I’m returning to a theme I’ve written about before here. I’m doing this for two reasons. First of all, before is about four years ago and many readers may not have been readers then (or if they were, they may have forgotten about this). In addition, I am a different person today than I was then (then being 2010) and so perhaps I have something different to say.
In fact, I think the same thing has moved me to write today as moved me to write in 2010: Michael H vs. Gerald D. I won’t discuss it in any detail here. You can read the opinions (though it’s not an easy slog) or you can read the earlier posts about it. But for today’s purpose a quick outline will suffice.
Carole was married to Gerald. She had an affair with Michael. She got pregnant and Victoria was born. Victoria is (let us assume, as it was a 98% likely proposition) genetically related to Michael. Carole and Victoria live for a time with Michael and for a time with Gerald, but eventually it seems that Carole and Gerald reconcile and settle down. Michael, who by then has an established relationship with Victoria, wants to maintain contact with her. The CA courts deny his requests and the case ends up in the US Supreme Court.
For at least some of the justices, the question is whether the US Constitution requires that Michael be recognized as a legal father (or at least recognized as someone with a legally significant relationship with Victoria). (I think it’s pretty clear that if CA had chosen to recognize him as a legal father that would have been constitutionally permissible. But CA didn’t grant him that recognition and so you can see the question as being whether CA was required to do so.) And the answer the Justices who see this question provide is, I think, “no.”
In support of his claim Michael invokes 1) genetic relationship and 2) social relationship. From some earlier cases (in particular Lehr, which I’ve also talked about elsewhere) there was some reason to think that these two things taken together might have been enough to give Michael some sort of rights. But under the circumstances here, it didn’t work out that way.
Which brings me to the circumstances. The key thing, it seems to me, is that Gerald was also claiming legal parenthood–using the marital presumption that has been frequently discussed of late. CA chose Gerald over Michael (as a matter of law) and one way to understand the Supreme Court opinion is that Court says it’s entitled to do that.
I think this is evidence of a hierarchy of parenthood. Gerald beats Michael. But what if Gerald hadn’t been there? Suppose he had died and Carole sought to place Victoria for adoption somewhere else. Would Michael have been entitled to object? I think he would have been. Or suppose Gerald and Carole had not been married, but that Gerald had wanted to claim paternity anyway? Without the marriage, I think Michael would have prevailed over Gerald. (Michael, after all, has genetics.)
But does it make sense to think about a hierarchy with respect to constitutional (as opposed to statutory) rights? It seems to me that either Michael has a constitutional right to have his relationship with Victoria recognized or he doesn’t. That decision should be based on the connections between Michael and Victoria–not on the connections between Carole and Gerald. How can Carole’s marriage to Gerald make Michael’s right vanish? It just seems to me you cannot use this sort of hierarchal reasoning to determine if there are constitutional rights at issue–to say you have no right if someone higher up the chain claims a right.
Now it may be that when it comes time to figure out how to translate recognition of various relationships into actual time with the child you think about who else is in the picture and which rights ought to be primary. That’s sort of conventional legal balancing. But the idea that you look at who else has rights to see if I have rights seems very odd to me.
I suspect this is rooted in the idea that only one man can be Victoria’s legal father–which means it becomes a zero-sum game. If Michael is, Gerald cannot be and vice versa. Most rights I can think of aren’t like that. But of course this model is exactly what Victoria herself wanted to challenge. (She wanted relationships with both men.) The Court couldn’t contemplate that. But it seems to me that, if we’re looking at who has rights, that might be a better way to go.