The New States’ Rights: Is Parenthood Defined by Biology or Government?

Apr 17, 2018 by

by  Adam J. MacLeod, Public Discourse:

Same-sex parenting advocates are calling on states’ rights to define the legal relationship between parent and child. What they seek is the power to write the record of a child’s origins and to determine a fundamental aspect of a child’s identity.

Advocates of sexual-identity liberties are increasingly enlisting jurisprudential notions of judicial supremacy, state sovereignty over domestic relations, and a positivist conception of familial rights and duties, all of which have been used in American history by enemies of liberty.

Memorably, Chief Justice Roberts chided his colleagues for their “extravagant conception of judicial supremacy” in his dissent in Obergefell v. Hodges. “[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia,” he marveled, “for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” The new family law expands the power of courts in unprecedented ways.

Less attention has been paid to the expansion of state power over the family. The Supreme Court cannot rewrite all of family law by itself. But family law must be rewritten to conform to new orthodoxies. So activists are asking lower courts to expand state power over the family. Proponents of redefinition are the new states’ rights activists.

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