Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers

• Citation: Vol. 54 No. 3
• Publication year: 2005

FATHERS AND THE SUPREME COURT: FOUNDING FATHERS AND NURTURING FATHERS

Nancy E. Dowd^*

Fathers have not fared well recently in the Supreme Court.¹Despite the predominance of men on the Court, fathers, especially unmarried fathers, largely have been treated as insignificant, irrelevant, and marginal parents. Their relational interests have gone unrecognized and unsupported.²While marriage may confer greater legal solicitude, that support of fathers recognizes their marital vows, not their parenting.³Yet this negative view of fathers is not entirely characteristic of the Court's recent decisions. The broad concepts of shared parenting and gender-neutral support of parents, as well as a consciousness and support of the range of families in contemporary society, are also a part of the Court's recent jurisprudence.⁴This inconsistency and confusion suggests that stereotypes of fathers run deep despite changing constitutional norms. It also suggests that the Court falls back on those stereotypes when it is in need of a basis on which to render a decision in a difficult case. Fathers can easily be used as scapegoats or simply ignored as irrelevant. But the Court should not use the fig leaf of fatherhood to cover an underlying concern that is difficult to articulate as coherent doctrine.⁵Rather, it is time to carefully examine and challenge the assumptions of the Court's view of fathers and recast constitutional norms. The constitutional norm of fatherhood should be nurture.

Many fathers who have sought recognition or support from the legal system would not be surprised by the negative outcomes in these recent cases.

According to the view of many fathers, the family law system is deeply biased against them.⁶Fathers express a range of opinions as to why this is so, some of which are strongly antifeminist,⁷even woman-hating.⁸Nevertheless, bias against fathers represents a highly visible sign of a deep negative societal bias about men's caregiving that belies the supposed legal preference for gender neutrality and shared parenting.⁹This perception may seem especially ironic given the continued dominance of male judges; the systemic bias comes from predominantly male decisionmakers.¹⁰Fathers perceive that either they have no rights (such as with respect to reproductive decisionmaking),¹¹or that their formal rights are not respected in application (such as rights to share in the parenting of their children),¹²and at the same time, that obligations, particularly financial obligations, are unfairly placed upon them.¹³Some fathers argue for a genetically-based status definition of fatherhood to correct the bias; that is, that fathers as biological fathers have inherent parental rights that must be respected.¹⁴Rather than a status-based definition, I argue that fathers' caretaking should be strongly supported by using a functional or relational definition grounded in actions. The actions that are the basis of rights should be acts of nurture, primarily in relation to children but also in relation to other caretakers.¹⁵

The disparagement of fathers is especially evident in two cases: Elk Grove Unified School District v. Newdow,¹⁶and Nguyen v. Immigration and Naturalization Service (INS).¹⁷In Newdow, the Court decided that a father lacked standing, literally lacked a right to be heard, on the issue of whether requiring his daughter to recite the Pledge of Allegiance with the words "under God" in the pledge constituted an infringement of First Amendment rights.¹⁸

The Court grounded Newdow's lack of standing in his status as a noncustodial father, despite his shared parenting of his daughter with her mother.¹⁹In Nguyen, the Court held that a differential standard for conferral of citizenship by fathers as opposed to mothers was justified based on inherent differences in the presumed parenting of mothers and fathers coupled with an argument of biological difference between fathers and mothers.²⁰Joseph Boulais' actual parenting of his son was totally ignored; instead, assumptions about men's assumed desertion of their nonmarital children, particularly when born to a noncitizen mother, justified a higher evidentiary requirement for children claiming citizenship through their fathers.²¹

These negative, stereotypic views of fathers seem especially out of place given the Court's position in other cases supporting a more progressive, pluralistic, contemporary view of parents and families. The Court has recently decided two other cases that seem to recognize a quite different view of fatherhood. In a case decided between Newdow and Nguyen, Nevada

Department of Human Resources v. Hibbs,²²the Court upheld against constitutional challenge the Family and Medical Leave Act²³as a proper exercise of congressional power to remedy violations of equal protection. In Hibbs, the Court noted not only the pattern of discrimination against mothers in the workplace, but also the denigration of fathers.²⁴The Court was very sympathetic to how the stereotypes mutually reinforce each other to the detriment of both mothers and fathers.²⁵Hibbs, then, is a virtual paean to fatherhood and gender-neutral co-equal parenting.

