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4th Circuit Hears Oral Arguments In Graduation Prayer and Venue Case

This is from religionclause.blogspot.com which you can find here:

On Tuesday, the U.S. 4th Circuit Court of Appeals heard oral arguments in American Humanist Association v. Greenville County School District. (Audio of full oral arguments.) At issue was the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as its practice of holding some graduation ceremonies at a religious chapel on a local college campus. (See prior posting.) Greenville News reports on the oral arguments.

You can learn more about this issue here.

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The Death of Eros

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in First Things which, I thought, was pretty insightful. Be edified.

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Something strange is going on in America’s bedrooms. In a recent issue of Archives of Sexual Behavior, researchers reported that on average, Americans have sex about nine fewer times a year than they did in the late 1990s. The trend is most pronounced among the young. Controlling for age and time period, people born in the 1930s had the most sex, whereas those born in the 1990s are reporting the least. Fifty years on from the advent of the sexual revolution, we are witnessing the demise of eros.

Despite all the talk of the “hookup culture,” the vast majority of sex happens within long-term, well-defined relationships. Yet Americans are having more trouble forming these relationships than ever before. Want to understand the decline of sex? Look to the decline in marriage. As recently as 2000, a majority—55 percent—of Americans between the ages of twenty-five and thirty-four were married, compared with only 34 percent who had never been married (see Figure 1). Since then, the two groups have swapped places. By 2014, 52 percent of Americans in that age group had never been married, while only 41 percent were married. Young Americans are now more apt to experience and express passion for some activity, cause, or topic than for another person.

Figure 1.

A decline in commitment isn’t the only reason for the sexual recession. Today one in eight adult Americans is taking antidepressant medication, one of the common side effects of which is reduced libido. Social media use also seems to play a part. The ping of an incoming text message or new Facebook post delivers a bit of a dopamine hit—a smaller one than sex delivers, to be sure, but without all the difficulties of managing a relationship. In a study of married eighteen- to thirty-nine-year-old Americans, social media use predicted poorer marriage quality, lower marital happiness, and increased marital trouble—not exactly a recipe for an active love life.

If these were the only causes, the solution would be straightforward: a little more commitment, a little less screen time, a few more dates over dinner, more time with a therapist, and voilà. But if we follow the data, we will find that the problem goes much deeper, down to one of the foundational tenets of enlightened opinion: the idea that men and women must be equal in every domain. Social science cannot tell us if this is true, but it can tell us what happens if we act as though it is. Today, the results are in. Equality between the sexes is leading to the demise of sex.

To understand why this is, we need to turn to Gary Becker, an economist who won a Nobel Prize for his study of the economic principles behind human interactions. He documented how the benefits of marriage receded as women’s earning power rose relative to that of men. The years between 1973 and 1983 were decisive. In that decade, young women’s wages climbed steadily while men’s actually fell, never to recover. Women had less reason to marry, and they had less attractive mates should they nonetheless decide to. Though women had often entered marriages for financial reasons, many nonfinancial benefits followed, including the formation of a stable, intimate relationship with a spouse and the sense of purpose that comes with raising a family. These are things that no job—however lucrative—can deliver.

This is the first of your three free articles for the month.  The introduction of the Pill has not changed what men and women value most, but it has transformed how they relate. The marriage market before the Pill was populated by roughly equal numbers of men and women, whose bargaining positions were comparable and predictable. Men valued attractiveness more than women, and women valued economic prospects more than men. Knowing that men wanted sex, but realizing that sex was risky without a corresponding commitment, women often demanded a ring—a clear sign of his sacrifice and commitment.

Not anymore. Artificial contraception has made it so that people seldom mention marriage in the negotiations over sex. Ideals of chastity that shored up these practical necessities have been replaced with paeans to free love and autonomy. As one twenty-nine-year-old woman demonstrated when my research team asked her whether men should have to “work” for sex: “Yes. Sometimes. Not always. I mean, I don’t think it should necessarily be given out by women, but I do think it’s okay if a woman does just give it out. Just not all the time.” The mating market no longer leads to marriage, which is still “expensive”—costly in terms of fidelity, time, and finances—while sex has become comparatively “cheap.”

