After the Supreme Court’s ruling in Obergefell v. Hodges that the Fourteenth Amendment requires state civil marriage licensure to include same-sex partners, what remains of the states’ authority and policy options as to the natural family? For instance, may states continue to employ original birth certificates to record a child’s maternal and paternal progenitors—and exclude persons who are neither? May states still apply the historic presumption of paternity only to men reasonably presumed fathers, and not to women who are not and cannot be fathers? May states adjudicate child custody contests with a default rule in favor of fit natural parents, and against genetic strangers? May states continue to enforce their adoption laws, requiring those who are not the mother or father of the child to adopt before being deemed in law as a parent—even if they’re in a licensed same-sex relationship? In general, may states maintain in their laws the weighty distinction between children’s relation to the male-female unions responsible for their existence and identity, and their non-relation to same-sex couples bereft of mother or father? In what way may state policy continue to acknowledge and honor human meaning as revealed in the originative and perpetual ties of mother and father to child, inscribed in the very physical constitution and visible identity of that child? Does Obergefell stand for a constitutional obligation that states’ family policy subjugate natural relations to adult choices and judicial fiat? Or is its ruling less ambitious?
The near-universal response to Obergefell by courts and regulators has been in keeping with the cultural and conceptual significance of Obergefell’s audacity, rather than its legal significance as a court decision within our particular system of constrained judicial operation. As to the cultural accomplishment, certainly Obergefell
represents an uncontainable viciousness, an invitation to state totalism and inversion of our legal traditions on the autonomy and integrity of the natural family. But this essay instead focuses on the more circumscribed jurisprudential evaluation. That is, not on what the idea and culturally visible enactment of something called “same-sex marriage” portends for the predicates of social organization, but rather as to the authority and reach of a Supreme Court decision in the circumstance of the American system of constitutional law with its numerous jurisdictional, substantive, and interpretive constraints and guidelines.
Though Obergefell did not rule on the constitutional merits of any state law treating paternity, custody, or birth certificates—indeed, the Court majority did not cite to (let alone evaluate the justifications for) even one such law—the Supreme Court itself and lower courts nonetheless, and unaccountably, have proceeded as if Obergefell requires the elimination and replacement of historic state laws grounded in procreative realities.
On [the current analysis of Obergefell], historic family law must be judicially de-sexed, foisting upon it a so-called “gender-neutral interpretation."
Two years after Obergefell, the Supreme Court in Pavan v. Smith ruled that Obergefell compels Arkansas to place two female “spouses” as a child’s parents on that child’s original birth certificate.[1] The Court’s four-page opinion treated Obergefell’s ruling as having already mandated this outcome, thus relieving the Court in Pavan
of responsibility to demonstrate (in fact for the first time) that its ruling is constitutionally required. From that point forward, courts have taken Obergefell to mean that male and female and procreative kinship are mostly unconstitutional categories when found in state statutes whose operation does not authorize presumptive “parentage” to same-sex partners. On this analysis, historic family law must be judicially de-sexed, foisting upon it a so-called “gender-neutral interpretation.”
Thus have numerous courts ruled that state statutes using sex-specific words like “father” must be read to apply to female partners of women giving birth, “reject[ing] the suggestion that a child may only have one mother,” as same-sex spouses now “have a constitutional right to be recognized as the parents of a child born during a marriage.”[2] Courts likewise have ordered birth certificates be rid of their genealogical purpose and design, made instead to register same-sex partners’ custodial powers over children to whom they have neither kinship nor adoptive relation.
The rationales that courts proffer for their rulings invalidating and inverting state law to create parental status for same-sex partners, while severely attenuated from the Obergefell ruling itself and the majority’s explanation for that ruling, nonetheless rely on strategically deposited dicta in Justice Kennedy’s majority opinion. In his opinion he had observed, as a retrospective description of states’ traditional treatment of husband-wife unions, that states “throughout our history made marriage [i.e., the union of husband and wife] the basis for government rights, benefits, and responsibilities.”[3]
Justice Kennedy then in one long sentence presented a litany of illustrative policy categories allegedly included in those “rights, benefits, and responsibilities”—including the likes of “hospital access,” “health insurance,” and “campaign finance restrictions,” as well as “birth … certificates” and “child custody.”[4] He did not elaborate what these policies are or entail. But he suggested that “by virtue of their exclusion from [civil marriage], same-sex couples are denied the constellation of benefits that the States have linked to marriage.”[5]
Justice Kennedy apparently supposed (he offered no sign of having considered the matter) that the “constellation of benefits” presented in state laws were not tailored by those states to the husband-wife character of the union to which they were applied.
