Colonel Hyman, in the Conservatory, with "The Point"

If you’re even a sporadic viewer of shows like Law & Order, you know that when investigating a crime, a key factor in unraveling the mystery is to determine the motive behind it.

I’ve come to see Mark Hyman’s “Point” commentaries as an ongoing series of assaults on the public sphere, and his latest is no exception. The interesting question is what is the motivation behind this particular mugging of rational discourse?

The topic of the commentary is the Supreme Court’s decision not to take on a case involving the parental rights of a same sex couple. In Britain v. Carvin, two lesbian women who had a child with the help of a mutual gay friend are contesting the right of Carvin to petition for parental rights. When the child was seven, Britain and Carvin separated. Carvin petitioned for parental rights (since Britain had actually given birth to the child, she was the default “parent”). Britain then married the biological father who, according to court records, now lives in Thailand.

To hear Hyman describe it, the Supreme Court all but handed over the child to Carvin. But that’s not the case. The court simply let stand a lower court’s ruling that allowed Carvin to have her day in court. She might not get even partial custody. All she gets is a chance to make her case. It will be up to the family court to sort out the specifics of a very complex case.

Hyman says the decision goes against precedent and will make the issue of parental rights “as clear as mud.” But that’s not true. The case Hyman cites as precedent (one of the only times SCOTUS has weighed in on family law) had to do with a contest between a mother and the parents of her deceased husband. In siding with the mother, SCOTUS recognized the parental rights of primary parents vs. extended family. That’s not the issue in Britain v. Carvin, where both women served as parents to the girl for seven years.

So what’s up? What’s Hyman’s motivation? Is it really a sincere (but erroneous) belief about the niceties of appellate jurisprudence?

Hardly. Do a quick Google search of the case, and the evidence of motive emerges. Far-right conservative groups are engaging in wailing and gnashing of teeth about this because they see the SCOTUS decision not to intervene in the case as a tacit endorsement of the rights of gay and lesbian parents. They feel the child should be awarded to Britain, who has done the right thing and gotten married (never mind that the marriage is between a lesbian woman and a gay man, that it was apparently entered into as a legal tactic, and that the husband lives on the other side of the planet).

Hyman doesn’t say anything explicit about gay adoption being morally wrong or same-sex marriage being evil. He doesn’t have to. The subtext is crystal clear: the existence of gay “families” threatens the institution of real families.

That, of course, is utter bunk. I have no idea if Ms. Carvin is owed parental rights in this specific case. Perhaps the court will find that she is an unfit parent and award Britain full custody. But as someone who was a parent to the child in question for seven years, Carvin is at least owed a chance to make her case. And that’s all the SCOTUS decision to pass on the case did.

In the abstract, you’d think that conservatives would agree with this. After all, they bemoan “activist” judges and are generally of the opinion that the legal affairs of individual states shouldn’t be tampered with by the federal government.

But when it comes to issues involving gays and lesbians, all logic and philosophical consistency goes out the window. We end up with the absurd spectacle of right wingers arguing on behalf of the parental rights of a gay man simply because he entered into a faux marriage with the mother, at the expense of a single parent whose main crime is being a lesbian who isn’t married to a man.

Maybe the silver lining here is that it suggests a way for gay men and lesbian women to do an end run around the demagoguery about same-sex marriage and gay adoption: just marry each other, then live wherever and with whomever you want. Apparently the radical right is more concerned about whether there’s a boy and a girl on top of the wedding cake than they are about the actual emotional substance of marriage and parenthood.

And that’s The Counterpoint.

Hyman Index: 3.00