For every one hundred women under forty who want to marry, there are only eighty-two men who want the same. Though the difference may sound small, it allows men to be more selective, fickle, and cautious. If it seems to you that young men are getting pickier about their prospective spouses, you’re right. It’s a result of the new power imbalance in the marriage market. In an era of accessible sex, the median age at marriage rises. It now stands at an all-time high of twenty-seven for women and twenty-nine for men, and is continuing to inch upward. In this environment, women increasingly have to choose between marrying Mr. Not Quite Right or no one at all.

For the typical American woman, the route to the altar is becoming littered with failed relationships and wasted years. Take Nina, a twenty-five-year-old woman my team interviewed in Denver. Petite, attractive, and faring well professionally in her position with an insurance company, Nina was nevertheless struggling when it came to relationships. She had a history of putting men she valued as confidantes in the “friend zone.” With these men, a sexual relationship seemed too risky. If it went awry, she’d lose not only a potential mate but also a valued friend. On the other hand, if she didn’t know the man well, she was willing to have casual sex while hoping for something more.

After several years, this approach had taken its toll: an abortion, depression, and a string of failed relationships. Nina now believed that a marriage ought to begin as a friendship, and for the first time in years, she had someone in particular—David—in mind. Though she had been raised by liberal parents to be open-minded about sex and wary of traditional household roles, she had come to see things differently. She was blunt: “I’m dead serious. . . . I would marry him, I would raise his kids, raise a family.”

In her 2013 book Hard to Get, Leslie Bell, a sociologist and psychotherapist, tries to understand the lives of women like Nina. She laments that the skills they developed “in getting ahead educationally and professionally have not translated well into getting what they want and need in sex and relationships.” When it comes to relationships, their “unprecedented sexual, educational, and professional freedoms” have led to “contradictory and paradoxical consequences.”

Nonsense, I say. The only contradictory and paradoxical thing here is the unrealistic expectation of so many that the financial independence of women would have wholly positive effects on the dance of the sexes. Women and men still want each other, but the old necessities that once brought them together have disappeared. Many are going it alone, apparently. Since 1992, there has been a 100 percent growth in the share of men and nearly 275 percent increase in the share of women who masturbate at least weekly.

Even those who marry are having trouble in the bedroom. According to the study, the frequency with which married couples had sex fell 19 percent between 2000 and 2014. An even steeper decline is evident in the just-released 2016 data. It’s not just married couples, either; cohabiting Americans are also reporting a drop in sexual activity. In their 1994 landmark sex study, University of Chicago sociologist Edward Laumann and his colleagues reported that 1.3 percent of married men and 2.6 percent of married women between the ages of eighteen and fifty-nine had not had sex within the past year. Twenty years later, 4.9 percent of married men and 6.5 percent of married women in the same age range report that it has been more than a year since they have had sex with their spouses. How do we account for this?

Here, too, equality is the enemy of eros. Differences between men’s work and women’s work—between breadwinner and homemaker, father and mother—are increasingly viewed as arbitrary and oppressive. And yet this loss of everyday oppositions between men and women has made Americans less, not more, attractive to each other. It was not supposed to be this way. Some sociologists have guessed—or perhaps hoped—that men who are willing to take on traditionally female household tasks might enjoy more active sexual lives with their wives—quid in the kitchen for quo in the bedroom. The authors of a recent analysis of the National Survey of Families and Households conjectured that women would use the promise of sex to convince men to do more domestic tasks. Despite the transactional way of framing the problem, the researchers harbored a fond hope: that more equal relationships would also be more erotic ones. So, do men who do a greater share of the housework enjoy more sex? No. In fact, they’re penalized in the bedroom. Husbands who do little or no housework had sex with their wives nearly two more times per month than did husbands who do all of it. Meanwhile, doing a greater share of traditionally male work around the house—mowing the lawn, fixing things—correlates with more sex. Men and women are not attracted to sameness, but to difference. We long for what is missing in ourselves. Needing each other makes us want each other.

