Justice Kennedy's Hubris

This week on The David Rubenstein Show, retired Justice Kennedy finally admitted the real reason behind his Obergefell ruling, the 2015 Supreme Court decision that created a novel definition of marriage to give legal status to same-sex couples.  Kennedy said, “It seemed to me just wrong that under the constitution, over 100,000 adopted children of gay parents could not have their parents married.  I just thought this was wrong.”

Well, now we know.  The justice’s reasoning had nothing to do with Constitutional principles.  He had an emotional reaction and in his hubris he imposed his private feelings on the nation.

Ironically, the former justice had things exactly backward.  The Court’s unprecedented redefinition of legal marriage harms the very children it was designed to protect -- and indeed, all children.

A free society is possible only if it recognizes certain rights as pre-political.  The state does not create them -- it merely recognizes them.  Chief among those pre-political rights are marriage and family.  In all civilizations, people have known it takes a male and a female to produce a child; thus the core definition of the family was based on biology. 

All that changed with Obergefell. 

The first target was marriage: The only way the state could treat same-sex couples the same as opposite-sex couples was to deny the relevance of biology and redefine legal marriage as a purely emotional bond.  But we have lots of emotional bonds.  So the state claimed the authority to decide which of them qualify as marriage -- based not on biology but on its own legal fiat. 

That was a huge power grab by the state.  Then the same logic was extended to parenthood: The only way the state could treat same-sex parents the same as natural parents was to deny the relevance of biology and reconfigure legal parenthood as merely an emotional bond between an adult and a child.  Thus in 2017, the Supreme Court, citing Obergefell, ordered states to begin listing married same-sex couples on their children’s birth certificate.  The state has claimed the authority to decide which adult-child relationships qualify as family -- based not on biology but on its own say-so. 

Kennedy may have been sincere in hoping Obergefell would protect children, but in reality it robs them of their pre-political rights.  Prior to the 2017 decision, legal recognition of a child’s parents was based on biological relationship.  The state saw its role as merely acknowledging this natural reality.  This is called the “presumption of parentage,” and in most states the law defined parenthood by the woman who gave birth to a child, with her husband presumed to be the child’s biological and legal father.  Their names were put on the birth certificate, which serves as legal recognition of parental rights and responsibilities. 

But when same-sex partners have a child -- whether by divorce, adoption, or third-party reproduction -- that child is not biologically related to at least one of the partners.  So that partner was not listed on the child’s birth certificate. 

Of course, adoption also involves parents who are not biologically related.  But they undergo a long, complex process to attain the same legal status as biological parents.  What homosexual activists wanted was the presumption of parentage so they would not have to go through the adoption process.  And that’s what Obergefell gave them.  As Yale law professor Douglas NeJaime explains, the majority “affirmed a model of parenthood based on chosen, functional bonds rather than biology alone.”

In short, when legal marriage was reduced to an emotional bond formalized by a contract, legal parenthood was reduced to a contract as well. 

And who defines the terms of the contract? The state. 

Until now, the state has been called on to assign parenthood only in rare cases of contested custody, when an adult who is not a biological parent wants parental rights, such as a stepparent, grandparent, or same-sex partner.  The state then asks questions such as: Did the child call this adult “mother”? How much time did they spend together? The court has to decide who counts as a parent on relatively subjective grounds.

What the 2017 ruling means is that, in principle, the state now decides who counts as a parent for all children.  Parental rights and responsibilities no longer belong to biological parents by default but are rights to be distributed at the pleasure of a bureaucratic state.  It will be much easier for government authorities to intrude into the family, make decisions about how children are raised and educated, or even remove them from the home.

Put bluntly, you are now your child’s legal parent only by permission of the state.  And what the state gives, the state can take away. 

Authoritarian governments have always sought to bring the family under greater state control so they can inculcate their own ideology into young minds and create docile citizens.  This is a clue to an important principle -- that families are a crucial means of protecting pre-political rights and limiting the power of the state.  The family is the first of what Edmund Burke famously called the “little platoons” that stand between the individual and an overweening state.

Kennedy is still clueless about the destructive impact of Obergefell. It laid the legal basis for the dissolution of the natural family and its replacement by contractual relationships regulated by an authoritarian state.

And those who suffer most from his hubris will be the nation’s children. 

Nancy Pearcey is professor and scholar in residence at Houston Baptist University and editor-at-large of the Pearcey Report. Her books include Total Truth and Love Thy Body: Answering Hard Questions about Life & Sexuality.

