Wednesday, June 26, 2013
I am inclined that it says something -- and not something good -- about the state of things that on what appears to be the last day of the Supreme Court's 2012 Term -- in which the Justices decided dozens of cases, most of which presented technical legal questions and most of which by 9-0, 8-1, or 7-2 votes -- the whole world is watching to see whether or not the Justices will announce -- whether Justice Kennedy will announce? -- a definitive answer to the question whether states must include same-sex unions in their legal definitions of "marriage."
In any event, yesterday, in another "family law" case, the Court issued a ruling involving the Indian Child Welfare Act captioned (not very helpfully) "Adoptive Coule v. Baby Girl." For more on the case, go here. The case involves what I think are really difficult, even painful questions. I'm not sure how they should be answered. (Remember the Elian Gonzalez drama?) Here is a bit, from the end of Justice Scalia's dissent:
While I am at it, I will add one thought. The Court’sopinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring achild into the world to raise that child. We do not inquirewhether leaving a child with his parents is "in the best interest of the child." It sometimes is not; he would bebetter off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.
Of course, there might be a reason in "policy" to "dilute" that protection, namely, that the chilld spent the first several years of her life with her parents and family. And, so, the case is hard. Thoughts?