ROUND THREE

MND Roundtable Discussion on
Fathers' Rights and the Marriage Movement

In relation to my comments, Tom Sylvester asks what “fundamental rights” have been wiped out? I can respond in relation to child support reform, but have also noted that the problem is broader and broadening with the help of the Marriage Movement. Literally, in relation to domestic relations law, parents are being denied constitutional rights; all constitutional rights, both those explicitly stated (like due process / "rule of law") and those derived from explicit rights and constitutional limits to government power (what we know as freedom).

Family law is no longer subject to the constitution because it has been recast by Congress as social / economic policy. Economic policy (taxes, prime interest rate, money supply, etc.) and so-called "social policy" are subject to a very low standard of constitutional review because they relate to collective rather than individual concerns. Noncustodial parents have not had difficulty arguing the merits of constitutional cases aimed at overturning the new laws but it has not mattered because judges, who now treat family law as social or economic policy, respond by claiming that parents have no constitutional rights.

The problem is not limited to Bill of Rights questions. The requirement of separation of powers between branches of government is also violated by the new domestic relations regime. Ordinary process of law, requiring judicial review of individual cases in view of facts, has been replaced by presumptive law (specific outcomes defined en masse by legislatures) subject to review by politically appointed committees that are often joined by members of state legislatures, representatives from child support enforcement, and others who profit from the new arrangement.

In real life of course nothing is more personal than family. Congress does not have the legal authority to eliminate fundamental rights by redefining reality, especially in areas like family law where it does not have authority to regulate to begin with.

Rebecca O'Neill raises such interesting questions that I find myself wishing we had planned a longer discussion with longer articles. I might still have a chance to address some things in the next (and last) round that I have so far left behind. Some social conservatives argue that extending family rights to unmarried fathers would reward men for irresponsible behavior. Should we be focusing on moral rather than legal rights?

Activist social conservatives of the sort Rebecca mentions are not political conservatives. They are people who will not acknowledge the fundamental rights of others. By and large, their intentions are not honorable; a fact that should not need to be explained in the modern world where we have formally defined defenses against intrusive and manipulative behavior.

"Responsible fatherhood" is a code name for child support enforcement. Fathers are told to cough up as much money as possible and - if they are good little boys - they might be able to see their children. Overall, child support practices have beome so heinous that some fathers have actually died from them because they are no longer able to support themselves.

Rebecca's questions are worthy questions. We would be an advanced and civilized society indeed if we would all grapple with them honestly. Personally, I would rather be building than battling. Just now, circumstances imposed by people Stephen Baskerville rather glibly calls "busybodies," call for a basic defense of human rights. We have no choice but to fight the good fight, for the sake of ourselves, our children, and our children's children ... The fight has been defined for us. We didn't start it.

I agree that the moral dimension is extremely important but must point out that false morality became the excuse used to defend immoral policies after the facts and logic used to establish them were discredited. Those of us who were focused on domestic relations reform noticed the transition. It was obvious to anyone who was really paying attention. Arguments that are incompatible with objective reality are being played as moral arguments.

For those who were not paying such close attention, the question should be restated. What moral edict calls for the elimination of basic legal rights? Since there is only one round left in this discussion, I will give my answer now: There isn't one.

Roger F. Gay