The New York Court of Appeals, the State’s Supreme Court, has inserted itself into the political debate concerning who is a parent. It’s entered the moral debate, too, but its ruling is a legal and political one:
New York’s highest court Tuesday upended how the state legally defines parenthood, reversing course on a 25-year-old ruling that had blocked many same-sex couples from seeking the court’s help in custody disputes.
Until now, New York only recognized as parents those with a clear adoptive or biological tie to a child, shutting out those who otherwise may have played a key role in a child’s upbringing.
The court ruled that going forward, a partner can seek visitation and custody if it is shown “by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” The court recognized that some people could even deserve custody if they came into a child’s life after the birth, but said now isn’t the time to set a rule for such situations.
The Court justified its ruling in this way:
Tuesday’s decision by the New York Court of Appeals said society has changed in recent decades and that families formed by gay couples need to be protected.
And there’s this by Susan Sommer, an attorney at Lambda Legal:
Finally, New York is bringing its law in line with the reality of thousands of children who need protection for their relationships[.]
No, even if society has changed, this is a political decision that legitimately can be made only by that society—the citizens of New York, themselves or through their elected representatives. The courts have no proper role to play in the political arena; they have only in a judicial one—which is to apply the law as it’s written (or strike it altogether if they can make the case that the law in question is unconstitutional). The courts’ role does not include making law from the bench.