From courtrooms to medical clinics, from legislatures to school boards, we are witnessing an unprecedented assault on parental authority; with more and more parents helplessly looking on as their traditional prerogatives are parceled out, if not exactly to the state, then to the various medical, educational, and social agencies through which the exercise of sovereignty is diffused in a post-political, technocratic system. I will leave it to the lawyers and the more politically astute among us to determine what if any legal and political remedies there might be and whether it is possible to carve out a space of parental rights as a protective hedge against this strange new, diffuse totalitarianism. However, as a precondition for any effective remedy I think it is important to try to understand as far as possible what this assault really amounts to.
The first thing to be said is that parental authority and parental rights are not the same thing; indeed here, as in many other things, the primacy of rights thinking testifies to a more general crisis
of authority. Conceptions of parental rights can differ somewhat depending upon whether one thinks of rights negatively as an immunity from coercion or interference in the rearing of one’s children, or positively as an entitlement to make decisions on behalf of one’s children—a shield or a weapon, as Elizabeth Kirk puts it. However necessary it may be to protect such prerogatives against a political order that is constitutively hostile to them, to confuse these with parental authority would be to confuse authority and power. Parental authority signifies something altogether more basic, which we can see by briefly considering the nature of authority in its distinction from power, at least power in the modern sense of force.
First, authority, properly understood is inherently symbolic. It points beyond itself and in so doing makes manifest a real order that is true, good and beautiful, an order upon which its own nature as authority depends. Second, as symbolic of the real, authority and the kind of power derived from it are fundamentally different in their operation from power in the modern sense of force, mechanical or coercive. In contrast to a force that operates mechanically from without, the authority conferred by a real order of truth operates from within, intrinsically as well as extrinsically. By “showing forth all good things that are true,” as Augustine says, it elicits recognition, acknowledgement, and consent from the inside out. A paradigm instance of this is when a child, recognizing his mother, first says “mama.” In eliciting consent, authority does not compel extrinsically by force but obliges
intrinsically by virtue of the self-evidence of its truth and the solicitation of its beauty.
Third, to say that authority represents the true order of things means that to recognize authority is to recognize, acknowledge, and consent to a binding order of reality to which we all belong and in which we all participate. Authority, then, is the foundation of every properly political community and the precondition for a politics that is anything other than civil war conducted by other means. Where there is no acknowledgment of truth, there can be no authority, where there is no authority, there can be no real political community. Where there is no common truth, there can be no common world. Where there is no common world, there can be no common good. And where there is no common good, it is necessary, as Hobbes said, to “to erect a common power to keep [men] in awe.”
In the logic of Obergefell, the only real relations are legal relations, subject to the jurisdiction of the state, which is subject to nothing.
Two final observations before moving on. First, from what has been said about the symbolic nature of authority, it is clear that a crisis of parental authority is really a crisis over the meaning and truth of motherhood and fatherhood, whether these have any toehold in a given and binding order of things, indeed whether there is a given and binding order of things, and thus whether, by extension, the family is a natural or an artificial phenomenon. Second, authoritarianism and totalitarianism are not synonyms, but opposites. Authoritarianism expresses the political order’s rightful, necessary and inevitable concern for the meaning of life, for it premises political order on a given order which it can only receive from a source above and beyond itself. Totalitarianism, the interpretation of the totality of meaning as power, represents a loss of authority and the end of political community. And there is no totalitarianism so total as that which subjects the meaning of nature to political control.
Many of us have been able to anticipate the unfolding crisis of parental authority in general outline if not in exact detail years before it became too obvious to deny because we saw that that in codifying the sexual revolution, the Supreme Court had decided fundamental questions of truth—‘what is’ questions of an irreducibly philosophical and theological nature—by exertions of judicial and political power. Concealing this ideological imposition under the guise of settling contesting rights claims, the court in fact codified new human, or rather posthuman and familial archetypes, whose inner logic necessitates growing technocratic dominance over the family in the forms that I’ve already alluded to.