This week on The David Rubenstein Show, retired Justice Kennedy finally admitted the real reason behind his Obergefell ruling, the 2015 Supreme Court decision that created a novel definition of marriage to give legal status to same-sex couples.  Kennedy said, “It seemed to me just wrong that under the constitution, over 100,000 adopted children of gay parents could not have their parents married.  I just thought this was wrong.”

Well, now we know.  The justice’s reasoning had nothing to do with Constitutional principles.  He had an emotional reaction and in his hubris he imposed his private feelings on the nation.

Ironically, the former justice had things exactly backward.  The Court’s unprecedented redefinition of legal marriage harms the very children it was designed to protect -- and indeed, all children.

A free society is possible only if it recognizes certain rights as pre-political.  The state does not create them -- it merely recognizes them.  Chief among those pre-political rights are marriage and family.  In all civilizations, people have known it takes a male and a female to produce a child; thus the core definition of the family was based on biology. 

All that changed with Obergefell. 

The first target was marriage: The only way the state could treat same-sex couples the same as opposite-sex couples was to deny the relevance of biology and redefine legal marriage as a purely emotional bond.  But we have lots of emotional bonds.  So the state claimed the authority to decide which of them qualify as marriage -- based not on biology but on its own legal fiat. 

That was a huge power grab by the state.  Then the same logic was extended to parenthood: The only way the state could treat same-sex parents the same as natural parents was to deny the relevance of biology and reconfigure legal parenthood as merely an emotional bond between an adult and a child.  Thus in 2017, the Supreme Court, citing Obergefell, ordered states to begin listing married same-sex couples on their children’s birth certificate.  The state has claimed the authority to decide which adult-child relationships qualify as family -- based not on biology but on its own say-so. 

Kennedy may have been sincere in hoping Obergefell would protect children, but in reality it robs them of their pre-political rights.  Prior to the 2017 decision, legal recognition of a child’s parents was based on biological relationship.  The state saw its role as merely acknowledging this natural reality.  This is called the “presumption of parentage,” and in most states the law defined parenthood by the woman who gave birth to a child, with her husband presumed to be the child’s biological and legal father.  Their names were put on the birth certificate, which serves as legal recognition of parental rights and responsibilities. 

But when same-sex partners have a child -- whether by divorce, adoption, or third-party reproduction -- that child is not biologically related to at least one of the partners.  So that partner was not listed on the child’s birth certificate. 

Of course, adoption also involves parents who are not biologically related.  But they undergo a long, complex process to attain the same legal status as biological parents.  What homosexual activists wanted was the presumption of parentage so they would not have to go through the adoption process.  And that’s what Obergefell gave them.  As Yale law professor Douglas NeJaime explains, the majority “affirmed a model of parenthood based on chosen, functional bonds rather than biology alone.”

In short, when legal marriage was reduced to an emotional bond formalized by a contract, legal parenthood was reduced to a contract as well. 

And who defines the terms of the contract? The state. 

Until now, the state has been called on to assign parenthood only in rare cases of contested custody, when an adult who is not a biological parent wants parental rights, such as a stepparent, grandparent, or same-sex partner.  The state then asks questions such as: Did the child call this adult “mother”? How much time did they spend together? The court has to decide who counts as a parent on relatively subjective grounds.

What the 2017 ruling means is that, in principle, the state now decides who counts as a parent for all children.  Parental rights and responsibilities no longer belong to biological parents by default but are rights to be distributed at the pleasure of a bureaucratic state.  It will be much easier for government authorities to intrude into the family, make decisions about how children are raised and educated, or even remove them from the home.

Put bluntly, you are now your child’s legal parent only by permission of the state.  And what the state gives, the state can take away. 

Authoritarian governments have always sought to bring the family under greater state control so they can inculcate their own ideology into young minds and create docile citizens.  This is a clue to an important principle -- that families are a crucial means of protecting pre-political rights and limiting the power of the state.  The family is the first of what Edmund Burke famously called the “little platoons” that stand between the individual and an overweening state.

Kennedy is still clueless about the destructive impact of Obergefell. It laid the legal basis for the dissolution of the natural family and its replacement by contractual relationships regulated by an authoritarian state.

And those who suffer most from his hubris will be the nation’s children. 

Nancy Pearcey is professor and scholar in residence at Houston Baptist University and editor-at-large of the Pearcey Report. Her books include Total Truth and Love Thy Body: Answering Hard Questions about Life & Sexuality.