Five years ago in Obergefell v. Hodges, the Supreme Court held that a State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” In other words, “the constellation of benefits that the States have linked to marriage” must be made equally available to same-sex couples.
Complying with this mandate is not always possible. One example came to the Court in short order, due to the stubborn fact that even civilly married same-sex couples can never bring a child into being through their sexual acts, while opposite-sex married couples can, and do. In 2017, the Court confronted in Pavan v. Smith a legal entailment of this natural inequality. The Justices considered an Arkansas law that, basically, presumed the husband of a woman giving birth to be that baby’s father. The relevant state laws stipulated, more exactly, that “[f]or the purposes of birth registration,” “the mother is deemed to be the woman who gives birth to the child.” “If the mother was married at the time of either conception or birth,” the statute further instructed, “the name of [her] husband shall be entered on the certificate as the father of the child.”
The same presumption is obviously inapposite to same-sex couples. Arkansas law did not presume that what is naturally impossible, actually occurred.
The Supreme Court nonetheless issued a per curiam opinion in favor of two same-sex couples (all women) challenging the Arkansas law. The Court said that the Arkansas regime violated the “same terms” mandate of Obergefell. But the Court’s terse opinion did not entirely settle the matter. One reason is apparent from the Justice Gorsuch’s dissent, joined by Justices Thomas and Alito. They wrote that “it is not even clear what the Court expects to happen on remand that hasn’t happened already. The Court does not offer any remedial suggestion, and none leaps to mind.”
It is equally apparent that the Court did not mean to invalidate a birth certificate regimen, which was not so much about spousal benefits — as the majority thought Arkansas’s was — as about biology; that is, a paternity presumption founded upon reasonable state interests in public-health statistics and in establishing the genetic lineage of each newborn. The concern here is for memorializing the relationship of the biological mother and the biological father to the child, not with the marital relationship of husband and wife. The dissenters, again: “nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”
Indeed. Many and probably most states when Obergefell was decided had laws generically similar to the one struck down in Pavan. Since then, several have been challenged; the Seventh Circuit declared Indiana’s incompatible with Obergefell in January 2020 (in Henderson v. Box). Further litigation in other states is inevitable. As these anticipated lawsuits go forward, it would behoove those defending the presumption-of-husband paternity laws to consider a third way of understanding, and thus of justifying, them. The central meaning of this so-far neglected rationale is signaled by another common name for these laws: presumption of “legitimacy”.
The basic idea here is neither strictly biological nor specifically about spousal benefits. It includes but transcends nature and legal prerogatives. “Legitimacy” here signifies a moral foundation for the presumption of paternity, which these laws recognize and, in a modest way, promote. This presumption points to the unique and great value of children coming to be through the sexual intercourse of the married couple, so that offspring are (in the telling phrase of inheritance law), “issue of the marriage.”
“Issue” indicates that children embody or actualize their parents’ marriage. Just as the married couple is two-in-one-flesh, so too each child is the two-of-them-in-the one-flesh. The child comes to be as their marriage; each and every “issue” is wholly and entirely the embodiment of the same two persons united in the same act by which they — the mother and father — express their union. In this wondrous manner each child is his or her parents’ marriage, extended into time and space and thus into human history and into the human community. This web of familial connectedness and common identity is one wellspring of the love, duty, and loyalty that we usually see, and always hope to find, among siblings.
The radical equality, mutuality, and identity shared by family members are not dreamy metaphysical abstractions. They are not metaphors. They are not symbolic ways of indicating the presence of emotional ties, or even of love. The family matrix is as real as anything social scientists could measure, and much more sublime. The unbreakable cords of identity that family members possess, and which distance and alienation never quite erase, depend on this biological matrix suffused with, and sealed by, marital lovemaking as the source of life.
One might counter this way of explaining the presumption of legitimacy by saying that it is an antique, because “illegitimacy” has lost almost all its moral oomph. In two senses, it has. One is a welcome development. For no matter how any human individual has to come to be — either through a hook-up or artificial insemination or marital intercourse or even as a result of rape — that individual has the same human dignity and worth and rights as every other human individual. Stigmatizing illegitimate children as “bastards,” or in any other way, is wrong. It is true, too, that births to unmarried mothers have become so common as to wear away the moral stigma of fornication. That is regrettable.
Neither of these two senses is, however, relevant to why the presumption of legitimacy should be retained and invigorated. It pertains only to situations where there is a marriage in the picture. The presumption in favor of a husband’s paternity operates as a presumption against marital infidelity. A married woman who gives birth to another man’s child and a married man who sires a child out-of-wedlock are both deservedly stigmatized for their adultery. Within narrow limits, these misbehaving spouses may be legally penalized for their infidelity, too (in divorce proceedings, for example). The legitimacy presumption is a small way in which the law disapproves of adultery, and prizes marital fidelity. It is a perceptible way of valuing the family matrix grounded in marital intercourse.
Of course, one might and many will object to the legitimacy presumption on Obergefell grounds, saying that it denies same-sex couples some “term or condition” of marriage which they are entitled by that case to enjoy “equally.” It is hard to see why. Any married couple could conceive a child through artificial means (insemination or by IVF). Obergefell might well mean that all these couples must be legally treated the same when it comes to registering births. As they would be, if in addition to a presumption of “legitimacy,” a state birth registration law made separate provision for registering all births of children so conceived, with pertinent details of the non-marital party (if any, in the case of an opposite-sex couple) who contributes to the process.
Same-sex married couples might nevertheless complain that, because they can conceive a child only through artificial means or via adultery, they are somehow disfavored wherever the law presumes legitimacy. This is to flail, not at the civil law, but at what nature and nature’s God have wrought. Or, it is to demand in the name of Obergefell that the law value the two-in-one-flesh union of spouses the same as it values producing children in, for example, lab dishes, and both of those the same as it values adultery.
Obergefell v. Hodges did not say or clearly imply that breathtaking proposition. No lower court or other lawmaker should presume that it did.