The Supreme Court in Pavan proposed that Obergefell had “consider[ed]” and “held” birth certificate laws “unconstitutional to the extent they treated same-sex couples differently from opposite sex couples.”[6] This is mythical. The Court in Obergefell
never considered a constitutional challenge to a state birth certificate law, and never held unconstitutional any laws other than those that did not authorize same-sex couples to be licensed as civilly married.
My thesis, then, is that Obergefell is responsibly interpreted as accomplishing only the innovation presented in its stated ruling: namely, the discovery of a Fourteenth Amendment right to a civil marriage license by same-sex couples if the state has a civil marriage regime to begin with. Obergefell grants same-sex partners no right to automatic child-access, no right to redesign state birth certificate templates, no “gender-neutralizing” of the legal system, and so on. In what follows, I offer ten reasons (from a much longer list) for that thesis.
First.
Once civil marriage is renounced of its form and redefined as gay, rather than incongruously transferring all the procreation-related policies associated with the old form of marriage into the new and gelded relationship-type, we are instead obliged to reject the connection between those old policies and the new design of civil marriage.
One of the oldest maxims of the common law is cessante ratione legis, cessat ipsa lex: where the reason of a rule ceases, the rule also ceases. The Supreme Court elaborated on that venerable rule as follows.
This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons … , the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances .[7]
Suppose geometry scholars were to announce and establish for us that the meaning of square had evolved to include circles. The former rules tethered to a square’s four equal-length sides and right angles would have no application to a circle, which has neither. By receiving the designation “square,” circles do not benefit from geometric laws founded upon right angles and four-sidedness. The effect of circles’ inclusion is instead the opposite: that is, to remove those geometric laws from association with “square” as redefined, as the new form of “square” no longer designates the unique shape that gave rise to the former laws based upon them. “No law can survive the reasons on which it is founded.”
A second reason that Obergefell did not nullify and redesign state domestic relations laws into de-sexed inversions: As a simple matter of procedure, the Supreme Court has no authority to overthrow historic state statutory regimes without ever having a case before it on the question, in which it evaluates each specific policy and then rules on it after hearing from the state governments responsible for their enactment and administration. As the Court has explained, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”[8] It therefore should not be contentious to observe that Obergefell did not topple the states’ historic family law regimes that were not presented, briefed, argued, or even identified. The Court had no such statutes or rules before it, thus naturally gave no attention to the question of abolishing maternity, paternity, and ancestry from state legal cognizance.
When first agreeing to review the Obergefell case, and in setting out the particular questions that would define the scope of its appellate review, the Court never alerted the states that it would be adjudicating the merits of their birth certificate forms and regulations. Hence none of the four states defending their marriage laws in the consolidated cases in Obergefell
(Michigan, Ohio, Kentucky, Tennessee) briefed or argued the validity of their birth certificate statutes. And the Obergefell
majority opinion did not cite or analyze the text, history, application, or state interests present in these statutes, nor otherwise demonstrate their unconstitutionality. Indeed, in the process of explaining its discovery of a right to a civil marriage license for same-sex couples, the majority in Obergefell disqualified procreation—i.e., the way the children who are registered in birth certificates come into existence—from relevance to the Fourteenth Amendment’s required form of civil marriage.
The idea that the Obergefell
majority, merely by dint of Justice Kennedy’s retrospective observation about an array of policies that the states through time had associated (in some unexplained way) with the husband-wife union that Obergefell ruled to be a forbidden definition of civil marriage, thereby not only rendered unconstitutional in one fell swoop all of the statutes containing those policies but concurrently rewrote them to impose obligations antithetical to their text and hostile to their enacted purpose, defies standards of judicial authority and beggars belief. As a right of access to a civil marriage license does not entail a right to claim automatic parentage over a partner’s child or to redesign the template of state vital records that document a child’s birth, mother, and father, the Obergefell outcome hardly resolves the claim raised in Pavan. Yet by proceeding as if Obergefell already definitively resolved the matter, the Court in Pavan spared itself the obligation to explain how the Constitution could require such a rule.
Third. As the limited question of the exclusion of same-sex couples from state civil marriage licensure was the dispute under review in Obergefell, it would have been anachronistic for the Court to have invited or approached the question of whether a myriad of state statutes and common law standards, in a number of different ways associated with marriage on a host of policy concerns, must (or even can) treat identically same-sex and husband-wife couples, when the predicate question of same-sex couples’ access to civil marriage recognition was yet unresolved.
