June 26, 2013
Children, parents, families & tribes
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?
To start, I think the case was correctly decided based on the court's reasoning. To answer your question: yes, this is a difficult case. But state family law courts have already done the hard work of wrestling with these issues, and have made the judgment in favor of "diluting" the rights of the boyfriend father if the boyfriend never had custody, he gives up his rights to the mother, and the mother decides to let another couple adopt the baby. That's the determination of South Carolina family law for what is in the best interests of the child, and it seems like a sensible result to me. Now that's the result that would occur for any other child in circumstances similar to the Supreme Court case. The only difference in the Supreme Court case from every other child case is that the boyfriend has a few drops of Cherokee blood, and thus the boyfriend argues that his Cherokee blood gives him rights that trump the rights of the child. I think that kind of racialist reasoning that would trump a normal determination of what is in the best interests of the child is unseeemly.
The argument of the boyfriend and J. Scalia's comments seem to come from the position where a parent's right to a child is elevated over the rights of the child himself. Generally, I disagree with such a position, as I see it implicit in our culture of divorce, IVF, abortion, surrogacy, gay couples claiming a right to children, etc., instances where an adult's personal wants and desires take precedence over what is in the true best interests of a child. (At the same time, I recognize that in our society with greater government oversight and control, I'm cautious of the government having the power to declare--sometimes incorrectly--what is in the best interests of a child and to break up a family because it disagrees with the parent, and so I wonder whether the parent's right to a child is an important safeguard.)
Posted by: Thales | Jun 26, 2013 9:35:11 AM
It seems to me problematic to advocate adoption as at least a partial solution to the problem of unwanted pregnancies and children, and then to argue in favor of undercutting it. If you make it too easy for the biological parents to undo an adoption, people will not adopt. It is just too painful for the adoptive parents and for the child who is put at risk of traumatic separation from his or her adoptive (and only) family. I wonder how many abortions resulted from the decision of many Pennsylvania adoption agencies to leave the state in the 1980's, because of the state's infamous adoption laws?
Posted by: Ellen Wertheimer | Jun 26, 2013 9:45:21 AM
Justice Kennedy it is.
Posted by: Marc DeGirolami | Jun 26, 2013 10:04:07 AM
Doesn't your question, Professor, engage in a bit of question-begging, by describing the adopters as the child's "parents"?
I haven't taken a good look at AC v. BG, but I think the uneasiness you express over the whole topic does not necessarily lead to the positions that Thales cites. One can advocate on behalf of the natural rights and, perhaps more properly, natural authority held by a parent while not admitting the quite different thesis that one somehow has a right to become a parent. So one needn't endorse---and one's position needn't by force of logic support---the long list of modern abominations about which Thales is rightfully concerned simply because one takes a strong view of the rights and authorities of parents and a dim view of state interference with the same. (Divorce may be a slightly different case, since it's not an instance of people attempting to become parents by artifice; but the damage caused by divorce is wreaked by parents making decisions without regard for their responsibilities and authority qua parents. So I don't think recognizing and protecting parental interests need relate to the permissiveness of divorce simply because parents choose it.)
Posted by: Titus | Jun 26, 2013 11:52:27 AM
One of the reasons this case is so interesting is that it at least begins to chip away at the Indian Child Welfare Act, which does not hold that parents have rights over their children, but that tribes do. So, under current law, the father could have chosen to allow for an adoption and the tribe could have intervened to stop it. That's why Justice Thomas's opinion bears reading. Children are not commerce; tribes should not have ownership of them; hence his discussion of the commerce clause.
Posted by: Susan Traffas | Jun 26, 2013 4:08:19 PM
Justice Sotomayor's dissent in a footnote discusses his concerns (which are worth thinking about -- such "Indian federalism" concerns was raised, e.g., in a book on Indian law written in the p.o.v. of the Indians), noting the Treaty Clause also is involved here. Commerce can involve family members crossing state lines though such as absentee fathers who cross state lines & are in arrears for child support.
Also, the "ownership" concern of Susan Traffas is notable, but the children are often not the owners of their own fate. Their parents often have a veto. Here, for various reasons, the tribe has an interest too. This is a special rule but is not only applied here. For instance, the Establishment Clause is not among the liberties applied to the tribes since some tribes have official religions as part of their sovereign rights, something states are not allowed to have.
Posted by: Joe | Jun 29, 2013 10:21:10 PM
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