Birth Certificates, Fatherhood, and Same-Sex Marriage: Sotomayor v. Sotomayor

It did not take long for marriage revisionism to show its hostility to the relationship among children, mothers, and fathers. Just a few months after the Supreme Court of the United States ruled that all states must eliminate from their legal definition of marriage the essential involvement of man and woman, conflicts between this redefinition and the fundamental rights of children to be connected to both father and mother are already making their way through the courts.

In these conflicts, children’s rights might seem to enjoy an advantage of priority. Even states that redefined marriage several years ago have left in place the legal incidents of marriage that secure children to both mother and father, preserving distinct inequalities between marriage, man-man “marriage,” and woman-woman “marriage.” As Alabama Governor Robert Bentley observed in an amicus curiae brief filed in Obergefell v. Hodges (a brief to which I contributed),

Marriage equality does not exist in the United States. It cannot be made to exist in law without destroying the rights of children to be connected to their biological parents. No State can afford to do that. Even those States that have extended legal recognition to same-sex couples continue to distinguish between marriage and same-sex “marriage.”

Marriage exists to connect fathers to mothers and children, Governor Bentley reasoned. And given the terrible costs of fatherlessness, states cannot afford to sever the bonds of matrimony from the rights of children.

As a source of his confidence in the persistence of the fundamental norms of the parent-child relationship, the Governor cited Justice Sonia Sotomayor’s opinion in Adoptive Couple v. Baby Girl. In that case, she declared that the “biological bond between parent and child is meaningful” and insisted that the right of a biological parent is “an interest far more precious than any property right.”

Justice Sotomayor thus endorsed longstanding American fundamental rights jurisprudence. Except for a brief experiment in state sovereignty over domestic relations during the antebellum period, American courts have consistently affirmed the common-law understanding of marriage as a pre-political institution, grounded in the fundamental rights and duties of the father-mother-child triad.

Nevertheless, in Obergefell Sotomayor voted with four of her colleagues to require every state to redefine marriage, joining an opinion that pointedly framed the issue as whether same-sex couples’ unions would be “deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” As we all know, same-sex couples do not have children in the same way as naturally married couples. Thus, making the terms and conditions of man-man or woman-woman “marriage” the same as the terms and conditions of natural marriage would require eliminating the incidents of marriage that connect children to their natural parents.

So, which Justice Sotomayor will show up in the next landmark family-law case: the Sotomayor who affirms the “precious” rights and duties of biological parents or the Sotomayor who insists on full equality?

Full Marriage Equality?

The apparent conflict between Sotomayor and Sotomayor seems to hold the answer to the Great Unanswered Question: are we to have full marriage equality or not?

We might learn the answer soon. Two lawyers for Lambda Legal, a sexual-identity advocacy group, now insist that full equality between marriage and same-sex “marriage” must be pushed all the way down to the severance of marriage from the rights of children. In an op-ed titled “It’s not marriage equality until same-sex parents both appear on birth certificates,” they promise to fight in every state to make it so. The lawyers, Camilla Tayor and Kyle Palazzolo, argue that a child’s fundamental right to have legal connections to her natural parents must be made contingent upon the choices of the adults who are involved in her life. If those adults are two people involved in a same-sex “marriage,” then the child’s birth certificate should record those two people as her parents—instead of her actual biological parents.

If the birth certificate will no longer record a child’s biological mother and father, why should the birth certificate list only two parents? If the authors hope to persuade the public that same-sex “marriage” is good for children, why not argue for legal recognition of the child’s biological parents and both same-sex partners who will raise him or her? Surely the fundamental rights of the parent-child triad—those rights that Justice Sotomayor characterized as more precious than property rights—are as deserving of recognition as the novel Court-created privilege of same-sex “marriage.”

Perhaps Tayor and Palazzolo want to avoid three- and four-parent birth certificates for the sake of the child’s emotional and psychological well-being. They correctly note, “Birth certificates are the single most important identity document for a child,” and worry about the stigma that might attach to a child from a legally inaccurate certificate. But the correspondence between a child’s identity and natural parentage is precisely why birth certificates list the child’s actual, biological parents. As embodied beings, our identity is constituted in large part in our biological reality. Each of us inherits (for better and worse) the biological basis for his identity from his father and mother. To record as parent someone who is not the child’s biological parent is to make a permanent misstatement about the child’s identity.

