The Looming Threat that Conservative Justices of SCOTUS Pose to the Obergefell v. Hodges Decision that Legalized Gay Marriage Equality

12/03/2017 02:10 pm ET

In a June 2017 per curiam decision, namely Pavan v. Smith, SCOTUS ruled that an Arkansas state law that prevented same-sex married couples to list both names of parents of a newborn child on the birth certificate violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Indeed those foundational Clauses of Section 1 of the Amendment formed the basis of Obergefell v. Hodges, the seminal ruling that legalized gay marriage equality.

Per curiam decisions are infrequent in SCOTUS rulings as they are presented in the name of the Court as whole reflecting unanimity in non-controversial decisions in contrast to full-blown opinions typically representing a majority of judges and dissent in full or dissent and concurrence in parts by others. In the case of Pavan v. Smith, the Court did not find it necessary to go beyond a per curiam decision given the face of unconstitutionality in the Arkansas state law that discriminated against same-sex couples receiving full marriage benefits.

Not being able to list both parent’s names challenges not only the legal recognition of the full meaning of parenthood, it could prevent the non-biological birth parent from claiming full benefits should the birth mother pass away. It threatens our basic ability to establish proof of parentage in general, one of the most sacrosanct duties of the law to protect. How can one fulfill the great fifth commandment ‘to honor thy parents’ if you can’t establish who both parents are? To add insult to injury, the Arkansas Law allows for non-biological fathers married to biological mothers to include their name on the certificate; but it does not extend the same right to same-sex couples who lay claim to non-biological but equally co-creative participation in giving birth to a newborn. It seemed rather uncontroversial that the Arkansas state law basically denied the full meaning of parenthood to both spouses in a same-sex marriage, and thereby the full equality of what marriage means as a union, disserved by state intrusion. Hence the simplicity of a per curiam decision rather than a full-blown opinion that would create new legal precedent.

However, this is not the issue at hand. What is more disturbing is Justice Gorsuch’s dissent, joined by Justices Thomas and Alito, the stalwart conservatives on the Court. By examining the dissent’s hidden moral and philosophical assumptions, one can begin to extrapolate future contours of a looming threat to a whole host of progressive laws that have emerged, most notably gay marriage equality. It points to the tyrannical regime of heteronormativity and heteropatriarchy and its insidious embeddedness in secular, constitutional democracies that are not easy to diagnose. Coupled with capitalism’s endless need for the biological reproduction of future laborers, it reveals all the hidden assumptions about the hetero-nuclear family as a form of private property, which becomes the basis that forms society’s so-called moral values. Engels had early insights into this relation between family, property, and the state as the anchors of capitalism. It is not implausible to see how heteronormative assumptions get reproduced over time to shape our moral vision of all reality precisely through our democratic legislative and judicial mechanism of lawmaking and interpretation.

For example Justice Gorsuch basically argues in his dissent that one should partition the idea of marriage from the issue of reproduction and birth certificates, and restrict the scope of Obergefell v. Hodges to just that of marriage. This is a convenient move if one sees the relation between marriage and reproduction strictly in terms of biological sexual difference. It reveals a deep devaluation by conservative political forces on the moral validity of artificial insemination as if it were not biologically natural. But one can ask that if it does not exist in nature, then why is it possible for it - a new modality of birth - to occur, given human ingenuity to shape its own identity in new ways? Individual freedom is an outgrowth of nature that transforms even our understanding of what is ‘natural.’

Rights instruments that recognize new forms of ‘nature’ and ‘creation’ that include same-sex unions must overcome the proclivity of legal thinking towards biological reductionism. Such biological reductionism ensures, according to Gorsuch’s summary of the state law, “rational reasons exist for a biology based regime” that gives government sovereign rights to guarantee public health, establish biological ‘lineage’ and understand and to identify and perhaps preempt ‘genetic disorders.’ When governments see themselves as the sole arbiter of biological lineage, and one can argue race, in the name of the public good, then all kinds of things can go astray as we have seen in twentieth century history. This is a particularly sensitive issue now as societies become more heterogeneous and diverse along racial, ethnic, gendered, sexual orientation lines and the multidimensional intersections thereof.

A more inclusive social vision for marriage that recognizes same-sex unions needs to be coupled with new notions of valid reproduction, let alone the right to co-equal parenting and proof thereof post-birth. We must continue to deconstruct the hidden assumptions about ‘biology’ when it comes to law, policy, and the formation of the common good. Lastly we need a more diverse, equitable, and inclusive modality of legal reasoning: one that can reflect the emerging values of an intersectionally diverse and complex society. This is a realm in which discrete variables of biological sexual difference and reproduction give way to a new ‘regime’ of thinking that is not biologically-based but nevertheless an equally valued function of what we deem normal and natural given our immense diversity and heterogeneity as a human species.

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