Recognizing this doesn’t mend everything between men and women, however. The cheap sex that was made possible by the Pill, further discounted by pornography, and made more efficient by Tinder has proven to be a bad bargain for women, leaving them (and, in turn, men) lonelier and less connected than they once were. I see it in the statistics and I hear it in their stories.

“Equality,” Israeli sociologist Eva Illouz writes in her 2011 book, Why Love Hurts, “demands a redefinition of eroticism and romantic desire that has yet to be accomplished.” Indeed. Egalitarianism promised the flourishing of eros, but by abolishing the difference between the sexes, it has made sexual acts self-referential—even those that are not performed alone. Men and women are not interchangeable, and our effort to make them so has only increased the loneliness and disaffection of American life. We cannot have both eros and strict equality between the sexes. Saving one requires sacrificing the other.

By: Mark Regnerus, and originally published in First Things in October 2017 and can be found here.

 

Ecclesiastical Abstention Requires Dismissal of Suit Over Sikh Temple Membership

This is from religionclause.blogspot.com which you can find here:

In Singh v. Sandhar(TX App., May 10, 2016), a Texas appellate court, on the basis of the ecclesiastical abstention doctrine, dismissed a suit contesting the membership list that was used by a Sikh temple in determining who was eligible to vote in an election to select members of the temple’s 7-member executive committee known as the Prabandhak Committee. The court held:

The temple’s alleged failure to follow its bylaws on a matter of internal governance involves ecclesiastical concerns, and civil courts may not interfere in these matters when disposition of church property is not at stake.

You can learn more about this issue here.

The Citadel Refuses Religious Accommodation In Uniform Requirement

This is from religionclause.blogspot.com which you can find here:

Washington Post reported yesterday on a controversial decision by The Citadel to refuse a religious accommodation to its strict student uniform requirement.  The South Carolina public military college will not allow a Muslim student who has been admitted to wear her hijab. According to the paper:

[T]he fact that [the school] was considering an exception … set off shock waves among alumni. The idea pleased some in the close-knit corps, who felt it could be an important symbol of religious freedom and inclusiveness. But it upset others who felt it would clash with the mission and ideals of the Citadel, where loyalty, teamwork and uniformity are paramount.

At the Citadel, students are expected to leave behind their individuality … and form opinions based on character rather than appearance. Allowing one student to wear something completely different struck many as antithetical to that mission. And some objected, as well, because exceptions have apparently not ever been made for other religions. Christian cadets have been told not to display crosses, for example.

That the exception was being considered at a time when the role of Islam in U.S. culture is so polarizing …  made the issue particularly incendiary far beyond the Charleston, S.C., campus.

You can learn more about this issue here.

A Collection of Personal Injury Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of personal injury legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

Lawsuit Challenges Mississippi’s New Freedom of Conscience Law

This is from religionclause.blogspot.com which you can find here:

ACLU of Mississippi announced yesterday that it has filed suit against the state’s Registrar of Vital Records on its own behalf and on behalf of a same-sex couple challenging recently enacted Mississippi H.B. 1523, the Freedom of Conscience From Government Discrimination Act.  While the Act broadly protects various actions of government and private businesses based on religious or moral beliefs that marriage is a union of one man and one woman, that sexual relations should be reserved to heterosexual marriage, or that gender is an immutable characteristic determined at birth (see prior posting), the lawsuit largely focuses on provisions allowing county clerks to recuse themselves from issuing marriage licences. The complaint (full text) in Alford v. Moulder, (SD MS, filed 5/9/2016) seeks declaratory and injunctive relief that the law violates the equal protection and due process clauses of the 14th Amendment.  It argues that the requirement for the Registrar of Vital Records to keep a list of those who have opted out of performing same-sex marriages amounts to creation of a “no-same-sex couples allowed” list.  Alluding to the other provisions of the law, the complaint adds:

HB 1325 subjects same-sex married couples in Mississippi to a lifetime of potentially humiliating denials of ordinary assistance and places a badge of inferiority upon their marriages each time they celebrate one of the ordinary incidents of family life.