Even adoptive children are, at least initially, legally recognized as children of their own mother and father, and are eligible for adoption only after termination of the rights of one or both biological parents. States can and do issue amended birth certificates after adoption to reflect the change, but as a statutory privilege, not in satisfaction of any constitutional right. Adoptive parents have no constitutional right to become adoptive parents, much less to be recognized as birth parents on a child’s original birth certificate. (The original record of the child’s birth is often preserved, though sealed against public access.) By contrast, biological fathers and mothers enjoy the due process rights that Justice Sotomayor characterized as “precious,” among which is the right to be recognized as father or mother until that status is terminated lawfully.

Eliminating Fathers

In a narrow class of cases the law has long tolerated, or even sanctioned, a particular misstatement about the child’s father. The law presumes that the husband of the birth mother is the father, even though this is sometimes untrue. This presumption of paternity keeps the child’s rights bound up in the marriage, preserving for the sake of the child the legal connection between marriage and parentage in cases where the the biological parents have failed to preserve the biological connection between marriage and parentage by violating the marital norm of fidelity.

Clearly, the presumption of paternity cannot apply to same-sex couples. It cannot apply to two men, because neither man will be a birth mother. And the presumption of paternity cannot apply to two women, because it is impossible for either of them to father a child.

So, Taylor and Palazzolo recast the rule as a “spousal presumption of parentage.” This is a sleight of hand. There is no presumption of parentage in the law—only of paternity. Yet this rhetorical trick is actually quite revealing. It shows how hostile the same-sex marriage agenda is to the rights of children to be connected to their fathers. A presumption of parentage applied to a birth mother’s “spouse” in a same-sex partnership would necessarily require the elimination of the biological father’s parental rights without preserving the fiction of marital fidelity. And unlike a presumption of paternity, which requires substitution of the husband for the biological father and therefore maintains the office of father in the child’s life, this novel presumption of parentage would necessarily eliminate the office of father from the child’s life entirely.

This is what “marriage equality” requires, the authors insist. And this is what Justice Sotomayor insisted that governments may not do without infringing the biological father’s due process rights.

Weakening Marital Norms

In their attempt to make their argument appear plausible, Taylor and Palazzolo reveal the distance between same-sex marriage and traditional marital norms. The presumption of paternity is an allowance that the law has long made for the failure of adults to abide by marital norms. It is a corrective for a marriage that has suffered a significant defect: infidelity.

By design, the presumption of paternity reinforces the cultural support for the norm of fidelity in marriage, while protecting the legal status of innocent children who would otherwise suffer from the violation of that norm. It is not an essential incident of a healthy, well-functioning marriage. If all natural marriages were faithful marriages, there would be no need for a presumption of paternity. The fact that Taylor and Palazzolo use their imitation “spousal presumption of parentage” to make same-sex marriage appear similar to natural marriage demonstrates the extent to which same-sex marriage flips the norms of marriage upside down. Their focal case of a same-sex marriage involving children is analogous to a defective case of a natural marriage involving children.

Taylor and Palazzolo also play a more shopworn rhetorical trick. They insist that the purpose of birth certificates is to record legal, not biological, parental status, citing the status of adopted children as evidence. But unlike the rights and duties of natural marriage and natural parentage, which are pre-political and fundamental, the rights and duties of adoptive parent-child relations are creations of positive law. Adoption has always been a special case, has always been available only where the child’s legal connection to one or both parents is already terminated, and has always been regulated by state law and subject to the state’s concession.

As Governor Bentley pointed out in his brief, adoptive parentage mimics natural parentage by preserving distinct offices for father and mother. An adoptive father can step into the office left open by a father who is dead, unknown, or whose paternal rights have been terminated; an adoptive mother can replace a biological mother whose legal connection to the child is broken. The proposal by Taylor and Palazzolo to eliminate the birth record of one or both of the child’s natural parents would do away with one or the other office—father or mother—in every case.

Once the rhetoric and shell games are cooked off, Taylor’s and Palazzolo’s argument boils down to a shameless plea to make the fundamental rights of children contingent upon the sexual choices of adults.

We might hope that Justice Sotomayor would hesitate to discard legal relations that she has characterized as meaningful and precious. But recent history does not bode well. Most federal judges have hastened to give marriage revision advocates whatever they request, even if it means making up fictitious cases and controversies, flouting well-settled legal precedents, and inventing legal issues and misrepresenting the arguments of counsel. Justice Sotomayor and four of her colleagues have either ignored those judicial misadventures or ratified them. Yet if anything can awaken our legal elites from their present delirium, it might be the reality that their equality rhetoric has lifelong consequences for children.

Surely Justice Sotomayor can persuade Justice Sotomayor to see what is at stake.