This week the Administrative Office of the Courts (AOC) was taken to task by FOX News, and after a big “mea culpa“ from their office, I couldn’t help but think of the legal maxim, “Ignorance of the law is no excuse.”
The “controversy” was over a change to a court form put out by the AOC, which is under the auspices of the state’s Supreme Court, serving at its “pleasure.”1 The particular form was a standard template order setting forth the “parenting plan” for when there are two divorcing parents of a child.
The old form (see image above) had a box for “plaintiff” and a box for “defendant” in which you typed the names of the parties, and under their names, in each box, were two other check boxes, one labeled “Mother” and one labeled “Father.” You obviously checked the box that pertained to the parental capacity corresponding to the party, whether plaintiff or defendant.
But, the AOC, no doubt with the Court’s knowledge, changed the form (see image below) to delete the reference to “Mother” and “Father” and replaced it with “Parent 1” and “Parent 2.” That is the change that sparked the firestorm.
To be honest, had the form originally said “Parent 1” and “Parent 2” years ago when it first came out, probably no one would have thought a thing about it, because, in a standard form, you’re not going to know in any particular divorce proceeding whether the plaintiff is going to be the man or the woman.
But the form didn’t say that originally because that is not how we thought of parents. Parents were mothers or fathers, period. That’s why the change was a problem.
In the first place, “married” same-sex couples aren’t both really parents, since in Latin, parent literally means, “to bring forth.” Obviously, two people of the same sex can’t really “bring forth” a child together. So, in a sense, the new form was incorrect in that both of them can’t even be “parents” except the law declare them to be so. But for sure, one of them can’t be the “Mother” and the other can’t be the “Father.”
That leads to the second problem. The Court was either being politically correct or inadvertently disclosing its own understanding of marriage and parenting by changing a form that didn’t technically need to be changed. In the event of a same-sex “marriage,” both individuals could have simply checked “mother” or checked “father,” as the case may be. But in changing the form, the Court slighted the vast majority of parents by diminishing our status from mother or father to merely parent 1 and parent 2. I am not a 1 or a 2, I am a father, thank you.
That the Court would make this kind of change, when not strictly necessary, makes me wonder what other laws, specifically passed by the legislature on the assumption marriage was always going to be between a man and a woman, the Court will take upon itself to willy-nilly “interpret” to apply to same-sex couples. As a Justice in Louisiana recently said, “I do not concede the reinterpretation of every statute premised upon traditional marriage.”
In fact, if this were a “normal” constitutional case, one might argue that all the other laws in the state related to marriage should be invalid if the law defining marriage is invalid. After all, the other laws were premised on a certain assumption regarding marriage that the U.S. Supreme Court now says a state was not entitled to assume. In other words, it would be perfectly within the rights of the legislature and the courts to evaluate every law on the books pertaining to marriage to see if it should still apply.
Thankfully, the AOC withdrew its changed form and reverted to the old form. But it only did so because it got so many calls of protest about the form, and those calls helped the administrators realize that they did not have the power to unilaterally change the form in the first place. State law requires that a legislatively established judicial council first make changes in court forms before they become official.
To which I say to the members of the Supreme Court and its administrative arm, “Ignorance of the law is no excuse.” Since we now know that you may also be ignorant of what marriage and parenting in their truest sense are biologically really about, we’ll be keeping a closer eye on you all.
1 T.C.A. § 16-3-802(a)
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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