What the Supreme Court Will Redefine Next

When the Supreme Court ruled on same-sex “marriage,” it didn’t just change the definition of marriage. Its decision is more insidious than most people realize. It will change more than just the obvious. It will now complete a definitional change in other societal building blocks and perhaps another new constitutional right.

Most people with whom I speak understand that the Supreme Court’s ruling will impact religious liberty and what is taught in public schools. It may well impact the tax-exempt status of churches and religious organizations and the accreditation of religious schools and colleges. But here are two things percolating below the surface that will most likely change the nature of the family itself if steps are not taken by our legislature in January to address them.

Who Is a Parent?

The Court’s ruling has put into question all the laws in Tennessee that govern the relationship between parent and child. Who qualifies as a “parent” can become very important when, for example, a teacher, physician, or government official (for example a Department of Children’s Services social worker or a Juvenile Court Judge) is dealing with a child. Who is the parent to whom rights are owed and to whom that government official owes certain duties?

Before the Supreme Court imposed its view of marriage on the states, the law of parentage has always presumed that a married man is the father of the child his wife bears. The presumption was in accord with nature’s means of procreation and the nature of the marital relationship. But now we have so-called marriages that are, by definition, sterile.

Consider the issue intentionally sterile marriages now raise. One of the women in the lesbian “marriage” gets impregnated through sperm donation. Should courts just assume that the other spouse with whom she has no genetic connection be considered a parent? The same holds for two men who use the rent-a-womb approach to have their child (called surrogacy in polite circles). Is the male spouse who does not contribute the sperm going to be considered the legal parent?

Let’s complicate it just a bit by assuming that the child is actually the product of a previous heterosexual marriage. Dad has divorced mom to marry Fred. As a spouse, does Fred, as the marital spouse of the biological father, have any rights to adopt, meaning the child would then have three legal “parents?”
As Tennessee’s courts address these issues (and the legislature may need to address some of them), I hope they will agree with what a Justice in Louisiana just said in a parent-child case there:

“While the majority opinion of Justice Kennedy [in the marriage case] leaves it to the various courts and agencies to hash out these issues, I do not concede the reinterpretation of every statute premised upon traditional marriage.”

Constitutional Right to Assisted Reproduction?

The second thing the Court’s ruling did, and related to the first, is it may have laid the groundwork for a constitutional right to third party reproductive assistance.

While various assisted reproductive technologies have already been used to create families where none was biologically possible, the “constitutional right” to same-sex “marriage” takes the issue of access to those technologies to another level.

As is obvious, two people of the same sex cannot procreate. The genetic material of a third person is necessarily required, a third person that will most often not be a “parent” to the child.

This raises the question of whether a child has a right to know or have at least certain information concerning both of his or her biological parents. If so, and if the state puts any limits on the rent-a-womb approach to child-bearing or in any other way “crimps the style” of sterile married couples to have children, you can expect them to argue that those laws violated some new-fangled “right to procreate” unnaturally.

After all, the Supreme Court has in previous cases spoken in the past about “procreational autonomy.” Of course, the Court always did so in the context of heterosexual sexual relations, but it always spoke of marriage in the past in terms of heterosexual relationships, too. That didn’t stop it from redefining marriage. So what will stop it from redefining “procreation?”

As we all fuss and fume about what to do to restore a right understanding of marriage and to protect religious liberty, I hope we won’t forget about these other issues. How our state handles these issues may be just as important as how it handles the issue of marriage.


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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