Commentary on Michael H v. Gerald D

Abstract

The U.S. Supreme Court case of Michael H. v. Gerald D. addressed a “marital presumption,” which establishes parental rights for the husband of a mother even if he is not the biological father. That the biological father cannot assert parental rights, the Supreme Court held, does not violate the due process and equal protection clauses of the Fourteenth Amendment. The case raised overarching but under-acknowledged questions about how we define family, parenthood, motherhood, fatherhood, and children’s interests. The Antognini rewritten opinion elegantly grapples with these questions by uncovering the detrimental impacts on parents and children because of the marital presumption’s application in this case. Had an opinion like this prevailed, the legal regulation of family would likely have progressed more quickly toward recognizing functional relationships over formal ones rooted solely in marriage. The opinion would also have ushered in deeper consideration of the role of gender and biology in legal determinations of parentage.