Monday, June 26, 2017

SCOTUS: Gay Couples Entitled To "Equal Treatment" On Birth Certificate

I'm not sure how big a deal this is in and of itself.
   Though...I yet again have a small twinge of regret for having advocated for same-sex marriage so vociferously, and for having rejected the definitional arguments against it so derisively...  I was mostly for same-sex civil part because I wanted civil unions to be available to everyone...but in part so that we didn't have to rule on the validity of the definitional argument. I also think that the idea of marriage can be extended fairly easily to include polygamous marriage...and that a same-sex marriage isn't so alien to the concept as to to it all that much violence. But I'm actually a bit less sure of those things than I used to be.
   I haven't read the decision yet, but I'm inclined--before seeing the arguments--to think that I'd be most likely to reject the challenge to the Arkansas law, on the grounds that no woman is a father. I'm inclined to say: we could create a different document--or perhaps it would be a different kind of document--that just asks for the names of two parents...where a parent can be of either sex, and either biological or the other kind (whatever you call that). In fact, it might be reasonable to rule that, because of Obergefell, there must be an alternative, parent-parent document if there is a mother-father document. But it's a lot less plausible to argue that women can be listed as fathers and men as mothers.
   It certainly seems that no woman can be a father...though maybe if we had the technology to take a woman and construct something very sperm-cell-like, that would make a woman sufficiently father-like that it wouldn't be wildly inaccurate to say that some woman is a father... But that's off the top of my extremely unreliable head...
   But of course, SCOTUS has no authority to rule that women can actually be fathers. It can only rule that women can be listed as fathers on certain kinds of legal documents. This is a kind of legal fiction, like the claim that someone who is rear-ended and pushed into the car in front of them is at fault. It isn't true, but it keeps the social and legal trains running.
  I read somewhere that, if Smith and Jones are married, and Smith is pregnant by an anonymous donor, Jones is listed as the father of the that does seem to be sufficiently analogous in certain ways...but, again, what's really wanted here is a mother-parent document or somesuch, it seems.
   But, again, this is more about what's legal, and less about what's true, long as people don't mix those things up, we're good.
   Of course: they're going to mix them up. (And they're going to do so intentionally, for political purposes.)


Blogger Spencer said...

I'm confused by your criticism. Nothing in the article you linked claimed that any party to the lawsuit asserted that women can be fathers, nor that the court declared them to be. The article and the court opinion all seem to indicate the issue is exactly as you mention near the end - Arkansas law has exceptions that show their birth certification regime to be one NOT based solely on biology, but also in some cases on marital status. (The thing about a husband being automatically written into te birth certificate in cases of artificial insemination is from your article and the court opinion, btw.) To paraphrase the majority opinion: since the state chose to make birth certification in these cases a matter of marital status and not biology, they have to list both spouses on the birth certificate irrespective of sexual orientation. It does not require that they list a second spouse as a father regardless of sex.

Even the Gorsuch dissent seems to agree that Obergefell requires such a procedure in the case of artificial insemjnation; his criticism instead seems to be that the lower court already did that sufficiently.

Also, isn't a per Curiam decision one which doesn't set precedent? If so, this case provides no legal leverage for striking down laws that are simply matters of recognizing biology as you seem to worry at the very end of your post.

9:22 PM  
Blogger Winston Smith said...

I've always been unsure what was up with *per curiam* decisions--and I didn't even realize this one was such a one. I don't know if there are any implications beyond just "we're issuing this together."

Also, as I think I mention, I haven't read it yet.

My main worry is that this will be another brick in the wall, and be illegitimately used to argue that it has extra-legal implications for the questions "what is a man/woman?"

8:31 PM  

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