Foundling fathers: (non-)marriage and parental rights in the age of equality.

Author:Mayeri, Serena
Position:Introduction through II. The Emergence of a Feminist Dilemma: Parenthood, (Non

ARTICLE CONTENTS INTRODUCTION I. A LEGAL RENAISSANCE FOR UNWED FATHERS, 1960-1972 A. "An [E]lusive Ghost": Social Workers and Lawyers Discover the Unwed Father B. "Much is Not Challenged Until Now": The Court Confronts Equality for Unwed Fathers in Stanley v. Illinois 1. Sex and the Single Father: Stanley Before the Supreme Court 2. "The Mother-Father Dichotomy": Sidestepping Sex Equality in the Supreme Court II. THE EMERGENCE OF A FEMINIST DILEMMA: PARENTHOOD, (NON)MARRIAGE, AND THE SEX EQUALITY REVOLUTION, 1972-77 A. "An Ideal Case": Married Fathers as Equal Parents in Weinberger v. Wiesenfeld B. Fiallo v. Bell and the Feminist Argument for Nonmarital Parents' Rights C. "The Cart Before the Horse": Divorce, Fathers' Rights, and the New Nonmarital Bargain III. UNMARRIED FATHERS VS. HUSBANDS IN THE SUPREME COURT, 1978-79 A. Not a "De Facto Divorced Father": Rejecting Marital Status Equality in Quilloin v. Walcott (1978) B. "Shared By Both Genders Alike": A Qualified Triumph for Sex Neutrality in Caban v. Mohammed (1979) C. "Not Similarly Situated": Rejecting Sex Equality in Parham v. Hughes (1979) IV. AVOIDING EQUALITY: FEMINISM AND FATHERHOOD IN THE SUPREME COURT, 1980-89 A. Parenthood After the Sex Equality Revolution 1. "The Feminist Dilemma": Unwed Mothers Against Sex Neutrality in Kirkpatrick v. Christian Homes of Abilene 2. The ACLU Fights for Sex Neutrality in McNamara v. San Diego Department of Social Services B. Unwed Fathers vs. Husbands in the Supreme Court, Redux 1. "A Bias in Favor of the Formal Family": Lehr v. Robertson (1983) 2. Affirming Marital Supremacy, Avoiding Equality: Michael H. v. Gerald D. (1989) V. DIVERGENCES: NONMARITAL PARENTHOOD IN THE AGE OF EQUALITY A. Nonmarital Fathers vs. Divorced Fathers B. Justices vs. Feminists C. After the Constitutional Equality Revolution 1. Collateral Consequences: The Derivative Citizenship Cases 2. Beyond Marital Supremacy: Unintended Consequences? CONCLUSION INTRODUCTION

The twentieth-century constitutional equality revolution transformed the laws of marriage, divorce, and parenthood. As a matter of formal law, though not social reality, husbands and wives turned into spouses with identical rights and duties; divorcing mothers and fathers became parents with sex-neutral obligations of care and support. Formal equality under the law eluded nonmarital parents, however. Marital status remained a legitimate basis of legal differentiation. The legal primacy of marriage endured, even as rates of nonmarital cohabitation and childrearing soared.

Today, sex neutrality in the law of parenthood depends upon marital status. Mothers and fathers generally enjoy formally equal rights to the custody, care, and control of their marital children. In contrast, a nonmarital father does not possess the same parental rights--or responsibilities--as his female counterpart. And although nonmarital fathers won unprecedented legal rights and recognition as parents, they never achieved parity with married and divorced fathers.

Traditionally, fathers had few rights or responsibilities to their nonmarital children. In the early 1970s, nonmarital fathers seized upon emerging constitutional equality principles to challenge their inferior parental status. Over the next two decades, the Supreme Court decided a series of cases that first expanded and then contracted "unwed fathers'" constitutional rights. Behind the scenes, the Justices wrestled with, but to a surprising degree ultimately avoided, a central question presented by these cases: how the evolving jurisprudence of equal protection, which made marriage and divorce formally sex-neutral, should apply to the parental rights of nonmarital fathers. The Court also declined advocates' invitation to treat nonmarital fathers like "de facto divorced fathers" and to condemn discrimination based on marital status. Today, the unwed fathers cases are a mere footnote to the story of the constitutional equality revolution.

