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

Author:Mayeri, Serena
Position:IV. Avoiding Equality: Feminism and Fatherhood in the Supreme Court, 1980-89 B. Unwed Fathers vs. Husbands in the Supreme Court, Redux through Conclusion, with footnotes, p. 2363-2392
  1. Unwed Fathers vs. Husbands in the Supreme Court, Redux

    The direct involvement of feminists in Kirkpatrick and McNamara framed these cases as centrally concerned with questions of sex equality in nonmarital parenthood, but the Court decided neither on the merits. The two unwed fathers' cases that the Court did decide in the 1980s, Lehr v. Robertson (367) and Michael H. v. Gerald D., (368) included sex-based equal protection claims as well, but like the 1970s cases did not bear overt hallmarks of feminist intervention, and rendered mothers largely invisible. Lehr and especially Michael H. resoundingly rejected marital status equality for fathers and submerged almost entirely the sex equality questions simultaneously and starkly presented to the Court in Kirkpatrick and McNamara.

    1. "A Bias in Favor of the Formal Family": Lehr v. Robertson (1983)

      Jonathan Lehr and Lorraine Martz met after Lorraine's father was killed in Vietnam and Jonathan's mother, Helen, took the troubled teenage girl, estranged from her mother and stepfather, under her wing. (369) Jonathan and Lorraine became intimately involved and lived together sporadically along with Lorraine's daughter from a previous relationship, Renee. (370) Their daughter Jessica was born in 1976, and the couple was at one point engaged. (371) Lehr visited Lorraine and Jessica in the hospital after the birth but did not accede to Lorraine's request that they marry. (372)

      What happened next was the subject of vigorous dispute. Lehr maintained that he did everything in his power to ascertain Lorraine's whereabouts when she moved with her children to another part of New York State and then married Richard Robertson. (373) Lorraine insisted that Lehr showed no interest in Jessica until Richard commenced adoption proceedings, though Lehr visited with Renee on several occasions after Jessica's birth. (374) In any event, Lehr filed a petition to establish paternity in late January 1979. (375) However, filing a paternity suit was not one of the seven circumstances that entitled a putative father to notice and a hearing in adoption proceedings under New York's post-Stanley statutory scheme. Though all parties--including the judge--were aware of Lehr's paternity suit, the court approved Richard's adoption of Jessica, effectively foreclosing Lehr's parental rights. (376)

      The judge's apparent eagerness to finalize the adoption despite knowing that Lehr had petitioned for paternity disturbed several of the Justices. (377) But after passing on the first round of voting at conference, both Burger and Brennan voted to affirm the New York Court of Appeals decision upholding the adoption. (378) Burger assigned the majority opinion to Stevens, a dissenter in Caban. Stevens's first draft was, according to Justice Powell, "a mish-mash of an opinion. Can't believe JPS wrote it." (379) As law clerk Rives Kistler wrote to Powell, the first part of Stevens's opinion "refocus[ed] the constitutional inquiry," characterizing precedents such as Stanley, Quilloin, Caban, and the illegitimacy cases in ways that "give only grudging approval to the Court's cases that recognize constitutional protection for non-traditional family relationships." (380) Stevens explicitly endorsed "formal family" and recognized family relationships as superior, citing and quoting at length a recent article by Bruce Hafen, a prominent conservative law professor and Mormon leader. (381)

      As Hafen interpreted recent jurisprudence, the Court had not effected a revolutionary change in the laws of reproduction and the family in the 1970s. (382) Despite easing some of the legal burdens imposed on nonmarital children and their parents, legalizing contraception and abortion, and removing many overtly sex-based classifications from the law, the Justices-even at their most liberal and expansive-had never dethroned the marital family or formal family relationships. (383) Despite much wishful and creative thinking by liberal constitutional lawyers and scholars (and a few lower court judges), "marriage and kinship are still the touchstones of constitutional adjudication in family-related cases," Hafen concluded. (384) "The Court has limited some traditional policies, but has done so only in an effort to remedy exceptional inequities." (385) And critically, "[e]ven the exceptional cases have been treated in such a way that constitutional protection has not been extended to relationships between unmarried adults." (386)

      Stevens's majority opinion in Lehr seemed to ratify Hafen's account, even after Stevens removed the long quotations from Hafen's article. Stevens wrote to Brennan:

