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Michael H. v. Gerald D.

A Case Study of Political Ideology Disguised in Legal Thought

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International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique Aims and scope Submit manuscript

Abstract

The author attempts to apply semiotic analysis to a question of family law. By examining the language used by the Supreme Court in the title case, Michael H. v. Gerald D., along with the case briefs, lower court opinions, other Supreme Court cases and prior legal scholarship, the author attempts to determine the requisite relationships between father–child and father–mother in order for a legal tie to exist between a father and his biological child. The author tries to not only determine the necessary circumstances but also the political ideology that distinguishes these familial ties. The author further attempts to analyze the goals of these underlying political ideologies.

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Notes

  1. Justices O’Connor and Kennedy join in all of the plurality opinion except footnote 6 which concerns the plurality’s historical traditions methodology.

  2. From this reasoning, the plurality concludes that Justice Brennan would likewise find a constitutional liberty interest for a rapist in his child begotten by rape. Michael H., 491 U.S. at 124 n.4 (plurality opinion). However, the plurality does not seem to consider that rape can occur within a marriage and by the plurality’s reasoning this would allow a rapist to have rights to his child even if he has never had contact with the child. Whereas, from Justice Brennan’s reasoning the child would have needed to form a psychological bond with the rapist, lived with him, and been financially supported by him.

  3. In this context “punishment” does not refer, as it normally would in law, to criminal behavior, but instead to non-criminal behavior that is still seen as unwanted, and, this “punishment” places a person in a worse position in an attempt to alter societal behaviors.

  4. The plurality repeatedly refers to the extant marital family, apparently viewing marriage as extant as long as no divorce has taken place considering the facts of this case. Michael H., 491 U.S. at 127, 128 (1989).

  5. A therapeutic abortion is induced when the pregnancy constitutes a threat to the physical or mental health of the mother. Merriam-Webster’s Medical Dictionary, 20 April 2008. http://medical.merriam-webster.com/medical/therapeutic%20abortion.

References

  1. Balkin, J. M. 1989–1990. The Hohfeldian approach to law and semiotics. University of Miami Law Review 44 (1119): 1120.

  2. Michael H. v. Gerald D., 491 U.S. 110 (1989).

  3. Brief for Appellee, Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87–746), 1988 WL 1025582.

  4. Brief for Appellant Victoria D., Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87–746), 1987 WL 880074.

  5. Michael H. v. Gerald D., 191 Cal. App. 3d 995 (Cal. Ct. App. 1987).

  6. Silber, Bonnie Baxt. 1992. How irrebuttable is the irrebuttable presumption of paternity in section 621 of the California Evidence Code? An examination of Michael H. v. Gerald D. and its Aftermath in California. Journal of Juvenile Law 13: 159.

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  7. Loconto, T. Carmen. 1992. Family law—the substantial relationship test: The putative father gains standing to rebut the presumption of legitimacy–C.C. v A.B. Western New England Law Review 14: 79.

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  8. Rogers, Brie S. 2001–2002. The presumption of paternity in child support cases: A triumph of law over biology. University of Cincinnati Law Review 70: 1151.

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  11. Beckerman, Stephen, Roberto Lizarralde, Carol Ballew, Sissel Schroeder, Christina Fingelton, Angela Garrison, and Helen Smith. 1998. The Bari partible paternity project: Preliminary results. Current Anthropology 39: 164.

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  12. Lin, Timothy E. 1999. Social norms and judicial decision making: Examining the role of narratives in same-sex adoption cases. Columbia Law Review 99: 739.

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Authors and Affiliations

  1. Dickinson School of Law, Pennsylvania State University, Carlisle, PA, USA

    Jeffrey A. Ellsworth

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  1. Jeffrey A. Ellsworth
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Correspondence to Jeffrey A. Ellsworth.

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Ellsworth, J.A. Michael H. v. Gerald D.. Int J Semiot Law 22, 105–122 (2009). https://doi.org/10.1007/s11196-008-9098-9

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