Eagle Forum Legislative Alerts

Tuesday, October 07, 2014

“Best Interest of the Child” Leads to Same-Sex Marriage

I’ve been talking during these radio commentaries and in my new book Who Killed the American Family? about the legal concept called “the best interest of the child.” In recent years, those have been the magic words that let judges make decisions that rightfully should be made by a child’s parents. A recent oral argument in the U.S. Seventh Circuit Court shows just how easy it is for judges to use the “best interest of the child” phrase to enact their personal preferences.

This case was about same-sex marriage bans in Indiana and Wisconsin. Judge Richard Posner attacked the lawyers defending those bans by pointing to the children of gay couples. The judge demanded: “These children would be better off if their parents could marry, no? It’s obvious.” Such a question shows how arrogant and out-of-touch judicial supremacists can be. Centuries of experience and scientific data show that children do best when they live with a mom and a dad. If we followed Judge Posner’s reasoning, more children would grow up without enjoying the stability provided by the nuclear family. If he really favored a child’s best interests, he would be leading the charge for traditional marriage.

But Judge Posner isn’t worried about the best interests of the child. Like other judicial supremacists, he seized on a few words to overthrow entire laws. With a couple of off-hand examples about how same-sex marriage bans supposedly harm some children, he threatens to undo laws that actually protect the best interests of children.

With the phrase “the best interest of the child,” a judge’s power has no limit. He can remake laws, imprison people, and impose onerous penalties, based on his own personal preferences and prejudices, instead of on any law passed by our elected representatives. Instead of giving judges this invitation to abuse their power, we should return responsibility for a child’s best interests back to his own parents.

Listen to the radio commentary here:

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