Cleaning Up the Supreme Court’s Obergefell Mess

When the U.S. Supreme Court in the Obergefell case decided it could redefine marriage for all the states, it created a mess. Fixing it will take an assist from the states. A decision this week by the same state Supreme Court that first gave us same-sex “marriage” demonstrates the problem. Perhaps Tennessee can help bring about the fix.

In 2003, the Supreme Court of Massachusetts said that the state constitution required same-sex “marriage.” But the state’s Legislature did not revise all the statutes governing family law to reflect this redefinition of marriage. My guess is that no state has changed all its family laws as a result of the U.S. Supreme Court’s Obergefell decision. Tennessee sure hasn’t. And that is what is creating the current mess.

This week the Massachusetts Supreme Court said that a woman was the legal parent of a child her female partner had by artificial insemination. Note: they were not married. The lawyer for the woman not related to the child cited two laws to give herself the legal status of parent (incidentally, the lawyer is Mary Bonauto, who argued for the same-sex couples in Obergefell).

First, Ms. Bonauto argued that the “paternity” statutes justified the claim that her female client should be “deemed” the child’s other legal parent. Given that the word “paternity” means “the state or fact of being the father of a particular child” and comes from the Latin word paternus,meaning “of a father,” do you now see the problem? How can a woman be a “father” unless words in statutes no longer have their common meaning? And on what basis could a court “interpret” away the clear meaning of that word?

Well, Ms. Bonauto argued that the statutes do not define “mother” and “father,” which she asserted left the Court free to give those words new meaning to conform to the new meaning of marriage. Makes perfect sense to me—if a court can redefine marriage, why can’t it redefine “husband” and “paternity” (and, really, any word in the English language)? You have to wonder what legislators were thinking years ago when they didn’t bother to define the terms “father” and “mother”!

But Ms. Bonauto also argued that the statute on artificial insemination involving a “husband and wife” should be interpreted to apply to her as well. Makes sense, too—if a court can redefine “father” and “mother,” surely it can redefine “husband” and “wife.”

Before you say, “Thank God we live in Tennessee,” consider the fact Ms. Bonauto has commentedon the artificial insemination lesbian divorce case in Tennessee in which I am involved on behalf of 53 state legislators. She said, “As a matter of supremacy . . . the Tennessee statutes must be construed to comply with Obergefell’s constitutional commands.”

In other words, she is saying that the U.S. Supreme Court has put the Tennessee courts (and all state courts, really) in the position of having to rewrite all of their state’s family law under the guise of constitutional “interpretation.” However, if they don’t, if they can resist the judicial activism we saw in Massachusetts this week, then perhaps the U.S. Supreme Court, on appeal from cases like the one in Tennessee, will realize it’s going to have to rewrite all the family law in every state and that doing so will be going too far, destroying the Court’s last vestige of legitimacy.

Hopefully, if confronted with situations like these and the contortions in legal reasoning they will have to engage in to reinterpret every state’s family law, the Supreme Court will realize why our Founding Fathers left family law up to each state and will reverse Obergefell.

For that to happen, some state courts are going to have to force the issue back to the U.S. Supreme Court by refusing to do their dirty work for them, and legislators are going to have to resist the temptation to change the wording in our statutes. Legislators need to leave our laws alone and, looking our state judges in the eye, dare them to reinterpret the plain language of statutes they have passed.

The process starts in Tennessee on October 21st when a Knoxville trial court will decide whether the word “husband” in Tennessee’s insemination statute includes a “lesbian spouse.” Stay tuned. The road to returning marriage back to the states may run through Tennessee.

What the Supreme Court Will Redefine Next

When the Supreme Court ruled on same-sex “marriage,” it didn’t just change the definition of marriage. Its decision is more insidious than most people realize. It will change more than just the obvious. It will now complete a definitional change in other societal building blocks and perhaps another new constitutional right.

Most people with whom I speak understand that the Supreme Court’s ruling will impact religious liberty and what is taught in public schools. It may well impact the tax-exempt status of churches and religious organizations and the accreditation of religious schools and colleges. But here are two things percolating below the surface that will most likely change the nature of the family itself if steps are not taken by our legislature in January to address them.

Who Is a Parent?

The Court’s ruling has put into question all the laws in Tennessee that govern the relationship between parent and child. Who qualifies as a “parent” can become very important when, for example, a teacher, physician, or government official (for example a Department of Children’s Services social worker or a Juvenile Court Judge) is dealing with a child. Who is the parent to whom rights are owed and to whom that government official owes certain duties?

Before the Supreme Court imposed its view of marriage on the states, the law of parentage has always presumed that a married man is the father of the child his wife bears. The presumption was in accord with nature’s means of procreation and the nature of the marital relationship. But now we have so-called marriages that are, by definition, sterile.

Consider the issue intentionally sterile marriages now raise. One of the women in the lesbian “marriage” gets impregnated through sperm donation. Should courts just assume that the other spouse with whom she has no genetic connection be considered a parent? The same holds for two men who use the rent-a-womb approach to have their child (called surrogacy in polite circles). Is the male spouse who does not contribute the sperm going to be considered the legal parent?

Let’s complicate it just a bit by assuming that the child is actually the product of a previous heterosexual marriage. Dad has divorced mom to marry Fred. As a spouse, does Fred, as the marital spouse of the biological father, have any rights to adopt, meaning the child would then have three legal “parents?”

As Tennessee’s courts address these issues (and the legislature may need to address some of them), I hope they will agree with what a Justice in Louisiana just said in a parent-child case there:

“While the majority opinion of Justice Kennedy [in the marriage case] leaves it to the various courts and agencies to hash out these issues, I do not concede the reinterpretation of every statute premised upon traditional marriage.”

Constitutional Right to Assisted Reproduction?

The second thing the Court’s ruling did, and related to the first, is it may have laid the groundwork for a constitutional right to third party reproductive assistance.

While various assisted reproductive technologies have already been used to create families where none was biologically possible, the “constitutional right” to same-sex “marriage” takes the issue of access to those technologies to another level.

As is obvious, two people of the same sex cannot procreate. The genetic material of a third person is necessarily required, a third person that will most often not be a “parent” to the child.

This raises the question of whether a child has a right to know or have at least certain information concerning both of his or her biological parents. If so, and if the state puts any limits on the rent-a-womb approach to child-bearing or in any other way “crimps the style” of sterile married couples to have children, you can expect them to argue that those laws violated some new-fangled “right to procreate” unnaturally.

After all, the Supreme Court has in previous cases spoken in the past about “procreational autonomy.” Of course, the Court always did so in the context of heterosexual sexual relations, but it always spoke of marriage in the past in terms of heterosexual relationships, too. That didn’t stop it from redefining marriage. So what will stop it from redefining “procreation?”

As we all fuss and fume about what to do to restore a right understanding of marriage and to protect religious liberty, I hope we won’t forget about these other issues. How our state handles these issues may be just as important as how it handles the issue of marriage.

— David Fowler, President of FACT