Court has created the mother of all parent traps

You thought I was kidding. On Sept. 6, 2003, when this newspaper endorsed homosexual marriage, I wrote a column ending “Beware: Those who call for nonsense will find that it comes.” And now a court says a child can have three parents … and counting. The decision strikes me as revolutionary. For starters, it makes polygamy all but inevitable. For if marriage, as two people of opposite sex, can be dissolved by any court and reconstituted as two people of any sex, and if parenthood, as up to two people, can be dissolved and reconstituted as three (or more), how long before a judge says all a child’s parents can be married to each other, especially if they all live together?

Perhaps we want polygamy and perhaps we don’t. But (pardon me while I blow centuries-old dust off the page) I think we should involve the representatives of the people in the discussion, not just judges. I mean, isn’t abolishing self-government also a bit revolutionary?

As for nonsense, what does it even mean when a court says you can now have three parents? Did no child have three parents until Tuesday? Or have people always had groups of dads and we never noticed? At bottom what is law? Does it create facts, or merely recognize them?

As I wrote in the Centre for Cultural Renewal’s Winter 2006 Centrepoints, the natural law tradition “regards fundamental law as like mathematics: that murder or theft should be forbidden is something we discover not something we decide or invent, just as 2+2 equaled 4 before man learned to count (and even if he never did). … The alternative positive law tradition says man invents law for his convenience, and only against this standard can it be measured and found wanting.”

Curiously, in most respects we are nearly all natural-law theorists today. We think everyone has inherent human rights (though we disagree about details) and a legal code is defective, or even illegitimate, to the extent that it fails to recognize and protect them. Yet when it comes to family law, we take a totally different view. I expect if courts redefined a table as a child we would send it to kindergarten.

My view of positive law is well expressed by the possibly apocryphal anecdote about Abraham Lincoln asking if a cow’s tail were a leg how many legs it would have, and dismissing the answer “Five” by saying a politician calling a cow’s tail a leg doesn’t make it one. Clearly we could not do math, build houses or sell eggs if 2+2 could be turned into 5 and perhaps later 28.7 or 4/ 3πr3 depending on our mood. And I very much doubt a social structure will hold up any better than a building if we presume we can make anything into anything else by reciting the appropriate spell. But I also can’t believe people always had extra parents and no one knew.

As for the claim that “reality is changing” in ways the law must reflect, the presence of loving adults besides their parents in many children’s lives certainly isn’t news. Indeed, I expect it used to be more common. But under the old definition these other adults were aunts and uncles, biological or honorary. (Even under old-style polygamy you had only one mom.) The title of “parent” belonged exclusively to the two people who dependably jumped out of a shared bed if they heard barfing sounds at 2 a. m. So unless the definition has changed, or was always wrong, it still does. Our changing habits cannot give Heather three mommies.

Nor can a judge. The old natural law was not obtuse or naive about families. Its adoption and child protection laws allowed the status of “parent” to be transferred from a biological progenitor or step-parent to another caregiver for a variety of reasons. But that status couldn’t be expanded. It had to be relinquished, or forfeited, by one person to go to another. Someone might have fewer than two parents but never more. And no cow ever had five legs.

The problem is not that this ruling gave a child a second “mother.” For better or worse gay marriage did that. The intolerable novelty here is that the court did so without delisting the original father. Allowing parents to multiply raises enormous practical problems of child support, access and so on. But behind them lurks a question of principle: Is it really true that you can have more than two parents at one time?

If so, everyone who ever lived, loved and raised a family misunderstood the word “parent” from the dawn of time until light shone down from the bench on Tuesday. Which is what Canadian law now says.

So beware: Nonsense is not just coming. It’s here.

[First published in the Ottawa Citizen]