Ok, maybe, but if nothing else, he has exposed more conservative judicial hypocrisy...
Recently I listened to Oral Argument in the case, Adoptive Couple v. Baby Girl, a very interesting, and incredibly contentious case out of South Carolina. There was a part of the conversation during Oral Argument that caught my eye, which shows either the hypocrisy of the conservative side of the bench, or where at least one conservative Justice might be looking is looking to go in one of the gay marriage cases.
Follow me below the fold for the rub...
I'll try to make as brief of a summary of this case as I can.
This case involves the child of a Native American man and a non-native woman, where the father relinquished his parental rights via txt-message, not realizing that the mother was intending on placing the child up for adoption. He sued to block the adoption under the Indian Child Welfare Act(ICWA), arguing that the law made a preference for him as the custodian of the child.
ICWA was passed in 1978 as a reaction to the appalling and pervasive practice in some states(which unfortunately continues today despite the law--see here and here) of involuntarily removing Native American children from their parents, destroying Native American culture, and leaving Native children blind to their cultural heritage.
ICWA does two things primarily to try to put an end to this practice. It gives tribal courts jurisdiction in cases of adoption of native children on tribal lands, and in all cases where a state is contemplating removing a native child from the custody of his or her native parent, it places a strong preference for keeping the child with a native family member.
The case raises all sorts of questions, and while one thing is clear: that the law didn't do a good job of contemplating this kind of case(even it's author acknowledges that), it's a different question as to whether the law covers it or not.
The conversation I mentioned at the top came up during the argument of Deputy Solicitor General Edwin Knedler. One of the things the law does is to define the terms "parent" and "child" for the purposes of the act, removing any state court definitions that may be less expansive. For this law, a parent is:
...any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or establishedFamily law in most states is a little more restrictive, usually taking into account whether or not the individual has custody of the child. There is a good reason to define it otherwise for this law, because you wouldn't want states to make an end run around the law by coming up with a highly restrictive definition of parents in order to evade this law.
25 USC § 1903(9)
That, however, led to the following conversation:
JUSTICE KENNEDY: As -- as you -- as you interpret the statute, "paternity is the biological sense," not -- not an -Consider that this case was argued on April 16th of this year, less than three weeks after the argument in United States v. Windsor, the case where conservatives argued that the Federal Government had the power to define what a marriage is(something which is also traditionally a state province) for the purposes of ANY federal law. The Deputy Solicitor General argued (with the somewhat surprising assistance of Justice Scalia) the obvious point, which is that we are dealing with the relationship between the states and the various Indian tribes, which are sovereign nations in their own right:
MR. KNEEDLER: Yes.
JUSTICE KENNEDY: -- not an existing parental relationship.
MR. KNEEDLER: No, a biological sense. But the establishment of -
JUSTICE SCALIA: It says that, doesn't it? A parent is -- is the -- the biological parent.
MR. KNEEDLER: Yes. It does.
JUSTICE SCALIA: That's what it says.
MR. KNEEDLER: Yes. But what I'm saying is, once -- in the unwed father situation, once the father establishes or acknowledges paternity, the father has a legal relationship, not just the -
JUSTICE ALITO: Well, family law is traditionally a State province, but your argument is that Federal law can take a traditional family law term like "parent" and perhaps others and give it a meaning that is very different from its traditional meaning or
its meaning under State law?
MR. KNEEDLER: Well, several things about that.
JUSTICE ALITO: Strike the "traditional meaning: But its meaning under State law.
MR. KNEEDLER: Well, several things about that. First, there are States -- the Casey amicus brief in footnote 7 identifies a number of States which recognize parental rights for a parent who has established or acknowledged citizenship. So the State law varies on that. And this was the -- one of the very problems Congress was concerned about with respect to Indian children, because -I find this dichotomy fascinating. Even more so, I find it amazing that Paul Clement, who is attempting to become the next Ken Starr, spoke at oral argument making the same case Alito outlined above on one side, but in the Windsor case as the advocate for BLAG, argued the exact opposite.
JUSTICE SCALIA: Wait. I didn't understand. Citizenship, who has acknowledged citizenship?
MR. KNEEDLER: I'm sorry. I meant to say paternity. Sorry.
JUSTICE SCALIA: Okay. I understand now.
MR. KNEEDLER: What you have here are people who are citizens of two separate sovereigns. An Indian tribe is a sovereign and a State. Congress tried to accommodate those competing interests by leaving the cases in State court, letting them be subject to State law, but subject to minimum standards to protect the people who are citizens -- or eligible for citizenship in the Indian tribe. That is a classic implementation of Congress's plenary responsibility in the Federal trust and guardianship for Indians, and nothing could be more at the core of tribal self-determination and tribal survival than the determination of tribal membership and
the care about what happens to Indian children.