You can learn more about this issue here.

 

Suit Challenges 25-Foot Cross In Florida Park

This is from religionclause.blogspot.com which you can find here:

The American Humanist Association yesterday announced the filing of a federal court lawsuit against the city of Pensacola, Florida to challenge the city’s ownership, maintenance and display of a 25-foot tall Christian cross that stands alone in the city’s Bayview Park.  The complaint (full text) in Kondrat’yev v. City of Pensacola, Florida, (ND FL, filed 5/4/2016) says that the history of the cross is uncertain, but it is used solely for Christian Easter sunrise services each year. The cross was placed in the park sometime between 1951 and 1965, probably by the Jaycees. Easter services in the park pre-date the erection of the cross there. The lawsuit seeks an injunction ordering removal of the cross from government property.

You can learn more about this issue here.

How Self-Expression Replaced Love As the Most Important Part of a Marriage

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in The Cut which, I thought, was pretty insightful. Be edified.

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In 2004, HBO aired the final episode of Sex and the City. Carrie Bradshaw (Sarah Jessica Parker), the self-centered but appealing journalist, has moved to Paris to pursue a relationship with Aleksandr Petrovsky (Mikhail Baryshnikov), the brilliant but distant artist. Aleksandr, preoccupied by a major exhibition of his work, neglects Carrie, who increasingly pines for New York and her friends there.

We, as viewers, aren’t surprised when she leaves him, and we aren’t surprised by the explanation she gives for breaking off their relationship. She’s disappointed because her love with Aleksandr is insufficient, but her larger concern is that the relationship fails to afford the expression of a central aspect of her identity — “it’s time to be clear about who am,” she tells him, with emphasis on the I. We cheer her on, especially because we know something she doesn’t — that the love of her life, Mr.
Big (Chris Noth), has conquered his emotional avoidance and wants to commit to her. But few of us consider her breakup explanation in historical context, and the fact that not long ago, it would have seemed absurd.

America has witnessed three major eras of marriage. The first, which extended from the colonial period until around 1850, had a pragmatic emphasis in which marriage was primarily oriented toward helping spouses meet their basic economic and survival needs. During the second era, from 1850 until around 1965, marriages had a love-basedemphasis that placed a premium on helping spouses meet their love and intimacy needs. During the third era, from around 1965 to today, marriage has a self-expressive emphasis that places a premium on spouses helping each other with their authenticity and personal-growth needs.

In the mid-1960s, Americans began to prize a new brand of individualism, expressive individualism, that cherishes self-discovery and psychological growth. Expressive individualism is characterized by a strong belief in individual specialness; voyages of self-discovery are viewed as ennobling.
“There is in you something that waits and listens for the sound of the genuine in yourself,” the philosopher and theologian Howard Thurman declared in a 1980 commencement address capturing the essence of expressive self. “Nobody like you has ever been born, and no one like you will ever be born again — you are the only one … If you cannot hear the sound of the genuine in your life, you will all of your life spend your days on the ends of strings that somebody else pulls.”

More recently, the psychologists Roy Baumeister and Michael MacKenzie argue that the self has become a fundamental value base, an entity “that is itself accepted as an inherently positive good on its [own], without reference to other, even more fundamental values.” Religious people typically view God’s will as a value base; they don’t feel compelled to ask why it’s important to prioritize God’s will. As Western societies have secularized, “the self has taken on ever more luster as a powerful value base.” The pursuit of self-expression has become a moral good in and of itself.

The moral righteousness of achieving authenticity has powerful implications for marriage. “Not long ago,” observes the sociologist Eric Klinenberg, “someone who was dissatisfied with his or her spouse and wanted a divorce had to justify that decision. Today it’s the opposite: If you’re not fulfilled by your marriage, you have to justify staying in it, because of the tremendous cultural pressure to be good to one’s self.”

