years ago. Harris-Perry claimed that “we have to break through our kind of private idea that kids belong to their parents or kids belong to their families and recognize that kids belong to whole communities.”
Her claim reflects the troubling but not uncommon view that the education of children, particularly their formal education, is first and foremost the task of the state rather than parents.
This idea is echoed in the pro-same-sex marriage amicus brief submitted to the Supreme Court by historians of marriage, which claims that “states have sought to limit the public’s responsibility for children by looking to married couples to provide support for minor dependents,” implying that married couples are agents of the state to help the larger community to raise its children.
This is effectively the position of political theorists such as Amy Gutmann, Stephen Macedo and others. They deny the primacy of parental educational authority and argue that the state can and should require children to be exposed to values and ways of life that conflict with those they are learning at home, that the state at least in principle has the right to mandate “diversity education” programs even in private schools and home schools, and that parents in principle have no right to opt their children out of such programs, even if they have a moral or religious objection to their content. These theorists would probably applaud, for instance, the law, recently passed in Alberta, which disallows parents from exempting their children from classroom discussions of homosexuality, and which requires all schools, including faith-based schools, to allow pro-homosexual student clubs like gay-straight alliances.
Of course, the views of Gutmann, Macedo, and Harris-Perry are mild when compared with progressive communal experiments like the Israeli kibbutzim of the mid-twentieth century (which broke down within a generation) or the radical communal childrearing scheme proposed by Plato in Book V of the Republic (though whether he proposed it sincerely or as a kind of reductio ad absurdum is a matter of debate).
What all of these approaches have in common, though, is the denial of primary and pre-political parental educational authority. And this same denial is also, strikingly, a key feature of the totalitarian regimes of the past century, both fascist and communist. While Hitler, Mussolini, Stalin, and Mao were hardly following Plato’s blueprint for the perfectly just society, they certainly understood, as Plato did, that the most effective (and perhaps the only) way to inculcate unquestioning acceptance of the regime’s ideals was to educate a whole generation in those ideals from childhood, and to minimize as much as possible any potentially contradictory educational influences, particularly the influence of parents. Just think of the tight state control of education in these regimes and the further indoctrination of students outside of schools in groups like the Hitler Youth, the Maoist Red Guard, or the Soviet Komsomol.
The current German law against homeschooling originated during the Nazi era. Yet despite its questionable pedigree, this law continues to be unabashedly enforced in contemporary Germany. Even when challenged as a violation of parental rights, it was upheld by the European Court of Human Rights in Konrad v. Germany (2006) on the grounds that the state’s interest in integrating children into the larger society trumps the rights of parents—grounds that echo the arguments of political theorists like Gutmann and Macedo. As a result, parents have no choice but to send their children to state-approved schools, even if they believe the environment or curriculum to be harmful.
The story of the Romeike family highlights the injustice of this situation. Uwe and Hannelore Romeike, along with their five children, lived in a southwest German town called Bietigheim-Bissinge, where their three oldest children attended the public schools. All was well until the parents began to notice distressing changes in their children. After further investigation, Mr. Romeike was appalled to find that their son Daniel’s health textbook used foul language to refer to sexual acts, and was concerned more generally that the values conveyed in his children’s classes and readings conflicted with the Christian moral and religious values he and his wife strove to pass on to their children at home.
In response, the Romeikes pulled their children out of the public schools and began educating them at home. A protracted battle with state authorities ensued, including police attempts to enter the Romeikes’ home and bring the children to school by force, along with onerous fines adding up to 7,000 Euros. Fearing imprisonment and loss of custody of their children, the Romeikes moved to the United States where they would be free to educate their children as they thought best. Although their request for asylum was denied—a bad sign with regard to respect for parental rights on the part of the current United States government—they were granted permission to remain indefinitely in the country shortly before their scheduled deportation in 2014.
The Johansson family in Sweden—where homeschooling has also been illegal since 2010—was not so fortunate. In 2009, when seven-year-old Domenic Johansson and his parents were on an airplane about to leave Sweden permanently for India (his mother’s home country), armed Swedish police entered the plane and took Domenic into custody on the grounds that he was homeschooled, despite the facts that school was not in session and that homeschooling was still legal at the time. Social workers also claimed that the presence of some cavities in Domenic’s baby teeth constituted evidence of physical neglect.
Since then, Domenic has lived in a foster home, with state-supervised parental visitation for a mere hour every five weeks. A Swedish court definitively terminated the Johanssons’ parental rights in 2012, primarily on the basis that their “isolation” of Domenic from other children his own age was psychologically harmful. The European Court of Human Rights upheld the decision in January 2015, but the Johanssons have not given up hope. They are bringing a new case to the Swedish courts in the hopes of finally being reunited with their now twelve-year-old son. Dozens of other Swedish families have fled the country in order to be able to homeschool their children.
If Gutmann, Macedo, Harris-Perry and others are correct, and children do belong to the larger community at least as much as they belong to their parents, then the state’s views about the best way to raise and educate children should trump the parents’ views, and there is no principled basis for opposing the sorts of intrusive state actions described above. By treating marriage and family as a mere construct of the state, and denying the normativity of the intact biological family, the majority in Obergefell have effectively enshrined this statist vision of childrearing in our law.
But if the intact biological family is a natural pre-political community – if parents, not the state, have primary and pre-political educational authority over their children – then the family is effectively a little sovereign community within the larger political community, and, like any sovereign community, it has the right to direct its own internal affairs free from coercive external interference (except in clear cases abuse, neglect, or serious threats to public order). It is this latter position that I aim to defend tomorrow.
Melissa Moschella is Assistant Professor of Philosophy at the Catholic University of America. Her book, To Whom Do Children Belong? Parental Rights, Civic Education and Children’s Autonomy is forthcoming from Cambridge University Press.