Advocates of sexual-identity liberties are increasingly enlisting jurisprudential notions of judicial supremacy, state sovereignty over domestic relations, and a positivist conception of familial rights and duties, all of which have been used in American history by enemies of liberty.
Memorably, Chief Justice Roberts chided his colleagues for their "extravagant conception of judicial supremacy" in his dissent in Obergefell v. Hodges. "[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia," he marveled, "for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?" The new family law expands the power of courts in unprecedented ways.
Less attention has been paid to the expansion of state power over the family. The Supreme Court cannot rewrite all of family law by itself. But family law must be rewritten to conform to new orthodoxies. So activists are asking lower courts to expand state power over the family. Proponents of redefinition are the new states' rights activists.
A law clinic at Stanford University has filed a petition asking the Supreme Court to declare that adoptive parental status created by statute is equal to biological parental status for Fourteenth Amendment purposes and superior in constitutional status to the biological kinship relation between a grandmother and grandchild. Activists have asked the Seventh Circuit to rule that Indiana must list non-parents on birth certificates. These and other cases are predicated on the assumption that the state creates parental status in law and that it violates basic principles of equal justice to deny parental status to alternative family arrangements that adults might choose for children.
How did we get here?
For centuries, Anglo-American law has rested on the conviction that the rights and duties of kinship and family precede state action and positive law. The jural relations among husbands, wives, parents, children, grandparents, uncles, aunts, and cousins all rest in natural law and in customs so ancient that, in the words of common law jurists, "the memory of man runneth not to the contrary." States are not competent to alter them at will. This is why the Supreme Court declared in a landmark of fundamental rights jurisprudence that the collectivist reconfiguring of families that Plato proposed and Sparta practiced are "wholly different from those upon which our institutions rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution."
States lawfully exercise their powers to provide for children who are not fortunate enough to live in families or whose parents are abusive. Adoption and foster care were acts of charity and private ordering in common law, and they did not involve official recognition. Over the last century or so, states created statutory schemes regulating those practices and establishing the terms on which official recognition will be extended to non-biological familial relations. More recent statutes allow for conferral of parental status on those who bring new human life into the world by artificial reproductive technologies. But parental status created by a state's positive law has never enjoyed the same fundamental, constitutional status as the pre-political reality that parents owe their biological children natural duties. This is why biological parents enjoy natural powers and liberties to raise their children free of interference by the state.
Until recently, the state's power to define familial relations was thus confined to exceptional cases, such as adoption and surrogacy. Yet in a growing number of cases around the United States today, claimants are asking state and federal courts to expand the privileges posited by state law and to weaken the constitutional status of the biological family. The idea is that official recognition by the state is what makes a family.
Of course, that is not a new idea. It also has a history in American law.
In the tumultuous and morally confused period leading up to the American Civil War, a number of state supreme courts announced a novel doctrine of family law. Those courts extended the doctrine of legislative supremacy to cover the family. That doctrine came from English law but was curtailed in the American founding, and, in any event, it had never reached the legal status of the pre-political family. William Blackstone, the great champion of parliamentary supremacy, insisted that human lawmakers have no competence to alter the rights and duties of natural law, such as the obligation of parents to provide for their natural children.
Nevertheless, in the antebellum period several courts embraced the idea that the state has the power to define, reconfigure, and even abolish the rights and duties of domestic relations. So, for example, the Maine Supreme Court in Adams v. Palmer (1863) asserted that the rights of the marital relation "are determined by the will of the sovereign" and "are such as the law determines from time to time, and none other." The Kentucky high court declared in Maguire v. Maguire (1838) that the marriage contract "cannot be dissolved by the parties; but may be by the sovereign power, exercised in legislative or judicial form, as the cause may justify, with or without the consent of both parties."