The rise of the self-expressive marriage has also overhauled our views about the optimal ways for spouses to interact. Consider changes in the advice offered in women’s magazines. According to the communications researcher Virginia Kidd, “putting aside of self was defined as loving behavior” during the long decade of the 1950s, “and conversely thinking of self first was unloving and displayed lack of genuine concern for others.” Starting in the mid-1960s, the emphasis shifted to the development of one’s authentic self and bringing spontaneity to the marriage. In one study, researchers coded advice in women’s magazines from 1900 to 1979 for the presence of traditional themes like “love means self-sacrifice and compromise” and self-expressive themes like “love means self-expression and individuality.” This period witnessed a strong long-term trend toward self-expression, an effect that would have been even stronger if not for the brief self-expressive surge during the Roaring Twenties. Whereas 20 to 30 percent of the relevant articles expressed self-expressive themes in the 1930s and 1940s, nearly 70 percent did in the 1970s.

In a 2014 study, when American college students were asked to define what the term mate value means to them, they recognized the standard domains like compatibility, commitment, and physical attractiveness, but they also emphasized the importance of having a partner who brings out the best in them. In the words of one student, “I really feel like someone of ‘mate value’ would be someone who helps me become the best person I can be, the best version of myself.” This student’s definition strikes to the heart of the self-expressive era: All of us have many possible selves, but most of them are inferior variations of our authentic or best self; we are looking for a spouse who elicits that version of ourselves.

By Eli Finkel and published in The Cut on September 19, 2017 and can be found here.

 

Iowa’s Supreme Court Hears Dispute Over $75 Speeding Ticket

I have been writing in opposition to traffic cameras for a few years now.  A woman called Merrit Kennedy, writing for NPR, relates the story of Marla Leaf who litigated her camera-ticket all the way to the Iowa Supreme Court.

My other writings on Traffic Cameras can be found here:

Articles:

Blog Posts:

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A dispute over a $75 speeding ticket has climbed through the levels of Iowa’s court system, reaching the lofty heights of the Iowa Supreme Court for oral arguments.

Marla Leaf got a speeding ticket because a camera allegedly caught her driving 68 mph in a 55-mph zone on an interstate freeway through the city of Cedar Rapids in February 2015.

It’s not typical for the state’s top court to hear small-claims cases. But in her case against the city of Cedar Rapids, Leaf argues that her constitutional rights and state law were violated because the city delegated police powers to the private company that maintains the speed cameras.

Opponents of automated traffic enforcement may view such cameras as “unduly intrusive, unfair and simply amounting to sophisticated speed traps designed to raise funds for cash-strapped municipalities by ensnaring unsuspected car owners in a municipal bureaucracy under the circumstances where most busy people find it preferable to shut up and pay rather than to scream and to fight,” Leaf’s attorney, James Larew, told the justices on Wednesday.

He said his clients “refuse to be stilled.” Leaf’s case has been joined with another that involves similar issues.

At various levels of Iowa’s court system over more than two years, Leaf has said she believes she was not speeding, especially because of slippery road conditions that day. The cameras are triggered if they record speeds of more than 12 miles over the speed limit.

Leaf’s case argues that it is unlawful to give the authority to assess speeding — something it says is police work — to the private camera company, Gatso.

Can the assessment of a municipal violation be done, Larew asked, “by the police department appointing a friend of theirs to serve as a hearing officer?”

Lower Iowa courts have been satisfied that the system is constitutional because it is the police department — and not the private company — that ultimately makes the decision to issue a speeding ticket.

“There is never a citation issued that does not get reviewed and approved by a police officer,” Gatso attorney Paul Burns told the justices. According to court documents, Gatso receives $25 per citation.

Larew also argued that there is no valid safety reason for the camera system on Interstate 380 — also the site of alleged speeding violations by the other parties to the case. He said the cameras don’t issue tickets to semitrailers and government vehicles, calling the discrepancy arbitrary and a violation of equal protection.

The camera system works by focusing on back license plates, which government vehicles do not have in Iowa. Patricia Kropf, an attorney for the city, told the court that the excluded vehicles are “just not in the database that we need to use to do this in a cost-effective manner.”

