Short Follow Up on Montana Case

Yesterday I commented on a new decision of the Montana Supreme Court.   Here’s a bit of the local press coverage.  It makes me want to add several more quick observations. 

Hulstad and Maniaci were in a lesbian relationship.   While this is evident from the majority’s opinion, it is of no legal importance.   The rationale does not hinge at all on issues of sexuality.  That means the opinion applies to many people who are not lesbians as well.  

While this isn’t unusual (many of the de facto parent opinions share this feature) it’s also a little curious.  For the press, the fact that this is a same-sex couple is news-worthy–you can tell that from the article.   It’s also important to the lesbian community and to the losing side and to the concurrence.  

This reflects the dual reality of law and its role in society.   The law is general and applies to all, to anyone who enters into an arrangement like that Kulstad and Maniaci did, regardless of whether they are lesbian or gay.   But the case is also about specifically lesbian families.    That, after all, is why both women could not adopt, why they could not marry and so on.   

The paper also lays out the contrasting views of the case rather nicely.   On the one side you have Kulstad, who bases her claim on the history of the family involved and the children.    Ultimately it is the court’s unwillingness to ignore that history and the reality it created that grounds the ruling for Kulstad.  

On the other side, Maniaci invokes her status as a parent.  In her view, that status is an exclusive right to raise the children as she sees fit.  She is free to make new choices and change her mind, without regard for the interests of the children, because that is the right of a parent.   It’s really rather stark.  (It’s true that she also disputes the history itself, but it seems fairly clear to me that Kulstad has a much stronger case on this point.)  

Finally, I remain fascinated by the deployment of the term “natural parent.”   To say you are a natural parent is to place the force of nature itself behind your claim.   It also relegates anyone else to being unnatural, which is never a good thing.   And yet, as I said yesterday, I’ve never seen an adoptive parent described as a natural parent.   

In raising this I do not mean to suggest that adoptive parents should be entitled to different (lesser) rights than those who claim parenthood by resort to “nature.”   Instead I think it is a instance of someone trying to claim moral high ground by appropriating the term “natural parent.”   I think it evidences the perception that a natural parent is somehow superior to an ordinary every day parent.   As such, in confirms my concern that would should carefully examine invocations of “nature” in family law to see what might lie behind them and where they might lead us.


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