LGBTQ legal theorists understand this. Under the concept of “channeling,” made famous by Carl Schneider’s 1992 article, “The Channelling Function in Family Law,” they have put the lie to the procedural understanding of law in conventional liberalism and rediscovered its necessary and inevitable philosophical function, its power in shaping social and familial norms, and the “panoply of ways in which family law supports its preferred kinship models—including biological, dual-gendered parenthood—and nudges individuals into conforming to them.”[1]
Courtney Megan Cahill seizes upon this to argue that Obergefell dramatically “unsettles” the traditional channels inscribed in family law and “extends” its implications beyond marriage into realms like procreation and the family. The “animating logic,” she maintains, holds “radical, and truly transformative power” that we have scarcely begun to appreciate, though other progressive scholars had begun to unfold these implications even prior to this landmark decision.[2]
Obergefell and the marriage equality arguments leading up to it deploy equal protection and substantive due process as a kind of “universal acid” to dissolve in law distinctions and differences that matter in reality in order to manufacture legal sameness. After all, the difference between, say, being a man (and not a woman) or being a mother (and not a father) is not principally a difference of function; but a difference of kind—a difference in what things are.[3]
To deny that such differences matter is to put oneself in the odd position of saying that what things are—reality, in other words—does not matter—even as one cannot help but declare what things are.
The Court’s affirmation of “marriage equality” on grounds of equal protection and substantive due process, and we can now add to this the tortured logic of Bostock, not only adopts this functionalist form of reasoning, making “being a man or being a woman” irrelevant to the question of “sameness.” In so doing it eliminates any relevant difference between a married man and woman conceiving a child naturally, two women conceiving a child with the aid of a gamete donor and IVF, or two men employing a surrogate to have a child together, thus determining that assisted reproductive technologies are not to be understood principally as a remedy for infertility but as a normative form of reproduction.
This means that mothers and fathers are not fundamentally natural phenomena integral to human identity and social welfare, but mere accidents of a materialist biology overlaid with social conventions that can be replaced by functionally equivalent roles without loss. This is significant both as evidence of the court’s philosophical function and for the practical consequences that follow from it. Same-sex marriage and transgenderism not only presuppose the biotechnical conquest of human nature, they require the intervention of ARTs in the one case, and so-called gender affirming medical care on the other to bring these new archetypes to fulfillment. From the proposition that assisted reproductive technologies are a normative form of reproduction for whatever combination of men and women that may want them, it is but a short step to the further conclusion that the state has an obligation to secure same-sex couples’ rights and access to these technologies as a condition of their genuine equality, whether by constitutional, legislative, or bureaucratic means. As the Perry Court put it in striking down California’s Proposition 8, “California law permits and encourages gays and lesbians to become parents through adoption…or assisted reproductive technology.”[4]
Obergefell and the cases leading up to it elevate a functionalist conception of the family devised for tragic and unusual cases into an archetype, obliterating the natural norm for the sake of the technologically generated exception. And if “channeling” cannot be escaped, as Schneider said, but rather belongs to the very nature of law, then this so-called disestablishment of the natural family does not leave the state in a neutral position with respect to the family but actively “channels” the nation toward this radical new different archetype.[5] The irony, then, is that “dis-establishment” arguments like Cahill’s, and indeed all arguments on such fundamental matters, are proxy arguments for a philosophy of human nature, for the simple reason that the pretense merely to be adjudicating rights claims, and not deciding truth claims, is false.
