Daily Law Review Watch - February 19th
Marriage & Family
Throwing Down the International Gauntlet: Same-Sex Marriage as a Human Right
Vincent J. Samar, 6 Cardozo Pub. L. Pol’y & Ethics J. 1 (2007)
Part I will briefly overview the history of the Fourteenth Amendment to the U.S. Constitution. This post-Civil War reconstruction Amendment was seemingly designed to grant the full rights of citizenship to former Negro slaves, but was eventually read to guarantee every citizen rights against state authorities which were formerly held only against the federal government (incorporation). If these “same rights of citizens” are also the rights guaranteed to all persons by the Equal Protection Clause, then the right to marry the person of one’s choice, regardless of the gender of either party, would seem to be consonant with that broader reading. However, the issue is more complex because the United States., like most countries, does not declare the right to marry in any specific constitutional provision, let alone implicate the right to same-sex marriage in its national laws.
Part II will investigate various possible foundations for a substantive human right to same-sex marriage. It will argue that some variation on the philosopher Alan Gewirth’s rationalist approach to justifying human rights, while not without its detractors, would likely see same-sex marriage as but another variant on the privacy the Constitution already affords to opposite-sex marriage. The Gewirthian position also has the advantage of detailing a view of why secular societies may value the institution of marriage as arising out of a general human rights conception without limiting the idea to its historical opposite-sex applications (“instantiation”).
Part III argues that, should the Gewirthian view not find wide-ranging support for its stringent claims, it would still provide a formable basis for recognizing rights such as same-sex marriage in a world in which inherent human dignity can be seen as a limit to the legitimacy of state authority. Here it is hoped that even if a Gewirthian justificatory basis for same-sex marriage were not apodictic, there remains good normative ground for affording human dignity to such relationships based on their ontological connection to an important form of purposive action that many societies already recognize in relation to opposite-sex relationships.
As a complement to the perspective in Part III, Part IV will show how such respect, when incorporated into domestic constitutional law, need not prevent, but in fact must support, individual and group choices to opt out of such recognition (based on religious or other values), provided only that they do not directly impinge upon the equal rights under law of others to marry a same-sex partner. In this way, the system of human rights that emerges contemplates a means to accommodate people with incompatible beliefs and attitudes. It is highly improbable that any one view will be able to gain universal acceptance. One exception may be the freedom to hold contending views does, because it enhances maximal individual self-fulfillment. At the same time, this view recognizes that when certain highly desired institutional prerogatives are legally afforded to one group of people, they cannot then be withheld from another group absent proof of serious non-belief mediated harm to others.
Governing Parenting: Is There a Case for a Policy Review and Statement of Parenting Rights and Responsibilities?
Clem Henricson, Journal of Law and Society, Vol. 35, Issue 1, pp. 150-165, March 2008 Available at SSRN: http://ssrn.com/abstract=1091771
This paper addresses the governance of families in the context of a political philosophy that endorses a rights perspective in social policy and the need to promote transparent government. The status of parenting as a function of government has grown substantially under the present Labour administration and now commands cross-party support as a priority issue. However, it would be wrong to claim that there is a national consensus regarding the role of the state in supporting and regulating families in their upbringing of children. This paper assesses current parental rights and responsibilities in relation to financial support, and the physical and emotional care and control of children. Emerging themes and ambiguities are drawn out, and consideration is given to the need for a strategic policy statement embracing the broad ambit of government legislation, discussion documents, and commentaries. In conclusion, the case is made for a regular policy review and for a national debate as to whether there should an official statement of parents rights and responsibilities.
Making and Breaking Family Life: Adoption, the State, and Human Rights
Sonia Harris-Short, Journal of Law and Society, Vol. 35, Issue 1, pp. 28-51, March 2008 Available at SSRN: http://ssrn.com/abstract=1091765
This article explores the extent to which the state’s duties and responsibilities in the context of adoption are framed and reinforced by a rights-based discourse. It argues that the human rights paradigm plays an invaluable role in the pre-adoption process by identifying and imposing ever more exacting obligations on the state - obligations which are currently not being fully met by the Adoption and Children Act 2002. The application of a rights-based discourse to the post-adoption context proves, however, to be considerably more problematic. Indeed, it is argued that rather than extend and strengthen the state’s responsibilities towards the child and the adopted family, liberal rights-based doctrine tends towards a more traditional model of adoption in which a minimalist state and the privacy, autonomy, and self-sufficiency of the new adoptive family are further entrenched. It is thus concluded that a human rights analysis provides no secure basis for challenging the Adoption and Children Act’s rather limited provisions on post-adoption support.
Perspectives on Parenting Responsibility: Contextualizing Values and Practices
Val Gillies, Journal of Law and Society, Vol. 35, Issue 1, pp. 95-112, March 2008 Available at SSRN: http://ssrn.com/abstract=1091768
This paper critically explores the classed assumptions underpinning contemporary family policy, situating them within the context of broader political and theoretical debates about parenting responsibility. Analysis of policy documents over the past few years suggests that the family is being prioritized as a mechanism for tackling wider social ills such as crime and poverty. Families are portrayed as the building blocks for safe and sustainable communities, with good parents fostering and transmitting crucial values to their children which protect and reproduce the common good. Although the current government has pledged to support all parents, policy initiatives point to a class-specific focus on disadvantaged or socially excluded families. Poor parents are viewed as reproducing a cycle of deprivation and anti-social behavior and are therefore targeted for behavior modification. Drawing on research from a qualitative study of parenting resources, this paper will challenge the notion that social inclusion can be promoted at the level of the family, and will argue instead that parenting practices and values are grounded in social and economic realities.
The State as Parent: The Reluctant Parent? The Problems of Parents of Last Resort
Judith M. Masson, Journal of Law and Society, Vol. 35, Issue 1, pp. 52-74, March 2008 Available at SSRN: http://ssrn.com/abstract=1091766
This paper will explore the idea of the local authority as a reluctant parent. It will consider the extent to which this reluctance is produced by the care proceedings system and its consequences for children. Local authorities are both expected to refrain from intervening (care proceedings are a measure of last resort) and to be fully prepared for intervention (whilst leaving children with their parents). Amongst the themes which will be developed here are the impact of the juridification of social work and the emphasis on the courts for holding local authorities to account the balance between voluntary accommodation and compulsory care and the problems of resourcing care services. Its main focus will be on children who enter care because of abuse or neglect. Its thesis is that the conflicting expectations on local authorities, resource constraints, and considerations of legal process make them reluctant parents.