I’m about to head out for travel but will try to put something quick up to follow on the last post. (If you go read that first it will help here.) Neil offered a novel argument in trying to avoid the effect of the marital presumption. Remember that some argue that the marital presumption is valuable because it ensures the child is raised in an intact marital family if there is one willing to raise the child? Well, Neil pointed out that he was married and had an intact family, so why not let him raise the child instead of Mary and her husband? (Or maybe the child could be raised in two intact marital families–which must be better than just one?)
Now on one level I think this takes amazing chutzpah. Here’s a guy who has had an affair with a married woman that resulted in the birth of a child and he’s asking for special treatment because he’s married, too. I know I am quite old-fashioned here, but the fact that Neil is married does not improve my opinions his actions here.
But though I do think it is nervy, it actually does make a certain amount of sense to me. But it seems to me that his argument really feeds into an argument I don’t think he made (or at least, the court doesn’t say he made it.) That’s a sex discrimination argument.
Think about it this way: Neil has the same genetic relationship to the child as Mary does. Both of them are married to other people. So they are really quite similarly situated. What’s the rationale for saying Mary gets to be a parent while Neil just has to wait? Why doesn’t he have exactly the same claim she does and why doesn’t his wife have the same claim that Scott has? Perhaps there’s another sex discrimination claim there in fact–why is Scott treated more favorably than Neil’s spouse?
What this points up is that the marital presumption is gender-specific. It doesn’t go both ways–the child Mary gave birth to is not presumed to be the child of Neil’s spouse so she has no status, but Mary’s spouse is presumed to be the father of the child and thus displaces Neil.
I think there’s a simple answer here–but like all simple answers, it raises a ton of questions. Mary is female, Mary is pregnant, Mary gives birth. The idea that we would have presumed Neil’s wife is the mother in the face of Mary’s pregnancy and birth seems odd to say the least. Somehow Mary really is th mother and her role cannot be reassigned. By contrast we’re familiar with the idea of assigning fatherhood as it suits us.
Uh oh–gotta run. But there’s some food for thought.