The logic of Obergefell requires that “parentage,” family and childhood be reconceived according to this mechanistic archetype. With sexual orientation securing ontological parity and therefore “sameness of condition” between same-sex and opposite-sex couples, the Obergefell Court begins to enumerate the four principles which it claims “demonstrate that the reasons marriage is fundamental under the Constitution applies with equal force to same-sex couples.”[6] The first is “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”[7] The second, “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals,”[8] seems a further specification of the first, as it recalls Windsor’s conclusion that the right is necessary to dignify couples who “wish to define themselves by their commitment to each other.”[9]
In the crucial third principle, the Court insists that protecting the right of same-sex couples to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” invoking Zablocki and Meyer to describe these “varied rights as a unified whole: ‘[T]he right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”[10] “As all parties agree,” the Court adds, “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted.”[11] Denying same-sex couples the right to marry would “harm and humiliate” these children.[12]
The “radical, truly transformative power” of this decision, on Cahill’s interpretation, follows from the logic of these three principles working in concert. First, Obergefell
“acknowledges the reality of gay parenthood, including gay ‘biological’ parenthood…and explicitly extends constitutional shelter to ‘choices concerning…family relationships, procreation, and childrearing.’”[13] This seems to rule out a conservative interpretation of Skinner v. Oklahoma,[14] which holds that the Court’s rejection of Oklahoma’s mandatory sterilization law for certain criminal offenders was really a case about equal protection rather than fundamental rights, a case that “says little about the importance or value of reproduction or the right to reproduce, says nothing about whether that right includes alternative reproductive technologies, and at most prohibits the government from regulating alternative reproductive technologies in unequal ways.”[15] By adopting what David Crawford has called the anthropology of orientation, by affirming “biological” gay parenthood and adverting both to liberty and to the “rights” of childrearing and procreation, Obergefell suggests that “procreation is a fundamental right under the Due Process Clause” and appears to establish constitutional parity “between sexual and alternative reproduction not only with respect to the right to marry, but also with respect to the right to procreate.”[16] As Cahill puts it,
Obergefell conceptualizes procreation in much the same way that it conceptualizes marriage: as both an equality and a liberty right. That it does so is unsurprising, given that it acknowledges more than once the interconnectedness of marriage and procreation, calling them “related rights” that compose a unified whole.[17]
It becomes apparent that these rights function as a proxy for new “natural” archetypes of person and family when we consider what Cahill takes to be their inverse corollary: “the much larger and more radical proposition that the federal Constitution prohibits the state from privileging families that conform to its preferred domestic paradigm—heterosexual, dual-gendered, biological parenthood—and from punishing families that deviate from it.”[18] To put the point positively,
[I]n expanding the definition of family and parenthood beyond their traditional centering in biology, marriage equality jurisprudence de-privileges biology as parenthood’s normative ideal…The direct result of decades of family law advocacy on behalf of functional, non-biological parents, the marriage equality precedent paves the way for disestablishing not just traditional marriage but also the traditional family, understood to be the family comprised of two opposite-sex parents and their biologically related children, sexually conceived.[19]
Let us take Cahill’s advice and consider just how radical this is. To “disestablish” the “biological” family is in fact to sever any remaining bond between natural kinship and the legal definition of family, for natural kinship can add nothing to the definition of family not already contained in function and intent without privileging biology and re-establishing sex stereotyping via the back door. We see in this what is by now a familiar pattern, in which the given realities of nature are reconceived according to the technological possibilities extracted from them. Just as the idea of a sexual identity distinct from one’s sexually differentiated body makes everyone transgender, dispensing with men and women as we have heretofore understood them, just as the idea of sexual orientation makes everyone gay by detaching sexual desire from the body and its natural reference to the opposite sex, so now even the natural family is defined by function and intent, which is to say, that the natural family has effectively been abolished as a matter of constitutional principle.
The “larger and more radical proposition” of Obergefell,
in other words, is to elevate to the status of a constitutional principle Douglas NeJaime’s de facto historical observation: in the name of functional parenthood, “natural” means “legal” rather than “biological,” an assumption that is operational in Cahill as well.[20]
In the logic of Obergefell,
the only real relations are legal relations, subject to the jurisdiction of the state, which is subject to nothing.