Burns also claimed that photographs taken of front license plates would potentially pose privacy concerns because the faces of passengers in the vehicle might be included.

Larew also challenged whether it is constitutional for the city of Cedar Rapids to assess fines for speed on federal interstate highways.

The future of certain speed cameras is up in the air across the state, The Gazette newspaper writes:

“In March 2015, the Iowa [Department of Transportation] ordered 10 of 34 camera locations on primary highways and interstates around the state turned off, and another three moved or modified, stating they didn’t improve the safety of the highway system. After losing an appeal to the Iowa DOT director, the cities of Cedar Rapids, Des Moines and Muscatine — three of six cities in Iowa with traffic cameras on state highways or interstates under Iowa DOT control — sued in June 2015 to keep the cameras on.”

By: Merrit Kennedy and originally published by NPR on The Two-Way on September 20, 2017 and can be found here.

 

Obergefell and the Right to Other People’s Children

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in the First Things which, I thought, was pretty insightful. Be edified.

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We’re mournfully familiar with the constitutional right of mothers to be rid of their own prenatal children. Now coming into view is an adult right to possess and have authority over other people’s recently born children. What this means, and portends, merits more consideration than it is presently receiving.

Those who dissent from created verities tend to vacillate between disclaiming the reality they contest and depending on it. After entreating the Supreme Court to rule in Obergefell v. Hodges that marriage is not about children and the procreative union of husband and wife, but instead about adult companionship, affection, and government dignity-conferral, individuals in marriage-licensed same-sex partnerships now demand access to children—because they are married. As the law traditionally presumed that a child born to a wife was the child of her husband, now the law must deem the female partner of a mother to be the child’s other . . . parent. Thus, advocates of marriage-redefinition borrow from the institution they just assassinated the legal standards historically associated with it—as if these could survive the death of their source, and sensibly transfer to same-sex relationships.

Representative of this trend is the case of Pavan v. Smith, ruled on by the Supreme Court earlier this summer. In that litigation, two same-sex female couples in marriage-licensed relationships sued the State of Arkansas. The couples demanded the automatic entry of both women’s names on the original birth certificate of the child born to one woman. The state of course had designated the child’s mother on the birth certificate. The mother’s companion, though unrelated to the child, demanded the same. The plaintiffs argued that Obergefell requires that upending of state policy.

The Court in Obergefell did indeed recite that “the States . . . have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities,” and the Court included “birth . . . certificates” in its illustrative litany. But this is rather beside the point. What marriage has entailed “throughout our history” is exactly what the Court’s ruling in Obergefell was designed to overthrow. Obergefell’s revision of marriage severed the connection of marriage to traditional birth certificate policy.

States “throughout our history” assuredly did not grant automatic birth certificate entries to persons categorically unrelated to the child. Nor did states throughout our history fashion birth certificates whose contents indicate that the child has two mothers and no father, or two fathers and no mother. When the Court in Obergefell alluded to states’ traditional linking of marriage to birth certificates, the statutory tradition it referenced was the rebuttable legal presumption of the husband’s paternity of the child born to his wife, which in turn was documented in the record of the child’s birth.

Due to the redefinition of marriage as a two-humans partnership rather than a complementary husband-wife union, the character of the marital relationship must be defined down to the points of commonality that exist among those now populating the category. The message of Obergefell is that what does not describe couples of the same sex must be erased as a feature of marriage. The procreative generativity of the man-woman union must be only an incidental occurrence (however statistically common) attending certain of those in the redefined relationship of state-licensed marriage; it is no longer a feature of marriage. As such, the traditional policies of paternity, legitimacy, and birth certificate documentation—each conceptually dependent on “pre-redefinition marriage”—are anachronisms properly detached from legal marriage in its redesigned form. To retain the policies would be to retain a legal significance to features of marriage that same-sex couples cannot generate.

