It is inevitable, in a nation of laws, that Courts should become involved in those highly emotional matters of life and love and family fights. This is not limited to the typical questions of custody and alimony, divorces or adoptions, birth and deaths, which are hard enough. Constitutional rights sometimes become entangled in those issues as well. Courts have had to decide such quaint questions as whether women could be prevented from dealing with the emotional toll of administering an estate (no), or whether a state could outlaw biracial marriages (no again). More recently, the Supreme Court added that the federal government could not deny federal marriage benefits to same-sex couples who were legally married in their states.
Same-sex couples continue to enjoy success in being granted the same rights as couples of the opposite sex. As a further example, two Florida women who had conceived a child together – one provided the egg, the other gave birth – brought one more question to bear. In their subsequent custody dispute, the state Supreme Court had to decide whether the first woman should be treated no differently than anonymous egg donors; or whether the couple should be looked at similarly to a man and a woman receiving the assistance of modern medicine to have a child together. The latter position prevailed.
But while same-sex couples increasingly enjoy seeing their rights recognized, fathers continue to be the black sheep of parental and family rights. To this day, under federal or Florida law (and I believe all or most other states), an unwed father only enjoys parental rights if he actively participates in raising the child. An unwed mother, on the other hand, can drop a newborn on the hospital’s steps, disappear for 15 years, and unless someone took steps to terminate her rights, she will likely enjoy undiminished parental rights when she returns.
The rights of same-sex couples are sometimes described as the next frontier in constitutional jurisprudence. I disagree. It is the current frontier, the one that is now generating headlines and garnering the attention of the courts. The next frontier just might involve revisiting the roles of fathers at the corner of Family Lane and Constitutional Avenue.