Obergefell thus marks the triumph of the state over any order that would precede, limit, or transcend it. Ironically, it is precisely in the claim to have discovered “new dimensions of freedom” that the Court has arrogated to itself the power to define the “concept of existence, of meaning, of the universe, and of the mystery of human life,” concealing its exercise behind a contest of rights. Included in this also is the power, in principle at least, to define each particular family, since the family is simply a legal and not a natural entity.[21]
It is not clear just what principle remains after Obergefell to limit the exercise of that power by the state or its extra-legal technocratic proxies over the long term. It is true that we can never fully succeed in annihilating the authority of reality, that even our attempts to annihilate it entail a grudging recognition of it. It is also true that there remains a bulwark of family law, particularly at the state level, which continues to presuppose the natural family, and there is a burgeoning legal movement advocating the rights of children to knowledge of their “genetic identity,” emphasizing cases which recognize, in the words of Anika Smith, “that the biological bond between parent and child is meaningful.”[22] This is presumably why Cahill attacks the idea of “genealogical bewilderment” along with other justifications for regulating ARTs.[23] Yet if Cahill, NeJaime and other marriage equality legal theorists are correct, “in a world where procreation is a fundamental right, reproductive regulation that burdens any alternative procreator—including mandatory donor and non-anonymity regulation—raises serious constitutional concern.”[24]
Under these conditions, the bulwark of family law is not likely to survive the “new dimensions of freedom” just waiting to be discovered.
It is likely the courts will be called upon to exercise this power more vigorously in the years ahead. “Same-sex marriage,” writes Michael DePrince, “yields same-sex divorce, a concept and practice still evolving in the United States.”[25]
The archetypal decoupling of procreation from sexual union and the former’s disaggregation not only gives rise to a functional and intentional parenthood as a legal and ontological norm, it disperses “social and biological functions” among numerous people, and as we are now discovering, numerous bureaucratic agencies. Courts have faced difficult decisions on this front since the Baby M case in 1988, the first to deal with the validity of surrogacy contracts well before the explosion in the use of ARTs, and it is part of the history of this revolution that the hard cases created by these new technologies have helped to drive the redefinition of family.[26] As these arrangements become more frequent and more complex, both technically and socially, the courts will be required to exercise this power to define and mediate familial relations not as an exception, but more as a matter of course. By the logic of marriage equality jurisprudence, the natural relations of paternity and maternity offer no limit to the exercise of this power, especially when clinical experts conclude that these “functions” are being adequately performed, or when it has been determined that “parents” have limited a child’s capacity for “self-definition”—now regarded as a matter of “public health.” The recent case in the Supreme Court of British Columbia, A.B. v. C.D. and E.F is not unrealistic as a harbinger of the future, and states like California have shown an eagerness to enshrine this principle legislatively. [27] Moreover, the distance between “constitutional permission” for the unregulated use of reproductive technologies and “constitutional promotion” of these technologies, between right and entitlement, is a very short one, both in logic and in law. The technological re-conception of human nature requires
biotechnical intervention for its realization in principle and in fact. By what principle of logic or justice, then, could access to these technologies through publicly regulated health plans be denied to anyone, if such technologies are necessary for the exercise of a universal right protected by the Constitution? By what principle could an insurer extend benefits for fertility treatments to the “medically infertile” while denying them to the “structurally infertile”—another wonderful Orwellian neologism designed to manufacture “sameness” by negating reality.[28]
Nevertheless, the most decisive exercise of this power has already occurred, in the very act of redefining nature. Not only does this act negate any order prior to or higher than the political, thereby absolutizing political order as such; it reconceives that order in mechanistic terms common to both the sexual revolution and the biotechnical revolution, ensuring that political order and political rule are subservient to the extra-political exigencies of a more comprehensive technological order. Indeed, for Del Noce, this unity of what he calls “scientism” and “eroticism” are but twin facets of one “new totalitarianism” defined not as a positive political quest aimed at world domination, but as a negative dynamic of disintegration aimed at all “vertical” realities, all traces of transcendence that would inhibit liberation or limit technological progress. That this progress and liberation requires the negation of the very world we share in common—a fundamental characteristic of totalitarianism Hannah Arendt notes—means that the “common power” that replaces it must insinuate itself into the middle of every human relationship, every nook and cranny of our lives. That this progress both assumes the biotechnical conquest of human nature as its theoretical and practical condition of possibility and requires this conquest for its realization suggests that what has presented itself superficially as the ever-forward march of liberation is in reality the ever-forward march of biotechnology, the triumph of politics over the order of nature and of technology over the human person.