Fourth. In evaluating the asserted constitutional right to a same-sex marriage license, the Obergefell majority did not factor in, or assess this claim in terms of, a concomitant right to upend ancient family law that honors maternal and paternal kinship to children. If indeed same-sex civil marriage licensure is indelibly connected to (for instance) redefining paternity into a disembodied benefit for female partners of birthing mothers, or redefining birth certificates into tokens of state relationship-approval for adults unrelated to the children listed thereon, such that these sorts of policies must apply as attendants to same-sex civil marriage, it would have been necessary for the Court to have included those policy disruptions in its analysis of whether the Constitution commands states to license same-sex couples as married. The Court did not do so.
Fifth. Though disqualifying the generational wellspring of the man-woman union from the Fourteenth Amendment’s required version of civil marriage, the Obergefell majority never explicitly depreciated kinship bonds in themselves or denied the propriety of their unique treatment in law.[9] If deferring to natural parent-child relationships may yet be deemed a priority of state law (as it ineradicably continues to be in human experience, cultural meaning, Anglo-American common law precept, and the state statutes enshrining it), presumably it remains so in constitutional principle as well, as it always has until now. Obergefell did not rescind the Supreme Court’s prior acknowledgments of due process protections for the unique relation of natural parents to their children, nor did it rescind its rulings validating the different legal treatment of men and women in view of their respective reproductive roles, nor disavow the Court’s prior common-sense recognition of the non-fungible nature of, and inherent differences between, men and women.
Sixth. At no point did Obergefell demonstrate that any state’s (let alone Arkansas’s) birth certificate template providing entries for a child’s one father and one mother is a state-generated “benefit of marriage” to begin with. In what way is a child’s birth certificate a “benefit” that states give to adults because they are married? Obergefell
never explained. Which states historically classified a vital record of birth in such a way? By my count, zero. And Obergefell
offered no reason to conclude otherwise. (Arkansas certainly has not done so, as is plain from its statute and the Arkansas Supreme Court’s decision authoritatively construing it.)[10] On what basis, then, does the Constitution now require, in contravention of historic state practice, that children’s birth certificates be transmuted from a record of a child’s birth and progenitors into a “benefit of marriage”? Obergefell never explained that, either. Nor did Pavan.
Seventh. Obergefell
did not demonstrate that the state laws “throughout history” that were directed to persons in the union of husband and wife were policies that states even could apply to persons in a same-sex relationship. For example, how could the historic physiology-based evidentiary presumption of paternity directed to a birthing mother’s husband sensibly apply to relationships of two men or two women? It patently cannot. And if such a law were rewritten into (say) a non-filial “custodianship presumption” that is awarded to a genetic stranger to a child because of that unrelated adult’s licensed same-sex civil marriage status, it would be not just a different policy, but a contradictory one. As such, a court could not command such a redesign of state policy either in terms of the “constellation of benefits” historically associated with marriage (which contained no such policy) or under the banner of “equal treatment” (as the proposed treatment is antithetical, not equivalent, to the historic state policy applied to husbands of birthing wives).
Eighth. Obergefell
did not evaluate or refute the many policy reasons for states’ differential treatment of same-sex and husband-wife couples as concerns children. For instance, states (like the Supreme Court in its due process jurisprudence) recognize that a kinship connection to a child is an authorization feature of custody and parental prerogative. The difference between a child’s progenitors and those who are genetic strangers marks the difference between those who have the authority and obligation to receive, raise, and support the child, and those with no such claim and duty. This distinction likewise marks the difference that states acknowledge between those persons whose authority would have to be overcome (by death, waiver, or adjudicated unfitness) before their children could be adopted by others, and those others who could not achieve parenthood of children without state adoption decree. Obergefell never condemned these legal distinctions or the Supreme Court’s own repeated recognition of their significance.
Ninth. Certain historic state laws linked to marriage and related to children have treated persons within a marital relationship differently depending on whether the person is male or female. As a result, those laws were not triggered by the mere status of “married,” but by the unique circumstances of being a male or female individual to whom the laws are tailored. For example, states treat some married individuals as mothers (for having given birth to children), others as fathers (for having sired children), with different regulations applied to each. Neither of these are generic “spouse benefits,” let alone part of a “constellation” of positivistic government bestowals to boost the esteem of those given a civil marriage license. Being analytically unique considerations, rules pertaining to maternity and paternity cannot reasonably be treated in bulk, let alone impliedly adjudicated in bulk by a throwaway sentence in Justice Kennedy’s opinion, and then deemed unconstitutional unless and until they are transmogrified into a contradictory form of policy that renounces the original by de-sexing it.
