ACLU sues to overturn reality

By William C. Duncan

Last week, local news reported a lawsuit filed in federal court by Utah’s ACLU affiliate to force the state to recognize the same-sex spouse of a mother who conceived using “donor” sperm (these kinds of “donations” are typically paid for) from an anonymous man.

The lawsuit points to a state law that allows the husband of a woman to be treated as a child’s father if that husband consents to his wife’s use of sperm from another man. (It’s hard to imagine who thought this was a good policy for the state in the first place.[*]) The argument in this case is that if a husband can be treated as a father, a wife should be as well. In fact, the complaint says the U.S. Constitution requires thus result.

The glaring problem with this line of argument is that there is a reason the state might treat a husband as a father but not a wife. Namely, that a father is a male parent. Unless the U.S. Constitution can be read, implausibly, to require the government to pretend there are no differences between men and women, this is not a very compelling argument.

Whatever the flaws in Utah’s misguided law, it at least has the virtue of recognizing the obvious — that the word “father” is a gendered term. Utah’s laws consistently recognize the principle that children deserve to be reared by a married mother and father. The federal courts may force the state to comply with its dictates that marriage just means an association of any two individuals for no purpose larger than adult satisfaction. Surely, their hubris can’t extend so far as to require the state to pretend that a father and a mother are interchangeable.

The ACLU’s problem is not really with Utah’s statutes but with reality. Children still require a mother and father for their existence. If there’s an exceptional circumstance where the mother and father can’t care for the child they create, adoption provides a legal channel to assign parental rights to others while prioritizing the interests of children over the desires of adults.

Good public policy demands that the government not undercut children’s entitlement to a married mother and father by endorsing the truly radical notion that mothers and fathers are fungible, neither essential to a child. It most definitely should not endorse the idea that adults need not take responsibility for the children they create.


[*] Why would the state want to create a class of fathers who, uniquely, are relieved of responsibility for the children they create? Why not just use the normal legal process, adoption, for assigning parental rights to non-parents?

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