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Cruel, Cruel Irony

by Tony M.

The other way this could have been titled is:

    SC Justices Found Challenged in Intellectual Honesty

Now, many people might not like the SC decisions in one respect or another, thinking that they are bad in terms of philosophy, political acumen, etc. It is another thing entirely to find them short on intellectual honesty. But let me ask you, how would you describe the following facts?

I located the following points made by a Supreme Court Justice, made before this week's DOMA decision. The following points are from the opinion of Justice S:

Petitioners... devote many pages of briefing to arguing that the term “X” should be defined with reference to the law of the State in which an Z proceeding takes place. See Brief for Petitioners 19–29; Brief for Respondent. These arguments, however, are incon­sistent with our recognition in Holyfield that Congress intended the critical terms of the statute to have uniform federal definitions. See 490 U. S., at 44–45. It is therefore unsurprising, although far from unimportant, that the [rest of the court] assumes for the purposes of its analysis that Y is a [federal law] “X." [snip]

The [other side of the court] thereby transforms a statute that was intended to provide uniform federal standards for Z proceedings involving W and X into an illogi­cal piecemeal scheme.

But it is incongruous to suppose that Congress intended a patchwork of federal and state law to apply in Z proceedings.

Would it surprise you to find that
X = "marriage"
Y = a person possibly falling under the term X
Z = federal law that defines X in a different way than state law does?

The Justice S goes on to insist on applying federal statue and its definition rather than state law and its definition.

So, what's the problem? This opinion was rendered back in the mists of antiquity, back when people were bigots and couldn't think their way out of a paper bag. Or a more recent (but hardly more modern) justice like Scalia, who ought to have been born 150 years ago anyway, right? Say, Justice S is Scalia, in favor of the federal definition of marriage under DOMA, right?

No, no, this opinion came out before Windsor vs DOMA. Then it came out ages ago, like in 1930 or something, right?

Well, no. S is Justice Sotomayor, who overturned DOMA. Instead, the above quotes came out Tuesday, in a case on child custody. In actuality,
X = "custodial parent"
Y = an American Indian who is a biological father who abandoned the mother during her pregnancy;
Z = custody proceedings.

The decision was handed down Tuesday, not Wednesday, and the case was "Adoptive Couple vs Baby Girl". The majority let state law overrule the federal law on the matter, the minority opinion was written as above by Sotomayor upholding federal law instead, including specifically the issue of piecemeal state-by-state different outcomes.
So the first irony, of course, is that this Sotomayer, only 24 hours earlier, could not find her way to let state law apply and supercede a federal law definition for what is, fundamentally a state matter as such (custody), citing piecemeal issues, and wanted federal law definition imposed; but with DOMA she overturned it and could not leave federal law in place on what are primarily the federal effects of a typically state law proceeding.

The second irony is that Scalia joined her dissent.

The third irony is that Justice Thomas disagrees with Scalia, something fairly uncommon, and that he even deigned to write a fulsome concurring opinion, which he tends to do even less. What is not surprising is that in his view, the Constitution does not give Congress authority to write this federal law, at least not in such a way as to supercede state law on the matter, because the only constitutional provision available is Indian Commerce, and custody proceedings are decidedly not commercial transaction.

Comments (2)

Y = an American Indian who is a biological father who abandoned the mother during her pregnancy;

To be fair, the media is all over the place with the truth of this claim. One of the major claims made about him from one side is that he was sent on deployment and tricked by the mother into signing paperwork that supposedly gave her sole custody but in fact was aimed at depriving him of adoptive rights here. That he has waged a bitter battle to actually keep his child, and she's spent half of her life with him, should itself be strong evidence in his favor. Though I'm sure someone here can conjure up some "interests of the child" argument that would turn his paternal rights into a utilitarian calculation.

Mike, I am on record for having the law give unwed fathers virtually no rights whatsoever over custody of the child, with slight option in favor of accepting his preference for having the child adopted into a family of his own religion if the mother has no preference. That's about it. By getting a girl pregnant without being married to her, he ALREADY accepted not being the baby's father in the proper sense. He chose that intentionally: fatherhood in the proper sense involves making deliberate choices and acts of love, love that permanently (and socially) commits him to both the mother and the possible child. Without that, what he really did was an act of selfishness. Which isn't proper, human fatherhood, it is more the act of a brute animal.

I am not even totally in favor of leaving an unwed mother in charge of her child. Except for cases rape, that is. If the mother was a willing participant with the jerk of a father, then her act was also an act not of love for the child but selfish disregard of the child's good, an act of grave child neglect. The only reason I would not insist on this, is that in our culture insisting on it would result in even worse outcomes.

Although I don't have much to say about general Indian rights under this particular law, I find it more than a little appalling that the law apparently considers a child to be Indian if she is only 3/256ths Indian by blood (1.17%), AND that this happens whether the parent is (or has any intention) of raising the child within any Indian heritage, customs, community, practices, etc. To me, a law like that is just begging to be abused, and to get us into trouble with other matters - like child custody. I cannot believe, for example, that if one parent is Indian and the other parent is not, that the non-Indian parent's wishes about having Indian families adopt the kid are completely irrelevant, that the law simply runs roughshod over that altogether. A law written like that is just bad law, and I don't much mind if it is shot to pieces.

Finally, about the father: If there was any creditable evidence that he was going to be raising the child within a real marriage, I might have more sympathy for the argument about his efforts to get custody of her. To date I have not seen any data supporting that. I am not real keen on turning a child over to a single (never wed) father as opposed to an adoptive married couple, I don't think that the bio father's rights trump the child's rights to be born into, or raised into, a loving family. The fact that the bio-father brought the child into this world is far, far less important than the child's rights.

Which leads to: is the standard "best interest of the child" or not? Since I think that law that ignores the difference between a married dad and an unwed dad is gravely defective, I am not sure it really matters which standard ought to apply. Generally I am not in favor of "best interest of the child" as if it overruns EVERY other consideration. But it ought to trump the unwed father's rights, in both state and federal law.

Personally, I wonder that SCOTUS does not make more use of its authority to decide cases in equity. Or maybe I don't understand it well enough, I am not a lawyer. I have this feeling that what we have here is federal judges making law from the bench PRECISELY because they want to get a certain type of outcome X in specific case, so they distort a reading of the law as if to make it say X generally. Whereas, under decisions of equity, (if I grasp the concept properly) a judge has the capacity to say "the law really does say Y, but Y is in this exceptional sort of situation clearly not equitable and is not the sort of thing the legislature was trying to accomplish, so in this case Y is set aside." Decisions like that are by definition not precedential, so they don't carry over into saying "what the law means generally". In this case, the factors of the parents not being married, and the baby being only 1.17% Indian, and the mother not being Indian, and the father not having anything to do with the baby in terms of support, all suggest at least the possibility that Congress did not really envision the law to require jumping through all those hoops to adopt the baby out to non-Indian parents when no Indian parents offered (the Indian community knew about the baby and did not step up to the plate.)

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