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As more children are born to unmarried parents, the social and legal preference for awarding paternity to the mother's husband becomes more outdated.
It especially does so when it stands directly beside the Ten Commandments, as it affirms no one religion enjoys legal preference".
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There are also times when legal policy preferences aren't the same as policy preferences per se.
Kennedy relies on the work of his Harvard colleague Elizabeth Bartholet, who dismisses the legal system's preference for keeping children with their biological families as "blood bias".
"But the conferment of any legal protection of preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however long its culture, is deeply unprincipled".
Los Angeles County relies on about 80 retired social workers to perform family searches for the county's 16,000 foster youth, and the work is tedious and time consuming because the legal system gives preference to anyone who is related to the child through blood, marriage or affinity – including close family friends and neighbors.
There is little question that diversity as a legal justification for preferences is at risk.
The Supreme Court limited the legal forms of preferences in 2003 and suggested that they had only 25 years left.
Mr. Kahlenberg, the author of "Affirmative Action for the Rich: Legacy Preferences in College Admissions," said a legal challenge to legacy preferences is becoming likely.
Donors and recipients were not related, in contrast to the usual preference for legal and medical reasons.
The latest controversy to engulf the chief justice comes less than two months after an outgoing colleague, Alan Wilson, said Carmody had "lost all respect" of his peers because of his hypocrisy, his lack of demonstrated legal ability and his preference for public relations over court work.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com