Making Marriage Law Quaint Print
By Hadley Arkes   
Tuesday, 07 June 2011

In the late 1980s, the Supreme Court was invited to make one of its rare visits to the fashions of sex and marriage as practiced by the rich and dashing, in their dalliances between coasts and continents. The case was Michael H. v. Gerald D. (1989). Justice Scalia, writing for the Court, remarked that “the facts of this case are, we must hope, extraordinary.” But last week, the Supreme Court of Kentucky dealt with a case that shared some of the same defining ingredients, and it leads us to suspect that these escapades are getting less extraordinary all the time.

The case of Michael H. and Gerald D. had these features fit for the tabloids at the better supermarkets: Carol D., an international model, had been married to Gerald D., an executive in a French oil company, and the couple were living in Playa del Ray, California. The two were often flying separately out of the country, and  in the whirl of things Carol fell into an adulterous affair with Michael H., a neighbor. A child was conceived, a daughter born in May 1981. 

Carol suspected that Michael was the father. Blood tests seemed to confirm rather strongly that he was. Gerald moved with his business to New York, and Carol for a few months took her daughter to live with Michael in St. Thomas. She left Michael, though, but instead of joining Gerald in New York, went to live with another man, Scott, in California. She signed a stipulation acknowledging Michael as the father of her daughter, but then she refused to file it – and moved to rejoin Gerald in New York. Gerald, ever affable, was willing to have Carol back and to represent the daughter to the world as his own.  

Michael had the privilege of extended visits with his daughter, but he wanted more. On the strength of his claims as the “natural” father, he wanted legal standing in his relation to the child. But Carol and her legal husband held to the ground of their legal marriage:  they would not concede to Michael any claim to insinuate himself within the family with a legal authority that could disrupt relations within the family. As Justice Scalia remarked, the laws of California, as in nature itself, resisted two fathers. Scalia and his colleagues sustained the laws of California and rejected those claims of “nature” asserted by Michael.

In Kentucky, a woman identified as J.A.S. was married in 1999, and with her husband begat a child. But she became involved in an affair with C.H.E. in 2007, lasting several months, without the knowledge of her husband. In fact, her marital  sexual relations with her husband had continued, uninterrupted, and so nothing seemed irregular when she conceived another child. News came to the husband when C.H.E filed a claim of paternity to get legal standing in the life of his newborn daughter. In this case, the paramour could bring in DNA evidence, with a probability of .999 that he was the father.  Despite the jolt, the husband wished to keep his family and his marriage intact. And as in the case of Michael H. and Gerald D., the woman at the center of the story did not wish to dismantle the marriage and give any authority within the family to her paramour.

But J.A.S curiously ran into laws that had been made to protect women against men who sought to deny their responsibility. In the laws in Kentucky, a child born “out of wedlock” could be born to a woman who was married, though not married to the biological father. Still, it was thought in the past that only the husband or the wife had standing to make that claim. The claim had not been sustained in the past for a man not denying his responsibility, but affirming it as the ground for further rights. In this case, the Court in Kentucky reached a decision quite at odds with the one reached twenty-two years earlier by the U.S Supreme Court: The child would be declared “out of wedlock,” with standing conceded to the “natural” father.

But what the judges missed was that “nature” encompassed more than biology. If biology were enough, the injunction to “honor thy father” would cover the man who sired us in the course of a rape. It is a distinct part of human nature though to respect a commitment or obligation even when it runs counter to one’s inclinations. Marriage as an institution depends on that merger of biology and morality in a vow and a commitment.  

The court in Kentucky was being asked to respect the claims of marriage as an institution as against the claims of nature springing from evanescent sexual relations.  Judge Cunningham in dissent remarked that “interlopers cannot use their own adulterous behavior as a license to invade and disrupt the matrimonial circle.” One professor of law remarked that the dissent “reads more as a period piece of a time when the courts enforced majoritarian morals, even to the stigmatizing of children.”

There was no stigmatizing of the child until the father, to assert his claims, invited the court to declare his daughter as born “out of wedlock.” Yes, how quaint:  there are judges who still find reason for respecting marriage as an institution defined critically by the presence of a commitment made firm in the law.

Hadley Arkes is the Ney Professor of Jurisprudence at AmherstCollege. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law

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