I just want to loop back here to the earlier post about Utah law and the general/specific problem. I think the excursion into con law and its relationship to family law has been important, and with that in mind I want to go back to my thread. To do this I’m going to summarize–but it will make most sense if you’ve read the earlier posts and are not just relying on this summary.
In enacting its law about adoption and the rights of unmarried fathers, Utah has made a policy choice, or maybe a series of choices. Here’s one way to describe them: Utah says it’s best for kids to be raised in married heterosexual families. (Lot’s of people would agree with this starting point.) Thus, the state wants to minimize the instances where children will be raised in nonmarital families.
If an unmarried woman is pregnant, Utah would like to see one of two outcomes–either she gets married or she gives the child up for adoption by a married heterosexual family. Consistent with this, Utah law prefers adoption by married heterosexual couples and makes it easy for her to give the child up if this is what she wants.
By contrast, Utah isn’t terribly sympathetic to the position of the unmarried man involved. It has made a choice to place a lesser value on his interest in raising the child. You might say that they think the well-being of the child is more important than his interest, and they think the well-being of the child is best served by putting that child with married parents.
Specifically, Utah has decided that it is more important that the child be raised by married heterosexual people than that the child be raised by the man to whom it is genetically related. They have also decided that the interests of the man (as opposed to the child) aren’t as important.
Now I know you may hate this and think they’ve got it all wrong. But the first question I’d ask isn’t whether this is what you would do were you in charge–it is whether this is a constitutionally permissible choice. In general I think it is permissible, though I won’t speak to the details of how Utah has effectuated its choice.
All of this is on the general and abstract level. The case that I wrote about last week is a specific instance of how the general policy plays out. Here the action isn’t in the legislature anymore, it is in the courts. And the courts don’t deal so much in abstractions–they deal in specifics. One specific man, one specific story. And if you go back and read about that case, you’ll see that this one man–Robert Manzanares–has a really compelling story to tell.
It’s very difficult–I find it nearly impossible–not to get caught up in the specific story. In this case, it is very difficult not to feel like Manzanares was treated terribly–so terribly that I want to see it fixed, nevermind the broad policy stuff. It isn’t surprising to me that the majority–focussed on the facts–rules in his favor.
Notice that the dissent complains that the majority is avoiding the result demanded by application of the policies the legislature has chosen because of its sympathy for the individual. That’s pretty typical and there’s some force to that point.
This tension, between the legislature’s general commands and an individual case’s specific appeal, is quite common. The basic design of our system is that the legislature thinks in broad and abstract policy terms and enacts laws while the courts apply those law to specific sets of facts. There will always be individual cases where the general law doesn’t seem to play out well. Courts have to figure out whether to accept unpleasant results or whether to respond to the individual case.
I think this is especially true in family law. When an individual judge looks at particular people and perhaps especially particular children it is very hard not to want to do right by that one person or that one child. The legislature can make its choices without looking a that one case, but the courts cannot. I say nothing about whether this is good or bad, but I think it is something that really profoundly shapes our law.