How Obergefell Continues to Warp Reality

The first reaction one might have to Henderson v. Adams, the June 30 decision of a federal district court declaring Indiana’s parenthood statutes unconstitutional because they treat “same-sex spouses” differently from the real ones is: further proof of the corrupt influence of the Supreme Court’s legalization of homosexual and lesbian “marriage.” That’s not necessarily untrue, but deeper inspection reveals just how confused American public policy has long been. It also indicates just how reality will continue to be warped to conform to the new Zeitgeist: as one author put it, we now expect birth certificates to lie.

Eight “married” lesbian “couples” decided they wanted children and, since nature has not yet been informed of Justice Antony Kennedy’s Constitutional right to define “one’s own concept of existence … and of the mystery of human life,” they could only become parents through artificial insemination using a male’s sperm. When they subsequently sought to register the births, Indiana issued birth certificates listing only the birth mother (who also in most cases appeared to be the genetic and gestational mother). Indiana insisted that the other “spouse” needed to “adopt” the child to be on the birth certificate.

What proved fatal to Indiana’s parentage law, however, was the Hoosier State’s paternity presumption. Under the Indiana code, a child born to a married couple was assumed to be legitimate, born in wedlock to a woman and her husband. Presumably, this original “don’t ask, don’t tell” policy enabled married couples using artificial insemination by donor (AID) to hide the genetic origin of their offspring: by imputing paternity, AID could largely function under the legal radar and, since AID probably had limited use, its social impact was likewise limited.

Obergefell changed all that. If sexual differentiation was irrelevant to marriage—indeed, if taking sexual differentiation into account constituted unconstitutional “discrimination”—then a parentage statute built on sexual differentiation would also be Constitutionally suspect.

Now, of course, Obergefell claimed that sexual differentiation was unessential to the definition of marriage because not all marriages lead to parenthood and because contraception had severed the nexus between the procreative and unitive meanings of sexual intercourse. While Catholic theology had recognized that marriage and parenthood were distinct institutions, in the real world (generally uninhabited by federal judges) the former typically led to the latter. Indeed, they typically conditioned each other because marriage, as a union of a man and a woman, had the scientifically natural possibility of giving life, something “homosexual marriage” could never naturally do. Care for the best interests of the child meant social policy that encouraged childbearing within permanent marriage.

So, while public policy recognized marriage and parenthood as distinct realities in theory, in practice they recognized them as connected. When Obergefell imposed Constitutional bait and switch on marriage law by maintaining the names but changing the reality, it was highly likely that the obliteration of sexual differentiation as an essential element of marriage would also spill over into parenthood policies.

By imputing paternity to married couples regardless of the true genetic origins of a child, Indiana opened itself to challenge. One could, of course, contend that “paternity” can hardly be imputed to a woman, but the Obergefell response is more likely to switch “paternity” with “parenthood,” divesting the latter of sexual differentiation, just like marriage.

Indiana could contend its parenthood laws were in the child’s best interests but by opening the possibility of imputing parenthood regardless of genetic origin, it paradoxically paved the way for the Henderson decision: if genetics is irrelevant to heterosexual couples, it has to be irrelevant to homosexuals.

Let’s be honest. The “best interests” of children born by AID are not served by the cloak of anonymity and the veil of lies that have traditionally surrounded the practice. These practices have been often extended to a child being unaware of his genetic disconnect from his family. While we are solicitous of adoptive children learning of their origins, especially after attaining adulthood, we still incline towards secrecy when it comes to AID.

And while artificial reproduction originated with artificial insemination (given the ease with which sperm can be obtained) the proliferation of in-vitro fertilization since the late 1970s has made reproductive techniques more widespread. Coupled with a general hands-off policy in many states, driven in no small part by legislators’ wanting to avoid a controversy as intense as abortion, the multi-million dollar fertility industry has blossomed under what Jennifer Lahl calls the “wild west” of America’s laissez-faire legal landscape in this area.

Henderson just brings the case full circle. If Obergefell denied reality by claiming marriage and parenthood are completely separate institutions, Henderson brings them back together by spreading the cancer of “right to privacy” individualism: from androgynous marriages lopped off from biology, we now get androgynous parenthood also severed from any biological bond. We now have the fiction that parenthood is a state of mind to which sex, genetics, and even biology are irrelevant. The two people wanting to be “parents” in the eyes of society are declared “parents,” while the genetic foundation is reduced to a utilitarian technique. Of course, as Henderson writes, “children’s interests” are served by “marital parenthood,” albeit all those terms shorn of elements that, until two decades ago, were deemed essential by virtually all societies that ever existed.

Zbigniew Stawrowski’s “sleek barbarians,” nihilists hollowing out Western society by interpreting its achievements (like “rights”) against itself, lead this charge while pretending to be the victims. Now, we will have birth certificates whose certification of “parenthood” are meaningless but oh so politically correct. Oh, what a tangled web we weave ….

John M. Grondelski

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John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ. All views expressed herein are exclusively his own.

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