As a result, there would seem to be two analytical options available in response to same-sex partner demands for automatic parenthood. Either the policies of paternity, legitimacy, and birth certificate design that derived from the husband-wife relation must be ejected from marriage as such, or those historic policies must be reconstructed to serve an alternate purpose. For instance, instead of birth certificates acknowledging the natural descent of the child and documenting the bond to mother and father, their updated purpose may be to ennoble and reward adults in certain relationships by documenting the prize of child custody given them—notwithstanding that their licensed relationship did not, and is of a form that could not, bring the child into the world.

Under either option, plaintiffs’ “equality” claim to a constitutional right to child-access should fail. For in the first scenario, if the traditional policies are now dissociated from marriage, they no longer may be claimed as its incidents. In the second, if the policies are retained in name but redefined, then they are not the policies that the states have tied to marriage “throughout our history.” They have no pedigree of association with matrimony to serve as precedent for their current demand.

What litigants are left with, then, is a nominal trick: Something called “paternity” or “birth certificate” was historically associated with something called “marriage,” so the nouveau policies appropriating those old names must be bundled, too. Remarkably, this bait-and-switch has been credulously received and rewarded by courts and agencies across the country.

But when courts impose on the historic paternity presumption a “gender-neutral” reconstruction, they in effect (to borrow a phrase) castrate it and bid the gelding be fruitful. These courts take hold of a policy founded in a physiological reality and written into the law as such—that discerns and assigns paternal status and authority precisely in the natural relation of fatherhood bound to motherhood and offspring—and then separate that policy from the ontological weight of the relation that has always justified it. Yet the courts then proceed as if the hollowed-out remainder yielded a basis on which to assign an adult the presumptive authority to possess and direct the upbringing of an unrelated child.

The equivocation in this maneuver is galling. Also damning is the advocates’ ambivalence concerning the analogy of same-sex partners to unions of mother and father. If the natural mother-father relation to the child is inconsequential (the Pavan plaintiffs describe the procreation rationale as “specious”), then so is the same-sex partner model whose demand for comparable treatment is staked on an analogy to it.

That nullifying move also attends the reliance on and repudiation of the paternity standard. The historic paternity presumption was directed to the identification of the father. It has no application to women at all, whose maternity of children was demonstrated by giving birth to them. Nor is the paternity presumption relevant to men in same-sex relationships, as their conduct has no relevance to procreation. And as the paternity presumption was grounded in biological fact, it could be rebutted by biological evidence.

What the family-redefinition advocates in fact clamor for is neither the biological paternity standard nor its attending rebuttable presumption. They instead demand that physical “paternity” be transmuted to legal “parentage,” and the “rebuttable presumption” be replaced with “irrefutable fact.” In sum, they demand de-sexed parentage-upon-demand for an individual adult who lays claim to somebody else’s child as a means of bolstering the naturally bereft though artificially legal status of same-sex spouse. Arkansas Supreme Court Chief Justice Brill candidly put forth the revised outlook: “The right to a birth certificate is a corollary to the right to a marriage license.” Children are now accessories attending adult legal status.

It’s a strange sort of lying when the state issues a birth certificate that declares a child has two mothers and no father. It’s a lie everyone knows is a lie. But the fact that no one is fooled doesn’t mitigate the damage. When this sort of lying endures as official government policy, it impresses upon the community the public irrelevance of the matter about which it lies, and converts the lie into a sort of legal truth—which carries systemic authority and gravitational pull. Moreover, the lie is cemented into vital records and the child is deprived of knowledge of family descent. That deference to adult demands at the cost of children’s identity-awareness entails what Rabbi Gilles Bernheim called the irreversible scrambling of genealogies. Here again, that is more than a private deprivation; it is a public repudiation of natural family ties.

This brings us to the combination of technological advance and moral retreat manifest in assisted reproductive technologies (ARTs). These technologies have rendered sexual congress unnecessary and (more terrifyingly) conceptually irrelevant to making babies—a crucial shift easing the redefinition of marriage. And the prevalence of contemporary legal concessions to ARTs has muddied the waters analytically in the task of resolving who is the child of whom. Thus in Pavan, the opening the plaintiffs exploited is the fact that Arkansas law contains a narrow exception to its biology-based paternity rules: The state assigns paternity to the husband of a wife whose child was conceived via anonymous donor insemination. As the women in the Pavan case who gave birth had also been impregnated with donor sperm, their female partners demanded a de-sexed approximation of paternity (i.e., “parentage”).

