Commentary on Michael H. v. Gerald D.

In Michael H. v. Gerald D., the U.S. Supreme Court addressed a "marital presumption,"1 which established parental rights for the husband of a mother even if the husband is not the biological father. Writing for a plurality of the Court, Justice Scalia concluded that an evidentiary presumption that precludes a biological father from asserting parental rights does not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The case raised overarching but underacknowledged questions about how we define family, parenthood, motherhood, fatherhood, and children's interests. The Antognini rewritten opinion elegantly grapples with these questions by uncovering the detrimental impacts on parents and children because of the marital presumption's application in this case. Had an opinion like this prevailed, the legal regulation of the family would likely have progressed more quickly toward recognizing functional relationships over formal ones rooted solely in marriage. The opinion would also have ushered in deeper consideration of the role of gender and biology in legal determinations of parentage.