      I know the [Hafen] article as a whole exhibits a bias in favor of the formal family, but I do not believe that bias is any stronger than the stance the Court has taken in several opinions. I really think all of us would agree with each of the statements that Hafen makes in what I have quoted. (387) Stevens added, "I would rather have your vote than Mr. Hafen's quotation but wonder how strongly you feel about it." (388) Brennan eventually withdrew his objection to the longer Hafen quotation, but Stevens left it out after Powell registered his discomfort as well. (389) Still, the final opinion privileged the "formal family" and "recognized family unit." (390)

      Removing the extended homage to Hafen was not the only revision Stevens made to assuage his colleagues' concerns. Justice O'Connor expressed qualms about the treatment of the sex-based equal protection issue. Stevens had written in an early draft:

      Before birth, the mother carries the child; it is she who has the constitutional right to decide whether to bear it or not. And from the moment the child is born, the mother always has a relationship of legal responsibility toward the child. Because the natural father of an illegitimate child can often be legally and practically anonymous if he chooses, responsibility does not devolve upon him in the same automatic fashion. (391) O'Connor found this discussion "disturbing." (392) She "agree[d] that, as a practical matter, it is easier for the natural father of an illegitimate child to evade legal responsibility because of his anonymity." (393) She continued:

      I recognize that the clause 'responsibility does not devolve upon him in the same automatic fashion' is probably intended to be descriptive only. Nevertheless, the language contains connotations of approval of a scheme that imposes less legal responsibility on the natural father, and I would prefer to avoid any implication of that kind. (394) O'Connor thought "this generic discussion of the difference between natural mothers and natural fathers [was] not necessary" to dispense with Lehr's equal protection challenge. (395) Instead, she urged Stevens to rely on Quilloin and on Lehr's lack of a "substantial relationship" with his daughter. (396) Stevens revised the draft accordingly. (397) O'Connor's intervention appears to have been the first time a Justice expressed concern about the detrimental effect on women of basing superior parental rights on the assumption of weightier maternal responsibilities.

      In the end, none of the Justices disputed the majority's ruling that unmarried mothers and fathers could be treated differently in adoption proceedings so long as the father had not formed a significant relationship with his biological child and the mother had. (398) The majority and dissenters White, Marshall, and Blackmun disagreed over a different question: whether, given Lehr's efforts to form such a relationship--including the filing of a paternity petition--the strict application of the statute's requirements violated due process.

      Lehr somewhat cryptically confirmed that marital status was a legitimate basis for sex-differentiated treatment of parental rights and responsibilities. The briefing in Lehr addressed the sex-based equal protection question, with Lehr and his supporters arguing that to give notice and a hearing to all unwed mothers but only a select category of unwed fathers violated the principles articulated in Stanley, Caban, and the Court's constitutional sex equality jurisprudence. (399) Opponents argued that cases such as Parham had established the constitutionality of distinguishing between unmarried mothers, whose identity could easily be established at birth, and unmarried fathers, whose parentage often was shrouded in ambiguity. (400) Justice O'Connor's intervention saved the Lehr opinion from incorporating what she viewed as damaging assumptions about mothers' inevitable responsibility for nonmarital children, but White's dissent avoided the sex-based equal protection question altogether. (401) In denying even the most basic procedural rights to Lehr, the Court appeared to retreat from its earlier precedents. (402) And Reagan's next appointments to the Court would not bode well for nonmarital fathers' rights.

    2. Affirming Marital Supremacy, Avoiding Equality: Michael H. v. Gerald D. (1989)

      By the time the Supreme Court heard McNamara and Michael H. at the end of the 1980s, William Rehnquist, its most conservative member, had become Chief Justice, replacing Warren Burger. Conservative D.C. Circuit Judge Antonin Scalia had taken Rehnquist's seat as an Associate Justice. And, after a bruising and ultimately unsuccessful battle over the confirmation of conservative scholar and former Solicitor General Robert Bork, Ninth Circuit Judge Anthony Kennedy had replaced Lewis Powell, a swing voter in earlier nonmarital father cases. These appointments solidified the rightward shift that commenced with Nixon's appointments of Burger, Powell, and Rehnquist in the late 1960s and early 1970s.

      Having dodged McNamara, the Court decided Michael H. v. Gerald D., (403) another contest between husbands and fathers decided on due process grounds. Even more than Lehr, Michael H. buried questions of equality and almost entirely ignored the interests of women and mothers. The mother in Michael...

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