Does the Law and the Constitution of the Family Have to Change?

Abstract

The law and constitution of the family has been targeted for transformation in recent years, leading most notably to the Supreme Court's decision in Obergefell v. Hodges, mandating same-sex marriage as a matter of constitutional law. In this essay I undertake a thought experiment, asking how advocates of traditional marriage ought to want the law of marriage to change in light of this development. I begin by reviewing the argument for legal change sketched by Aquinas and then applying it to developments concerning marriage in modern America. Next I sketch the natural-law argument on behalf of traditional marriage. Finally, I turn to the case of Michael H. v. Gerald D., in which the Supreme Court upheld a statutory reiteration of the common-law presumption that the husband of the mother is the father of her child, against a challenge from the biological father, suggesting that this case, long admired by conservatives, needs to be reconsidered—and that the dissent in the recent Indian Adoption Case recognizing a constitutional right of biological parents might prove useful to the restoration of marriage law.