November 1st, 2011
Gage Raley, a good ol’ Texas Mennonite studying law in Japan has come up with his most excellent reason for denying civil marriage rights to gay folk. And it’s all based on the marital presumption of paternity.
Or so Mr. Raley informs us in a late-filed amicus brief to Perry v. Schwarzenegger. And Judge Walker’s ruling should be overturned.
Now first I’d like to congratulate Mr. Raley on a most informative essay. The history of the legal and social efforts to ensure that men support their offspring – going back as far as the first human who stood erect on her hind legs – is actually a fascinating read.
But sadly, it seems that young Gage is pursuing the wrong career. He should have chosen history so as to take advantage of his story telling skills. Because law requires logic, a tying of facts to consequences that reflect a process of thinking that can withstand and opponent’s review.
And, sadly…. well, let me just give you his premise.
Mr. Raley tells us that in the American judicial system, there is a maternal presumption of paternity whose purpose is to “provide every child with a legal father.” And, though he probably doesn’t realize it, for some dozens of pages he uses the word “father” in terms of the role he plays, providing for the survival of the child.
Interestingly, a great deal of attention is spent on the argument that a genetic father must be known in order to naturally trigger this provision (a biological imperative for the continuation of his genes). And marriage’s purpose was to tie the care of the child to the continuation of his lineage. The result being that through marriage a man knew who his children were (or, at least, thought he did).
But by page 47, Raley’s evolution of law has come to the point where legal requirements are as much in play as emotional ones. And it is there that he finally tells us what the marital presumption of paternity actually is: “presuming a woman’s husband to be the father of her children”.
Irrespective of biological reality, the legal father of a child, the one responsible for its care and needs, is presumed to be the mother’s husband at the time of the child’s birth. And that is true.
Even if the child is of another race, if the husband is sterile, and if everyone in town knows that they mother is carrying on an affair, that child’s father is presumed to be her husband. Follow me? Even if it is impossible for the man to actually be the genetic father of the child, in the eyes of the law, as long as no one disputes it, he is the father.
And while there are ways to void this presumption, if the father is aware but doesn’t act in a timely manner, then he will remain that child’s father. And if they divorce, he can be legally responsible for child care. Courts have upheld such rulings.
(And this is a presumption that is not entirely unfair to men. More than a few children have been born to fathers who cannot impregnate with the full intention and even participation of men who want to be a dad.)
And it is at his grand “and thus” moment that Mr. Raley beams and presents his smoking gun: in a same-sex marriage, there’s no man to be the presumptive father of the woman’s child. A state has an interest in ensuring that its children are cared for and, it is impossible for both parties in a same-sex marriage to be the genetic parents, then the legal presumption of paternity of a child born in such a union can’t apply and no one can be held liable for that child’s care.
Oh, but what Mr. Raley didn’t notice (the elephant which was not only in the room but tap dancing while playing a trumpet) is that it was for just such a purpose that the presumption of paternity (or, from the state’s perspective, the presumption of a legally obligated provider) came to be. This presumption assigns a provider even when the neighbors scoff at the notion. It’s a legal assumption, not a literal one.
And Mr. Raley apparently is unaware that legal presumption is one of the tools that gay couples use to establish parental rights in states that allow marriage equality. It gives the child a legal parent even when biology fails to do so.
So, Mr. Raley’s argument (like most of the arguments presented to defend Proposition 8) ultimately supports same-sex marriage. But it was a nice history lesson, nonetheless.
It seems Mr. Raley made an eensie teensie mistake. In filing the brief, he states:
Both parties have granted their consent to the filing of this amicus brief.
Well, no. Not exactly. The Plaintiffs have a quite different perspective:
Plaintiffs-Appellees have not consented to the filing of Mr. Raley’s untimely brief. Rather, Plaintiffs-Appellees informed Mr. Raley that the parties previously had consented to those amicus briefs that complied with this Court’s rules. Because Mr. Raley’s brief is filed long after the deadline established by the Court for the submission of amicus briefs, it does not comply with the Court’s rules and Plaintiffs-Appellees do not consent to its filing.
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Part 5: A Candid Explanation For "Change"
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