The Rhode Island Supreme Court opined in Ditson v. Ditson (1856) that people "are placed" in domestic relations "under the law, as are parents and children, masters and servants; and as every nation and state has an exclusive sovereignty and jurisdiction within its own territory, so it has exclusively the right to determine the domestic and social condition of the persons domiciled within that territory." The state's sovereignty is so complete, the court suggested, that it may "create by law new rights in, or impose new duties upon, the parties to these relations, or lessen both rights and duties, or abrogate them, and so the legal obligation of the relation which involves them, altogether." So a state may declare
that the legal relation, of master and slave, for instance, shall cease to exist within its jurisdiction, or for what causes or breaches of duty in the relation, this, or the legal relation of husband and wife, or of parent and child, may be restricted in their rights and duties or altogether dissolved through the judicial intervention of its courts.
After the Civil War, the idea that states have unlimited power to define domestic relations fell out of favor, for obvious reasons. Nevertheless, in the landmark decision Maynard v. Hill (1888), the Supreme Court of the United States articulated with approval the states' rights conception of family law. The Court upheld a special statute that purported to dissolve a valid marriage without the wife's knowledge or consent and without cause, enacted by a legislature in a territory in which she never resided to which her unfaithful husband had absconded. The Court invoked the tradition of English and American colonial legislatures asserting the power to grant divorces by special legislation. Ignoring the little matter of the American Revolution, the Court inferred that once the parties enter a marriage contract, the state alone can alter their legal status.
The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.
In short, the public's interest in the marriage outweighs the wife's interest in it. Therefore, the Court concluded, a constitutional provision in the organic act of the territory that protected vested private rights against retrospective abrogation "can have no application to the marriage relation."
In context, Maynard might look like the last gasp of states' rights jurisprudence. And it was quickly swept into history's dustbin. In the early twentieth century, the law and politics of marriage and family resumed their respective common-law positions: Law comes first. In a series of decisions, including Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Skinner v. Oklahoma (1942), the Supreme Court of the United States ruled repeatedly that the relations of the natural family are pre-political and entitled to special constitutional protection against state action.
Finally, in the landmark decision Loving v. Virginia (1967), the court expressly repudiated the states' rights doctrine of Maynard v. Hill. The Loving Court stated,
While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska and Skinner v. Oklahoma.
The equilibrium between state sovereignty and the natural family persisted through the twentieth century and indeed was still intact when the Supreme Court took up the question of same-sex marriage in Obergefell. But the Obergefell majority bracketed the jurisprudence of Meyer and Loving, which looks for fundamental rights in our nation's history, conscience, and traditions, and set it aside (prompting some scholars to speculate that the Court had either limited or even quietly overturned that strand of jurisprudence). The Court instead found "other, more instructive precedents" in its reports, especially Maynard v. Hill.
Obergefell gave the Maynard doctrine a new life in American jurisprudence. After Obergefell, many courts are once again arrogating to the state the power to define and reconfigure the family. This logic is on full display in a recent decision by the Appellate Division of the New York Supreme Court. A man donated his sperm to a woman who married another woman under New York law. The man later asserted paternity. All the parties acknowledged that he was the biological father, and so the trial court ordered a genetic test to establish paternity. The Appellate Division took the case to prohibit the test.
The appellate court applied the presumption of paternity to deem the mother's wife the child's second parent. The court noted that the presumption of paternity is rebuttable upon clear and convincing evidence that the child is not the product of the marriage. The court acknowledged that "it is not currently scientifically possible for same-gender couples to produce a child that is biologically 'the product of the marriage.'" It observed the "undisputed fact that petitioner was the sole sperm donor." But, the court worried, "If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents." So, legal status conferred by state law must trump biological reality. The court could "discern no facts in this record on which to conclude that [the man everyone in the case acknowledged is the child's biological father] established, by clear and convincing evidence, that the child is not entitled to the legal status as 'the product of the marriage' [between two women]."
In one sense, this resurgence of state sovereignty is more limited than the first iteration, in that it is exercised under the watchful supervision of courts, which direct that it be employed to advance the interests of sexual-identity minorities. But achieving that goal requires states to exercise powers they do not and should not possess. Like the old Maynard doctrine, the New States' Right is the power to make, remake, or even abolish at will the jural relations of the family.
And the New States' Rights are in another respect even more ambitious than the Maynard doctrine. It is the power to write the record of a child's origins. Those who employ it purport to determine a fundamental aspect of a child's identity.