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This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.
BY JENNIFER ROBACK MORSE
Posted on mercatornet.com on April 22, 2015.
The Ruth Institute, a non-profit organization dedicated to healing the American family from the structural injustices of the sexual revolution headed by Dr Jennifer Roback Morse, in collaboration with Sharee Langenstein, an Illinois attorney, has submitted an Amicus brief to the US Supreme Court about same-sex marriage. Here is a selection from the brief.
What is the public purpose of marriage?
“Marriage is society’s primary institutional arrangement that defines parenthood. Marriage attaches mothers and fathers to their children and to one another. A woman’s husband is presumed to be the father of any children she bears during the life of their union. These two people are the legally recognized parents of this child, and no one else is.”
In 2003, following the decision in Goodridge v. Department of Public Health, Massachusetts became the first state to require legal recognition of same-sex unions. Since then, public discourse on the nature of civil marriage has been widespread. Those who would completely dissociate modern society from the historical and natural definition of marriage have not addressed the far reaching legal ramifications of removing marriage’s gender requirement. Of particular concern to amici are: the inevitable denigration of the legal status of natural parents; the loss of children’s rights to know their natural parents; and the severance of the biological definition of “parent” from its legal definition, all of which are inevitable should this Court find in favor of Petitioners.
The law regarding same-sex relationships has changed radically over the past twenty years, and in an effort to help foster these changes, Courts have attempted to define marriage outside of its historical and generative context. For example, in Goodridge, the Court asserted that,
“[w]hile it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”
[US District Court Judge Vaughn Walker] in Perry v. Schwarzenegger (2010), defined marriage this way:
“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.”
What these Courts and others fail to explain is why a state has any interest at all in the private feelings and commitments of adults without concern for the welfare of the children such relationships sometimes produce. The purposes of marriage proposed by these Courts are not really public purposes at all.
Marriage and the welfare of children
The Goodridge and Perry Courts, as well as any other Court that endeavors to sever the procreative significance of marriage from its public purpose, are wholly and unequivocally wrong. As observed by amicus Morse:
“[N]ot every marriage has children. But every child has parents. This objection [that not all married couples have children] stands marriage on its head by looking at it purely from the adult’s perspective, instead of the child’s... It is about time we look at it from the child’s point of view, and ask a different kind of question. What is owed to the child?
“Children are entitled to a relationship with both of their parents. They are entitled to know who they are and where they came from... but children cannot defend their rights themselves. Nor is it adequate to intervene after the fact, after harm already has been done. Children’s relational and identity rights must be protected proactively. Marriage is society’s institutional structure for protecting these legitimate rights and interests of children.”
Once marriage is stripped from its concern with the welfare of children, nothing remains of a genuinely public purpose. Marriage becomes little more than a government registry of friendships, which is, arguably, none of the public’s business.
A few judges have looked at the historical and social connotations of marriage and have correctly defined it to include the legal connection between parents and children. Unfortunately, such judges are often in the minority. For example, Massachusetts Supreme Court Justice Cordy, in his Goodridge dissent, stated that marriage provides:
“the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other.... [A]side from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.”
The majority opinion in the Goodridge decision illustrates the inevitability of that chaos. On the one hand, the Court makes the connection between the definition of marriage and the definition of parenthood abundantly clear: “Exclusive marital benefits that are not directly tied to property rights include the presumptions of legitimacy and parentage of children born to a married couple.”
On the other hand, the Court confuses the issue by referring to presumptions of “legitimacy” and “parentage,” instead of the presumption of “paternity” that has existed in common law for centuries. This shift is not merely semantic, but is instead a sleight of hand that inevitably results in the disenfranchisement of parental and familial rights. Massachusetts law now creates parenthood within a marriage, where formerly the law merely recognized it.
Legal separation from natural parents
In opposite-sex relationships, if a woman becomes pregnant, her husband is almost always the natural parent of her child. In same sex relationships, however, the spouse of the pregnant woman never is.
The same-sex partner of a biological parent is the legal equivalent of a step-parent. Like any other step-parent, the same-sex partner of a biological parent has no genetic connection to the child. When a child is born to a parent who is married to someone of the same sex, the partner of the parent is and should remain a legal stranger to the child unless and until an adoption proceeding is brought, a best interests hearing is held, and an adoption decree is entered. If the second natural parent is fit and has not surrendered parental rights, such a decree is, and should remain, prohibited by law.
The legal presumption of “parentage” rather than “paternity” serves as the vehicle through which the child becomes legally separated from his or her natural parents. Parental rights are vested in unrelated persons though neither a formal adoption proceeding nor a corresponding “best interests” hearing, (which serves as a Constitutional safeguard), has ever been conducted by any court.
Should this Court rule in favor of Petitioners, the chaotic presumption of parentage favored by Goodridge would be forced upon all 50 states, all US territories, and would give a Constitutionally impermissible advantage in parentage actions to persons who have no genetic connection to a child, without deference to the Constitutional rights of the child’s natural father or natural mother.
Dr Jennifer Roback Morse is the Founder and President of the Ruth Institute, a non-profit organization committed to inspiring survivors of the Sexual Revolution. She is the author of “Love and Economics: It Takes a Family to Raise a Village,” “101 Tips for a Happier Marriage”, “Smart Sex: Finding Life-long Love in a Hook-up World” and "The Sexual Revolution & Its Victims" (2015).