In the twenty-first century, as a widening "marriage gap" separates the well-off, highly educated haves from impoverished, less educated, have-nots, nonmarital parenthood is the dominant reality of American family life. (1) Yet, as Clare Huntington observes, "the marital family serves as a misleading synecdoche for all families," leaving family law ill equipped to address the needs of many families and communities. (2) An economically stratified legal regime reproduces fault lines based on race, class, gender, and marital status: many elite, college-educated couples seek relatively egalitarian partnerships and negotiate under a default rule of shared parenting, while the state's efforts to privatize dependency through stringent child support enforcement discourage parental involvement by poor fathers. (3)

The anomalous legal treatment of unmarried fathers looms large for commentators who decry family law's failure to protect nonmarital families. (4) Because parental rights and responsibilities are inextricably intertwined, mothers who bear the default burden of care and support also endure the consequences of sex and marital status inequality in parenthood. (5) Nonmarital children, who are disproportionately poor and of color, suffer from the use of marital status as a proxy for parental legitimacy. (6) Yet concerns about substantive sex equality left hardly a mark on the Court's decisions, and marital status remains a legitimate determinant of parental rights. This Article investigates how and why this came to be.

Before midcentury, the parental rights of nonmarital fathers barely registered as a question, much less a moral and constitutional dilemma. Unwed fathers, long deprived of legal rights and usually liberated from legal obligations, seemed largely irrelevant, except to the extent the state could call upon them to support children who otherwise would depend on public assistance. (7) Profound legal and societal changes recast the problem of nonmarital fatherhood in the 1960s and early 1970s. Rates of nonmarital childbearing rose; women's workforce participation grew; and divorce rates climbed. Whereas in earlier decades, most unmarried white mothers had relinquished their infants for adoption, more now raised them alone or with nonmarital partners. African-American women had long cared for nonmarital children with the support of extended families, largely excluded from public aid to the presumptively white "deserving poor" and from adoption opportunities. Now, poor women of color gained access to public assistance benefits, heightening anxieties about "promiscuity," "illegitimacy," and "welfare dependency." (8) Efforts to hold nonmarital fathers financially responsible for their children intensified. (9)

In this golden age of social movements, previously disenfranchised groups organized and fought for recognition and redistribution. Civil rights advocates dismantled de jure racial segregation. (10) Feminists attacked discrimination in education and employment, and sought reproductive freedom and equality in public and private life. (11) Anti-poverty activists fought for welfare rights. (12) Defenders of a more traditional social order found these claims deeply threatening. Conservatives charged feminists with destroying the very foundation of American society. Punitive welfare regulations such as "suitable home" and "substitute father" exclusions sought to deter nonmarital sex, limit welfare expenditures, and force poor men and women of color into low-wage work. (13) Many anti-illegitimacy laws were thinly veiled attacks on civil rights activism, (14) but even those who embraced African-American civil rights often believed a patriarchal family structure essential to racial progress. (15) "Fatherlessness," the corollary of "matriarchy," emerged as a perceived threat to family and social stability. (16)

Unlike divorced fathers, who mobilized to influence family law reform, (17) nonmarital fathers generally did not form organizations to advocate for their parental rights during this period. The plaintiffs in the unwed fathers cases were not handpicked for their sympathetic characteristics by advocacy organizations. Indeed, many of these men had checkered histories as partners or as parents and were represented by organizations with goals orthogonal to their own objectives and motivations. Various legal and social movements and interests buffeted the men who claimed the role of father outside of marriage. Feminists, civil libertarians, adoption advocates, child welfare organizations, lawmakers, and judges offered competing visions of the relationship between marriage, parenthood, and sex equality.

For feminists, the question of sex neutrality in nonmarital parenthood was especially fraught. Many influential feminist advocates--most prominently, law professor and ACLU lawyer Ruth Bader Ginsburg--promoted an egalitarian model of marriage in which mothers and fathers shared caregiving and breadwinning responsibilities. (18) In cases such as Weinberger v. Wiesenfeld, which extended Social Security "mother's insurance benefits" to widowed fathers, Ginsburg and her allies insisted on the importance of fathers' roles as nurturers of children. (19) The resulting constitutional sex equality canon primarily featured married couples or widowers seeking equal rights for husbands and wives. (20) How this gender-egalitarian model applied to nonmarital families remained an open question and one about which feminists increasingly disagreed.

The paramount importance of shared parenting to sex equality within marriage seemed evident. When feminists argued over the best way to promote egalitarian marital parenting through post-divorce custody rules, they disagreed primarily about means rather than ends. When feminists challenged laws and policies that withheld public benefits and private rights from nonmarital families, they differed over matters of strategy but agreed that such practices subordinated women, who most...

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