The second case that suggests a more positive view of fatherhood is Troxel v. Granville.²⁶In Troxel, a plurality of the Court upheld an unmarried parent's right to make decisions about the extent of contact and relationship between her children and their paternal grandparents, striking down the application of a broad third-party visitation statute.²⁷In the lead opinion, the Court acknowledged the broad range of family forms in contemporary society. The Court strongly defended the rights of single parents. At the same time, by the time the case was heard, the single mother had remarried and a blended family had been formed. A stepfather was now present, who adopted the two girls who were the focus of the litigation, perhaps making it easier to reject the argument by the grandparents that they were asserting the rights of their dead son.²⁸Troxel can be read as a case strongly supporting nurturing parents as well as appreciating the range of families in our society. The careful consideration of the rights of the grandparents, linked to the children through the father, also supports a more positive view of fatherhood.

Finally, the Court's recent decision in Lawrence v. Texas²⁹is another decision that suggests an understanding of relational ties and a range of privacy rights that honors the intimate relationships at the core of parenting. In Lawrence, the Court spoke in broad terms of the right of the individual to engage in meaningful relationships, based on the principles of autonomy, dignity, and liberty.³⁰Personal decisions relating to family relationships were included among those fundamental matters that the Court viewed as demanding respect by the state, as well as constitutional support:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the

State.³¹

This article critiques the Court's negative, stereotypic views of fatherhood, especially unmarried fatherhood, and argues that the Court should reconsider and refine its definition of fatherhood around nurture. The corrective for the Court's current view is not to revert to a status-based definition of fatherhood, but rather to reinforce and recast its prior fathers' rights decisions to establish a definition grounded on relationship and care.³²What should be discarded are outdated stereotypes about men as incapable, incompetent caregivers, as well as patriarchal norms of status and ownership based in genetic and economic fatherhood recognized exclusively within marriage.³³Instead, fatherhood must be grounded in nurture, a relational concept rather than a status definition. Incorporated into this standard should be the necessity of positive interrelationship with other caregivers rather than an articulation of fatherhood in isolation from mothers or other caregivers. It is essential to define fatherhood in egalitarian, cooperative terms-otherwise we risk recasting patriarchy into our constitutional standards. It is critical to recognize the gender challenges of recasting fatherhood without demeaning motherhood, as well as redefining fatherhood in ways that challenge traditional masculine norms averse to care and nurture. Finally, as part of the removal of patriarchal norms, the Court should rethink illegitimacy as a constitutionally valid category to divide and stigmatize children.³⁴

Part I of this article reviews the Court's recent decisions, with particular emphasis on Newdow and Nguyen. Part II explores the constitutional context of the Court's decisions with respect to fathers' rights, gender discrimination, and illegitimacy. Part III articulates the standard of nurturing fatherhood and justifies that standard based on the relational interests of fathers and children. Finally, Part IV discusses some of the implications of this standard and some arguments that might be raised in opposition to this standard.

I. RECENT DECISIONS

A. Elk Grove Unified School District v. Newdow (2004)

Newdow was a lightning rod for the Court because the case involved a challenge to the wording of the Pledge of Allegiance. ³⁵The Pledge originated in 1892 in conjunction with the 400th anniversary of Columbus' discovery of America.³⁶The first legalization of the Pledge occurred in 1942, when Congress codified the wording and other rules and customs.³⁷In 1954, the "under God" language was added in response to the rise of "godless" communism.³⁸Rather than determine whether the history and intent in adding the...