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Horowitz: Where’s the federalism now? Supreme Court forces Indiana to deny biology, declare adoptive mothers biological parents in same-sex couples



Saul Loeb/Getty Images

Remember all those "principled" hot takes about the need to keep the Supreme Court out of state issues, even when those state violations of election law infect a presidential election? The federal courts are forcing states to alter human biology on birth certificates, to comport with the demands of the rainbow jihad coalition for states not only to recognize gay relationships as marriages, but to record their adoptions as if gay partners biologically birthed the children. Where are the principled federalism arguments against this intrusion into the states' handling of marriage and family recognition?

This week, the "conservative" Supreme Court once against engaged in "judicial restraint" against an activist lower court by refusing to revisit a past activist ruling of its own that compels states to recognize adoptive same-sex couples as biological parents on birth certificates.

On Monday, the Supreme Court denied certiorari to the state of Indiana in Box v. Henderson, a case where an Indiana federal district court and the Seventh Circuit Court of Appeals stated that Indiana must record the "wife" of a woman giving birth through artificial insemination as a biological parent of the child. We already know that "follow the science" means follow flat-earth theories to the radical left, but these courts have now said that the 14th Amendment requires us to contort biology. Rep. James F. Wilson (R-Iowa) the chairman of the House Judiciary Committee back in the 1860s who helped draft the 14th Amendment, never envisioned this outcome when he spoke emphatically that the 14th Amendment was "establishing no new right, declaring no new principle."

By denying cert in this case, the high court demonstrates that we still don't even have four votes on the court to uphold biology and basic state powers. I'm sure all of those "principled" conservatives who were concerned about the Supreme Court getting involved in state election laws (that were already abrogated by lower federal courts) will cry states' rights in the face of federal courts getting involved in the illogical contortions of state birth certificates.

This case manifestly and disturbingly reveals the one-way ratchet that characterizes the Supreme Court, even with a supposed conservative majority. Once a radical ruling is issued, the majority of conservative judges will only debate the parameters of expanding that ruling, but will never roll it back. Once the ruling is expanded, they will make peace with it.

Anyone with a modicum of originalist jurisprudence must concede that nowhere in the Constitution is there a right to force states to recognize gay marriage. No conservative justice can justify maintaining the Obergefell decision. But of course, none of us expected that much from these people. What we did expect, however, was that at least the most radical expansions of Obergefell would be reversed.

This Indiana decision is built upon the Supreme Court's 2017 decision in Pavan v. Smith, exactly a year after Obergefell. In that case, the Supreme Court said that not only are lesbian couples in which one woman is impregnated through artificial insemination entitled to have both their names on the child's birth certificate, but also that the certificate must be as if the "husband" of the duo is the actual biological "father" of the child. John Roberts, even though he wrote the dissent in Obergefell, joined with Anthony Kennedy and the other four liberals. Justices Gorsuch, Thomas, and Alito dissented.

It's important to recognize that the 2017 Arkansas case went well beyond Obergefell. As is the case with all births from artificial insemination, Arkansas law recognizes the non-biological father on the birth certificate, governed by a different process from that for biological fathers on birth certificates. The state fully complied with the insane Obergefell decision and recognized same-sex couples and indeed placed the second "mother" on the birth certificate through the process used to record non-biological parents. But the plaintiffs wanted them to be treated as identical to biological parents, in defiance of nature, common sense, and sanity.

As Justice Gorsuch put it in his dissent in 2017, a state has an interest in preserving the integrity of biological birth certificates, "ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders."

This new case from Indiana would have been the perfect case to hear and use as a vehicle to reverse this radical opinion now that there are supposedly two more conservatives on the court. The fact that the court is allowing this to stand in the Indiana case means that either Justice Kavanaugh is joining Roberts in his desire to preserve all bad court decisions at any cost, or a combination of one or more of the others is reluctant to broach this issue.

How far we have fallen from just 2013, when Anthony Kennedy himself wrote in the Windsor case, "Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States." And "the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations."

More broadly, what this demonstrates about Republican judges (and politicians) is that they are not governed by some sort of consistent principle about the reading of laws, constitutional construction, respect for state powers, or the rule of law. The fix is in. When it comes to state decisions that interfere with the rainbow jihad's priorities, those policies are to be stopped at all costs. No belief in proper constitutional interpretation or the principles of federalism will change that outcome. If that requires courts to dictate to states that a human being can have two biological mothers, then so be it. It's "the law of the land" and all in "the science."

Contrast this to coronavirus fascism or the violations of election law this year. Suddenly, the Supreme Court discovers its affinity for state sovereignty. Why? Because that is what the political elites demand based on the political outcome of the legal question.

Anyone who still thinks we have a conservative court to stop the existing bleeding in the lower courts, much less to overturn past Supreme Court cases, is simply not paying attention. As citizens living in blue states, we are on our own. However, even if we win power in red states, we may as well live in blue states, because the federal courts are in charge. Federalism for thee, but not for me.
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