But even in this compromised context, there remains an expressive policy interest in treating same-sex and husband-wife couples differently. Though ill-advised, Arkansas’s explicit countenancing of artificial insemination in its paternity assignment to the mother’s husband can be interpreted as a concession to, rather than approval of, the off-scene employ of extra-marital insemination. The invasion of the marital relation by the extramarital father might be mitigated by the law’s public maintenance (through its paternity designation) of the ideal of marital fidelity and the integrally related fatherhood of the husband, even if the private reality is to the contrary. But in the context of a female couple, the opposite policy lesson is communicated. Such a couple with a child in tow presents an irrepressible message of fatherhood-denigration and third-party intervention into the relationship. That message contradicts the maxim motivating the exceptional standard they demand be revised to encompass their circumstance.

Yet perhaps Obergefell’s achievement was, after all, to forbid any such legal distinctions directly or indirectly drawn from the procreative model. The Court having redefined marriage to eliminate its connection to sexual complementarity and the institutional binding together of mother-father-child, there is cause to doubt whether those natural bonds are allowed any longer to matter in law at all, for any reason. For the key point is not what features the Court abolished, but what it abolished them from: namely, the archetypal, paradigm-resolving public institution that represents the law’s understanding of human nature. The Court having banished the norm of kinship from the marital family (ever its vital locus), it would be incongruous to permit that norm’s survival anywhere else.

If state birth certificate regulations prioritize the recording of genealogy rather than functional custodial assignments, they defy the anthropology that Obergefell teaches and relies upon. State laws situating the child’s identity in hereditary descent assigns legal valence to a feature of reality to which same-sex couples cannot contribute. Notable, then, is the Supreme Court’s ruling in Pavan that Arkansas must give up its policy devoted principally to that end—at least in the form found in its current statutory scheme.

The distressing challenge presented by modern constitutional jurisprudence in this field is its denial of stable essences or fixed law. Law instead takes its form through a process of evolution guided by elite negotiation, in terms always reinforcing the contingency and provisional character of whatever may be the latest determination. Any apparent impediments to further evolution in family redesign are ultimately insecure, being vulnerable to surmounting by the combination of confessedly inventive legal interpreters and the logical pull of the principles now loosed upon us. As those principles esteem adult choice and role functionality rather than blood ties, they justly invite policymakers’ experimentation with family forms, as well as their deference to a wide array of functional innovations adults may select.

Nevertheless, this realm of jurisprudence remains unresolved and thus viably contested. In neither Obergefell nor Pavan did the Court devote attention to the significance and disruptive consequences of treating biological motherhood and fatherhood as legal equivalents to functional relationships of adults with other people’s children. Nor did the Court acknowledge the doctrinal collision of a standard of biology-irrelevance with wide swaths of historic domestic relations standards and the Court’s own due process case law. In view of the Court’s analytical silence on the immense controversies implicated in doing so (a subject for another essay), it is yet unwarranted to interpret its rulings as intending to annihilate the legal significance of ancestry and natural parent-child connections, with all their pathos-laden profundities. States may need to pivot legislatively at certain points, but they still have ample cause to hold fast to their historic natural family regulations—and should.

The uniqueness, fecundity, functional elegance, relational logic, and social value of the husband-wife marital relation testify to its created meaning and intentions. Its preservation as an institution in law and society is indispensable to preserve the eminently public truth of human identity as embodied and familial. We may suppress that truth in our epoch of mandatory incomprehension, but seeing the obvious remains available. One should hope it will not require the pitiless crowbar of events to compel our return to collective acknowledgment. But should it be so, the resultant clarity may be a mercy to future generations having in hindsight an instructive exemplar of disaster.

By Jeff Shafer and originally published in First Things on September 21, 2017 and can be found here.

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