Father Knows Best

Everybody except me, it seems, has been holding their collective breath for the Supreme Court's ruling on the Defense of Marriage act. This morning, someone somewhere posted that the Court had overturned DOMA, so I did a quick search for more information. The ruling had been issued, it turned out, but it didn't overturn DOMA; it threw out one key section of the law, the part that forbids the Federal Government to recognize married same-sex couples as married for purposes of federal benefits, joint filing of tax returns, inheritance, and the like. That's good news, but the provision the Justices (narrowly) rejected was only one of the law's pillars.  Another, no less important, is the provision that states need not recognize same-sex marriages which were contracted in other jurisdictions.  (That means that if you get married in Massachusetts and then move -- or even travel -- to Indiana, your marriage license is just a piece of paper here.)  The case before the Court wasn't challenging that part, so it still stands for now.  But people do overreact; even the headline writer for the USA Today story I linked to gets it wrong.

The Atlantic had a post today about another ruling that got less media attention, though it touches on a related issue, that of parental rights.  Another article at the same site discussed that issue as it came up in the DOMA case, but Adoptive Couple v. Baby Girl makes for an interesting control.  A Cherokee soldier in the US American army was engaged to a Latina woman; she got pregnant, they broke up (not necessarily as a result of her pregnancy) and lost touch.  The mother decided she didn't want to keep the baby and put her up for adoption; a white couple in South Carolina assumed "pre-adoptive care" of the baby.  Four months later, just before leaving for a one-year tour in Iraq, the father was notified of the mother's intent to put the baby up for adoption, and sued for custody, which he won at first.  (I'm not harping on the father's military status because I think it guarantees he will be a good, responsible father, by the way.  It doesn't.  But in cases like this, the tear-jerking factor weighs heavy in the public eye, and even in those of the courts: *sniffle* Would you take away the child of a *sob* veteran, who *bawl* put his life on the line to serve his country?)

The legal point at issue before the Supreme Court was "whether a parent who doesn’t have custody can invoke rights under ICWA", the Indian Child Welfare Act of 1978.  The Court threw the case back to the South Carolina Supreme Court to "to review the facts of the case under the new standard the Court has applied-- a standard that limits Brown's parental rights."  This doesn't guarantee that the adoption will go through, but it increases the likelihood that it will.

Now, see if you can guess which Justice wrote the following in a dissenting opinion.  If you didn't know it was about Adoptive Couple v. Baby Girl, you could read it as an endorsement of gay parenting, couldn't you?

The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is "in the best interest of the child." It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.

Right: the above was Justice Scalia, who disagreed unsuccessfully with the majority of his colleagues on DOMA.  On its face it can be taken as a defense of the right of gay or lesbian parents to raise their biological children, but Scalia has different principles in such case.  In "oral arguments for the Proposition 8 case" (the other gay-marriage case before the Court this session), Scalia said, "there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not."  As the Atlantic writer wrote, "The true consensus among sociologists, as expressed by the American Sociological Association, is that there is no evidence of such harm."  But even if there were no such consensus, even if competent sociologists did warn of possible harm to children raised by same-sex couples or single gay or lesbian parents, Scalia pointed out here that sometimes the law overlooks possible harm to protect the rights of the parents.  (Some readers may forget that some gay parents are the biological parents of their children, but many are.)   I don't think this is a simple, cut-and-dried question; one reason we have courts is to balance competing interests, rights, and legal principles against each other.  The law doesn't enforce itself.  I suspect that Scalia's overriding concern in his dissent about Adoptive Parent had more to do with father's rights, protecting patriarchy, than with mere parents' rights.  I'm not dismissing fathers, mind: I just wonder if Mr. Justice Scalia would be as solicitous of the overriding rights of a father who was also a homo.