Tenth.
The alleged Obergefell rule on birth certificate statutes and child custody accomplished by its fleeting mention of the words “birth … certificates” and “child custody” is not only empty of justification but of a clear directive of any sort at all. Can these four words, whose meaning and requirements are unstated and indiscernible, plausibly present a constitutional mandate that States rewrite their venerable family law statutes that have never been evaluated or even identified by the Supreme Court?
What, precisely, are the constitutionally commanded rules that must replace the historic state laws grounded in procreative realities? For example, are adoption requirements to be abolished for a same-sex partner who instead now must be provided automatic “parentage” of the child of her partner and a third party? Does this alleged constitutional command mean that fathers have no claim or responsibility to their offspring when birthed to a woman in a licensed same-sex relationship? Does the rule require that a woman has no claim or responsibility to the child she birthed when it is sired by a man in a licensed same-sex relationship whose male partner also claims her child?
Or perhaps the alleged Obergefellian overhaul of state custody and birth certificate law, rather than depending on the mere possession of a marriage license, also requires some additional feature in order for strangers to a child to have a constitutional right to custody of them. Is it, for example (and as popularly suggested), the partner’s intent to possess the child that is the decisive consideration for custody acknowledgment? If so, intent as demonstrated how and when? Or perhaps instead, parenthood must be awarded to claimants upon demonstration of a quantum of evidence of their custodial performance as to the child. (This being another proposal.) If so, as demonstrated by what evidence? In what quantum? When? For how long? Or perhaps is it a “best-interest of the child” standard that must first be vindicated before the child is given over to a same-sex partner. (Another suggestion in the literature.) If so, “best interest” based on what considerations?
What is the alleged constitutional command that Obergefell indubitably established (as court after court has announced) notwithstanding the fact that Obergefell’s ruling says nothing about any of this? And if the specific requirements of the “mandatory birth certificate and custody rule” cannot be identified, how can it be a requirement to begin with? In the plethora of cases in which courts blithely palm off kids to same-sex partners, these questions are not raised, let alone answered.
Notably, though, we do find a reticence by courts and commentators to extend the gay logic so as to ascribe to male couples what courts have repeatedly ruled to be a mandatory marriage right for female couples. Yet if two men with a marriage license are not possessed of the constitutional right to memorialize their relationship on the original birth certificate of a child that they (for some reason) together lay claim to, and have the constitutional right to eliminate the name of the child’s mother from the birth certificate and from custody, then Obergefell clearly did not require states to convert birth certificates into prizes and custody coupons for persons with civil marriage licenses. Any permissible differential treatment between male and female couples would reveal that it is not, after all, licensed civil marriage status that commands the adult “benefits.” If differential treatment is constitutionally permitted based on the sex of the persons in the civil marriage, then Pavan’s identification of Obergefell as the source and authority for its ruling is for this additional reason false.
So beyond failing even to begin to explain how the Constitution could require such a rule, Obergefell did not give the slightest hint as to what the rule in fact is or how it would apply. The absence of guidance in Obergefell is enough to refute Pavan, and the array of lower courts ruling similarly, that give glib treatment to a grave matter of anthropological upheaval, as if the central questions had already been definitively answered. In fact the discussion has never been had.
[1] Pavan v. Smith, 582 U.S. 563 (2017).
[2] In the Interest of D.A.A.-B., 657 S.W.3d 549, 565-66 (Ct. App. El Paso, TX 2022).
[3] Obergefell v. Hodges, 576 U.S. 644, 659-60 (2015).
[4] Id. at 660.
[5] Id.
[6] Pavan, 582 U.S. at 566.
[7] Funk v. United States, 290 U.S. 371, 385 (1933) (quoting Beardsley v. Hartford, 50 Conn. 529, 542 (1883) (emphasis added)).
[8] DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. Byrd, 521 U.S. 811, 818 [1997]; internal quotation marks omitted).
[9] Justice Gorsuch registered this point in his dissent in Pavan. See Pavan, 582 U.S. at 568-69 (Gorsuch, J., dissenting).
[10] Smith v. Pavan, 216 Ark. 437 (2016). This 2016 ruling from the Arkansas Supreme Court is that which the United States Supreme Court reversed in Pavan v. Smith.
