Leave and marriage: the flawed progress of paternity leave in the U.S. military.

Author:Keefe, T.J.

Table of Contents Introduction I. The Origins of Paternity Leave in the Military A. The Social Value of Paternity Leave B. The Scant Legislative History of 10 U.S.C. [section] 701(j) C. Inferring Rationality: Why Marital Status Was Used as a Proxy for Fatherhood 1. Cost and Administrative Ease 2. Equitable Congruence with Adoptive Leave 3. Promotion of the Marital Family II. A Constitutional Challenge to Expedite Change A. The Equal Protection Clause and the Military Context B. Discrimination on the Basis of Illegitimacy 1. Reframing 10 U.S.C. [section] 701(j): The Child's Argument 2. An Overview of Illegitimacy: Cases and Theoretical Explanations 3. Applying Intermediate Scrutiny III. A Proposed Alternative Conclusion INTRODUCTION

During the summer of 2015, Navy Secretary Ray Mabus made headlines by tripling the Navy's allotment of paid maternity leave. (1) Although commendable, this expansion failed to increase the Navy's paternity leave allowance, which affords new fathers only ten days of paid leave. (2) Notably, due to limitations set by Congress, those ten days were exclusively reserved for sailors married to the mothers of their newborn children. (3)

Less than nine months after Secretary Mabus's announcement, Defense Secretary Ash Carter proposed sweeping changes to the parental leave policies of all United States military branches. (4) Carter's proposal called for a uniform twelve-week maternity leave and the expansion of paternity leave from ten to fourteen days. (5) Although Carter's proposal is still awaiting congressional ratification, early indications suggest his plan will do little to cure a lingering defect in the military's paternity leave policy: the use of marriage as an exclusive proxy for fatherhood. (6)

In a nation where more than 40 percent of children are born out of wedlock, (7) reason demands that we critically reexamine any policy that hinders the formation of parental bonds in nonmarital families. Although ten days--or even the proposed fourteen days--of leave might seem insignificant in the greater scheme of fatherhood, the military's current paternity leave policy promulgates two troubling assumptions: (1) unmarried fathers are somehow less deserving parents than their married counterparts, and (2) non-marital children are somehow less deserving of paternal care than their "legitimate" peers. (8)

This Note contends that the military's paternity leave policy, currently codified at 10 U.S.C. [section] 701(j)(1), is logically flawed, potentially unconstitutional, and sorely in need of revision. Part I examines the general societal value of paternity leave, the legislative history of 10 U.S.C. [section] 701(j)(1), and the faulty reasoning that likely led to the law's adoption in 2009. Part II imagines and assesses the viability of a constitutional challenge to the law on the basis of illegitimacy discrimination. Additionally, Part II demonstrates how such a challenge would call attention to the inherent shortcomings of the military's current paternity leave policy. Part III considers the implications of revising 10 U.S.C. [section] 701(j)(1) and advocates for a functional modification of the law that would afford all military fathers a fairer opportunity to spend time with their newborn children. Despite its seemingly progressive aims, 10 U.S.C. [section] 701(j)(1) manages to perpetuate a longstanding assumption about the insignificant role of unmarried fathers in American families and demands revision.


    The National Defense Authorization Act for Fiscal Year 2009 created the first codification of a uniform military paternity leave policy in the United States through its adoption of 10 U.S.C. [section] 701(j). (9) The law provides that, contingent upon approval from a serviceman's commanding officer, a serviceman may take up to ten days of paternity leave in connection with his wife giving birth. (10) Despite its flaws, the legislation provides married servicemen with a valuable benefit that few American men enjoy: paid paternity leave. (11) Given this relatively novel backdrop, any qualitative assessment of the military's paternity leave policy must be predicated on a clear understanding of the context and rationalities that led to its creation. This Part explores the background of 10 U.S.C. [section] 701(j) by first considering the social value of its aim, then by examining the provision's legislative history, and finally by speculating on Congress's reasons for using marital status as a proxy for fatherhood.