[1] Schneider, “The Channelling Function in Family Law,” Hofstra Law Review 20 (1992): 495, 501–02. See also Clare Huntington, “Family Norms and Normality,” Emory L.J. (2010): 1104–1169; Huntington, “Staging the Family,” N.Y.U. L. Rev. 88 (2013): 589–651; Elizabeth F. Emens, “Intimate Discrimination: The State’s Role in the Accidents of Sex and Love,” Har. L. Rev. 122 (2009): 1307–1402.
[2] Courtney M. Cahill, “Obergefell and the ‘New’ Reproduction,” Minn. L. Rev. Headnotes 1 (2016).
[3] Though “difference of kind” suffices for purposes of this article, the question of the place of sex and gender within classical substance metaphysics and how to cognize the similarity and difference between them is more complicated. There are good reasons for thinking that they might better be thought of according to the category of sort or mode. See D.C. Schindler, “Perfect Difference: Gender and the Analogy of Being,” Communio: International Catholic Review 43 (Summer 2016): 194–231.
[4] Perry, 704 F. Supp. 2d at 1000
(emphasis added).
[5] Schneider, “The Channelling Function,” 529.
[6] Obergefell, 135 S. Ct. at 12.
[7] Ibid.
[8] Ibid.
[9] Obergefell, 135 S. Ct. at 2600 (citing United States v. Windsor, 570 U.S. 744 (2013)).
[10] Obergefell, 135 S. Ct. at 14 (citing Zablocki, 434 U.S. at 384; quoting Meyer, at 399).
[11] Id. at 15.
[12] Ibid.
[13] Cahill, “Obergefell and the ‘New’ Reproduction,” 6 (citing Obergefell, 135 S. Ct. at 2600).
[14] 316 U.S. 535 (1942).
[15] Id., 5, (citing Goodwin at 1089).
[16] Id., 6.
[17] Id., 7.
[18] Courtney M. Cahill, “The Oedipus Hex: Regulating Family After Marriage Equality,” 189.
[19] Ibid., 248–49.
[20]
Ibid.
[21] Planned Parenthood of Southern Pa. v. Casey, 505 U.S. 833, 851 (1992).
[22] Anika Smith, “Meaning, Biology, and Identity: The Rights of Children,” Cath. U. L. Rev. 69.2 (Spring 2020).
[23] Cahill, “The Oedipus Hex,” 236.
[24] Cahill, “Obergefell and the ‘New’ Reproduction,” 8.
[25] Michael S. DePrince, “Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy,” Minnesota Law Review (2015), 799.
[26] See Clyde Haberman, “Baby M and the Question of Surrogate Motherhood,” N.Y. Times (March 23, 2014).
[27] AB v CD and EF [2017] VSCA 338 and [2017] VSC 351 (Can.), in which the Court authorized a 14-year-old girl who “gender identified” as male to undergo hormone therapy at a doctor’s suggestion and against her father’s wishes, and forbade him from referring to the child by feminine pronouns.
[28] See Valerie Blake, “It’s an ART Not a Science: State-Mandated Coverage of Assisted Reproductive Technologies and Legal Implications for Gay and Unmarried Persons,” Minn. J. L. Sci & Tech 12 (2011): 651.
