Obergefell and the Right to Other People’s Children

Sep 22, 2017 by

by Jeff Shafer, First Things:

We’re mournfully familiar with the constitutional right of mothers to be rid of their own prenatal children. Now coming into view is an adult right to possess and have authority over other people’s recently born children. What this means, and portends, merits more consideration than it is presently receiving.

Those who dissent from created verities tend to vacillate between disclaiming the reality they contest and depending on it. After entreating the Supreme Court to rule in Obergefell v. Hodges that marriage is not about children and the procreative union of husband and wife, but instead about adult companionship, affection, and government dignity-conferral, individuals in marriage-licensed same-sex partnerships now demand access to children—because they are married. As the law traditionally presumed that a child born to a wife was the child of her husband, now the law must deem the female partner of a mother to be the child’s other . . . parent. Thus, advocates of marriage-redefinition borrow from the institution they just assassinated the legal standards historically associated with it—as if these could survive the death of their source, and sensibly transfer to same-sex relationships.

Representative of this trend is the case of Pavan v. Smith, ruled on by the Supreme Court earlier this summer. In that litigation, two same-sex female couples in marriage-licensed relationships sued the State of Arkansas. The couples demanded the automatic entry of both women’s names on the original birth certificate of the child born to one woman. The state of course had designated the child’s mother on the birth certificate. The mother’s companion, though unrelated to the child, demanded the same. The plaintiffs argued that Obergefell requires that upending of state policy.

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