Well, that didn’t take long.
In their march toward the supremacy of sexual-identity rights, proponents of new constitutional and statutory privileges for same-sex couples have already moved on to the post-marriage phase of their expedition. The conquest of civil marriage was a brief stopover. The ultimate destination is still not clearly in view, but there is now no doubt that reaching it requires courts or legislatures to weaken or abrogate legal securities for the fundamental right of children to be connected to mother and father.
The Massachusetts Supreme Judicial Court recently ruled that a woman who lived with a mother at the time of conception and birth has a right to be deemed the second mother though she has no biological connection to the children and was never married to the children’s mother. The claimant in the case, Karen Partanen, filed an equitable complaint asking a Massachusetts trial court to declare her a parent. The trial court dismissed Partanen’s complaint on straightforward grounds: Partanen was not married to the children’s mother, and she is not their biological parent.
But the Massachusetts Supreme Judicial Court sees parentage differently. The court reasoned that neither marriage nor biological parentage is necessary for legal parentage. Instead, being “jointly involved in the children’s lives” makes any two people the parents of those children.
Partanen’s lawyers at the activist organization GLBTQ Legal Advocates & Defenders (“GLAD”) celebrated the decision as a “victory for contemporary families.” Indeed, their account of how this particular family was formed has all the elements that are held up as achievements of the sexual revolution. As GLAD describes things,
Karen and Julie were a[n unmarried] couple for nearly 13 years. They met in Massachusetts, moved to Florida where they purchased a home together, and after a time decided to have children together using assisted reproduction. Together they consented to the procedures, chose a donor, and underwent psychological evaluations. Karen first tried to become pregnant, but when she was unsuccessful, Julie became pregnant. Karen even injected Julie with the semen for the conception of their second child.
It’s a story of sexual liberation in the twenty-first century. And the elements that are missing from the story equally signal the times in which we live: no husbands; anonymous, absent father(s); no regard for the right of the children to know their father(s); and, significantly, no marriage.
What Happened to Marriage?
That last bit is striking, because just last year GLAD argued that the Supreme Court of the United States must force all the states to redefine marriage in part because marital status was necessary to secure the parental rights of same-sex couples. No access to marriage was supposed to mean no access to parental rights. On the surface, then, GLAD’s latest argument looks like an elaborate spin move. Alas, the Massachusetts high court has long shown itself willing to be led in these sorts of dances, though it is supposed to be the guardian of rationality and consistency in law.
Yet this apparent inconsistency was entailed in the redefinition of marriage all along. For all its elaborate reversals and flourishes, this dance moves in a straight line away from all the legal incidents of marriage that connect children to their parents. And though the dancing duos of activists and courts are trampling the rule of law underfoot, law is not suffering the worst of this stomp fest. Children are. Every child has a mother and a father. Every child has a fundamental, pre-political right to be connected to its mother and father. That right is an obstacle to the realization of the totalizing ambitions of those who insist that all of us must affirm the lifestyles of same-sex couples. Therefore, it must be uprooted from the law.
The progression of legal changes that led to the Partanen ruling is instructive. Partanen invoked the presumption of paternity, which has long attached parental rights and obligations to a man who is married to a child’s mother without evidence of actual, biological paternity. The Court ruled in Partanen, “The plain language of the provisions [in the paternity statute] may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”
The plain language of the statute does no such thing. It expressly concerns “adjudication of paternity” and repeatedly refers to the “man” and the “father.” The statute was amended in 1986 to extend the common-law paternity presumption to cover children who are “born to a man and woman who are not married to each other” where the man holds himself out as the father. The purpose of that change was to eliminate the stigma and legal disabilities of children born out of wedlock, whose numbers had vastly increased over the previous decades. And since a narrow majority of the Massachusetts Supreme Judicial Court struck down the natural definition of marriage in 2003, the Court has interpreted the presumption of paternity to apply in certain circumstances to a woman in a same-sex “marriage” with the child’s mother where both women consent. From the combination of those legal changes, it followed that the presumption must be extended to unmarried same-sex partners.
The Presumption of Paternity
The presumption of paternity began in common law as a way to preserve the form and structure of the natural family for the sake of children where a legal fiction was needed. As family law has changed, first to reflect and later to affirm greater varieties of sexual choices by adults, the presumption of paternity and other accommodations to the reality of family breakdown have begun to outgrow in importance the marital and parental norms from which they depart.
Yet it was when marriage was redefined to eliminate the distinction between that-which-is-marriage-by-nature and that-which-is-not that the paternity presumption became a threat to the fundamental, pre-political rights and duties of the natural family. As long as natural marriage and biological parentage are understood as the ideals, and other family structures and parental arrangements are known to be less ideal alternatives, the alternatives can rationally mimic intact, natural marriages and families. But if natural marriage and biological parentage are nothing special, then distinctions grounded in marriage and in biology seem artificial, even arbitrary, and therefore constitutionally suspect.
Consider in this light the legal challenges that same-sex couples have successfully used to eliminate the facts of natural parentage from original birth certificates. In a society that has accepted non-marital birth and artificial reproduction using donor gametes as worthwhile lifestyle options, the father’s spot on the certificate is often either blank or filled with a plausible fiction. But the logic of same-sex marriage entails that the loss of half the child’s biological identity must be obscured by an implausible fiction. We must all pretend that a child really can be born of two mothers without the involvement of a man. In these cases, the child is not consulted.
It was not difficult to foresee that the novel constitutional privilege of same-sex “marriage” would inexorably lead us here. In an amicus curiae brief that I co-authored, the governor of Alabama warned the Supreme Court before its decision in Obergefell v. Hodges that the only way to make same-sex relations and marriage exactly equal in law is to eliminate from law those legal incidents of marriage that connect children to both parents. For this observation and others like it, the governor and other marriage proponents were ridiculed and dismissed as bigots. One reporter included our amicus brief among those of pro-marriage scholars whose arguments he said “run counter to reality.”
Yet in the brave new world of sexual-identity totalization, pro-marriage advocates one day make predictions that “run counter to reality” and a year later marriage revisionists insist that those same predictions must be fulfilled as a matter of justice. (Incidentally, that reporter has not called to apologize. I’m not waiting by the phone.)
Nor is it difficult to see where things will progress from here. According to a news report, Partanen’s lead lawyer openly acknowledged that “she believes the ruling applies to heterosexual parents as well.” And she conceded that it is possible that a non-biological parent “could attempt to gain sole parental rights,” severing the last bonds between a child and her biological parents.
The double maternity two-step is a forced march. The intended destination seems to be greater personal fulfillment for adults. But if we arrive there, what will be left of the rights of children?
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason (Cambridge University Press).