COMMENTARY: The Judeo-Christian understanding of marriage is the best public policy possible in this fallen world.
Jennifer Roback Morse February 22, 2023 at NCRegsiter.
Obergefell v. Hodges was wrongly decided. This case proves it.
I was pretty sure I knew what I was going to find when I clicked on this screaming headline from NBC News: “A Lesbian lost her son to his sperm donor: Should other gay parents be concerned?”
The “sperm donor” is the child’s father. The lesbian is not related to “her son” either through biology or adoption. She feels cheated. We are supposed to feel sorry for her because the court gave custody of the child to his biological parents. This is exactly the type of case that shows how wrong-headed the Supreme Court’s Obergefell v. Hodges decision really was.
I was deeply involved in the marriage debate prior to 2015, when the U.S. Supreme Court redefined marriage from the union of a man and a woman to a union of any two persons. Custody disputes between same-sex couples were coming up well before that decision.
I found it extremely frustrating that even the dissent from Obergefell showed no interest whatsoever in the damage to children’s relationships with their biological parents. The crucial issues show up in the NBC News report on this recent situation:
“Kris Williams and Rebekah Wilson were legally married in June 2019, before Wilson gave birth to a boy that August, according to court documents. Shortly after the couple separated in November 2021, Wilson moved in with the child’s sperm donor, taking the boy with her and prompting Williams to petition for custody.
“If Williams were a man, there would have been a ‘presumption of paternity’ under Oklahoma state law, which says: ‘A man is presumed to be the father of a child if … he and the mother of the child are married to each other, and the child is born during the marriage.’”
Let’s be clear. Miss Wilson is the biological mother of the child. The “sperm donor” is the child’s father. The NBC News article explains that “according to court documents, Wilson entered a ‘Known Sperm Donor Agreement’ … before the nonmedical insemination of Wilson took place.” (I wonder what a “nonmedical insemination” is.)
The child is now living with his biological parents, who have, evidently, decided that living together is a good idea. I personally give them credit. They are most likely thinking of the good of their child. Feeling attached to one’s offspring is the most natural thing in the world.
But NBC News and the Gay Legal Establishment disagrees. They are shocked by the Oklahoma court:
“Shannon Minter, an attorney with the National Center for Lesbian Rights, said, ‘Those [same-sex] couples may face unfair and even unlawful obstacles to having their parental rights secured and protected, and that’s just a reality.’”
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In a nutshell, this dispute illustrates why I believe Obergefell was wrongly decided. Before “gay marriage,” the law presumed that the mother’s husband was the father of any children born during the life of their marriage. In the vast majority of cases, this presumption attached legal paternity to the biological father of the child.
Prior to 2015, I argued that redefining marriage would redefine parenthood. The presumption of paternity would have to be reinterpreted as a gender-neutral “presumption of parenthood.” In 100% of same-sex civil marriages, this presumption assigns legal parentage to someone not biologically related to the child. The Lesbian Law Center is demanding a gender-neutral definition of parenthood, in the name of “fairness.”
The Oklahoma court explained the issue. Let’s listen in and hear what the judge has to say:
“Oklahoma County district Judge Lynne McGuire argued that Williams could not claim parentage rights over the child because Oklahoma’s parentage act predates the legalization of same-sex marriage in the state.
“‘[The act] does not take into account same-sex marriage, and there is no presumption that the wife of the mother is automatically presumed the parent of a child born during the marriage,’ McGuire ruled. … ‘The reality is that the law provides a legal remedy available to Williams,’ McGuire wrote, referring to adoption. ‘She knowingly chose not to pursue it.’”
Attaching mothers and fathers to their children and to one another is not only one purpose of marriage. It is the essential public purpose of marriage. Same-sex couples and opposite-sex couples are not similarly situated with respect to this very important purpose of marriage law.
Holding that man-woman marriage is unlawful discrimination requires the law to ignore this legitimate purpose of marriage. The language of the marriage rulings removed the reproductive purpose altogether — look at Judge Vaughn Walker’s definition of marriage when he overturned Proposition 8. College dormmates would fit Walker’s minimalist definition of marriage.
About the Ruth Institute
The Ruth Institute is a global non-profit organization, leading an international interfaith coalition to defend the family and build a civilization of love.
Jennifer Roback Morse has a Ph.D. in economics and has taught at Yale and George Mason University. She is the author of The Sexual State and Love and Economics – It Takes a Family to Raise a Village.
To schedule an interview with Dr. Morse, contact media@ruthinstitute.org.
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