    1. The Social Value of Paternity Leave

      By establishing a paternity leave policy for the military, Congress implicitly acknowledged that such a policy served some worthy end. Although the precise details of that end are discussed at length in later sections of this Part, this Section considers the worth of paternity leave generally: What benefits are realized when fathers have access to paternity leave, and which stakeholders realize those benefits?

      A crucial preliminary matter in this discussion is whether fathers even use paternity leave when it is available to them. This inquiry is necessarily shaped by a number of case-specific factors--such as whether leave is paid, its duration, and socio-cultural norms--but is crucial to assessing the actual impact that paternity leave policies have on society. (12) Although American men face substantial "economic and social barriers that keep them from taking longer paternity leaves, such as inadequate access to paid leave and outdated workplace norms about male breadwinners," (13) recent international studies suggest an intuitive result: when paid paternity leave is available, fathers are more likely to take it. (14)

      Although no foreign sample can identically model the behavior of American fathers, a study that tracked the conduct of Spanish fathers after Spain introduced its thirteen-day paternity leave is particularly revealing. (15) There, a national paternity leave allowance that was much shorter than those offered in Germany and other Scandinavian countries, (16) but close to the ten-day mark currently set by the United States Military, (17) resulted in significantly more fathers taking paternity leave. (18) Interestingly, that study also found "the probability of being on childbirth leave [was] higher among those fathers working in the public sector." (19) Another study tracking fathers working in Quebec found that "establishing a nontransferable period of paternity leave in 2006 doubled fathers' leave taking--from 22 to 50 percent, and by 2011 that [number] had risen to 84 percent." (20) These findings suggest that, even when offered for limited durations, the mere availability of paternity leave makes fathers more inclined to take it.

      The proposition that fathers take paternity leave when they have access to it does not, by itself, do much to prove the value of paternity leave. Accordingly, this discussion now turns to whether paternity leave serves any real benefit to society. Given the relative scarcity of paid paternity leave in the United States, (21) much of the empirical research on this subject comes from studies conducted abroad. Despite this reality, the Department of Labor has summed up paternity leave as a policy that "can promote parent-child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace." (22)

      Various studies suggest that when fathers use paternity leave, there is a notable increase in how much time they spend with their children after that leave has ended. (23) Whether this is the result of fathers having greater access to father-child bonding time, or simply their acquisition of competencies that prevent mothers from gaining monopolistic expertise in child rearing, early father-child interaction has been shown to result in fathers spending more time with their children in the long-run. (24)

      Ultimately, it is this long-run increase in paternal involvement that provides one of the most compelling justifications for paternity leave. Although fathers can gain a greater sense of commitment from increased interactions with their children, research suggests that their children benefit significantly from those interactions. (25) Not only have children's school performances been shown to improve as a result of fathers taking advantage of paternity leave quotas, (26) but increased father involvement with children has been linked to a decrease in adolescent behavioral problems (27) and improved social functioning in children. (28) In light of this research, the expansion of paternity leave policies in America should be viewed as an attempt to benefit not only fathers, but also their children.

    2. The Scant Legislative History of 10 U.S.C. [section] 701(j)

      Interestingly, the Navy's initial proposal to Congress for a suitable paternity leave policy was for a longer and more inclusive leave. (29) To some extent, congressional compromise in 2008 shaped the codification of the shorter, marriage-based policy. (30) In light of these modifications, an understanding of the provision's legislative history is necessary to help decipher the rationalities that led to its creation.

      Even today, American parental leave policies are some of the least generous in the developed world. (31) As discussed previously, Congress's adoption of a uniform paternity leave policy for the military was, to some degree, a very progressive step in 2009. (32) Despite its progressive nature, the precise origins of the policy set forth in 10 U.S.C. [section] 701(j)(1) are not readily discernable from its legislative history. This is due, in part, to the sheer enormity of the bill that created 10 U.S.C. [section] 701(j), the National Defense Authorization Act (NDAA) for Fiscal Year 2009. (33) The NDAA is a complex and comprehensive annual spending authorization that provides funding for the entire Department of Defense and the national security...

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