THE CONSTITUTIONALIZATION OF FATHERHOOD.

Author:Purvis, Dara E.

ABSTRACT

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court's opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father.

Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and the inheritance rights of children of unwed parents whose fathers died without a will echo the reasoning of the family law cases, including two unwed-father principles giving legal imprimatur to stereotypes about fathers. Across multiple areas of law, therefore, unwed fathers are not constitutional fathers.

It is not enough, however, to simply revive past challenges to such statutes: separate criticisms of each line of cases have not prompted reconsideration of the cases reforming family law, immigration law, or inheritance law individually. This Article identifies a new approach using modern precedents to provide a clearer theory of constitutionalizing fathers: Obergefell v. Hodges illustrates a methodology of analyzing claims that involve the unequal application of a fundamental right, and Sessions v. Morales-Santana provides the substantive rejection of gendered, parental stereotypes that fills out Obergefell's framework. The result is an unambiguous argument rooted in the Equal Protection Clause that will constitutionalize fathers across the law.

CONTENTS INTRODUCTION I. EQUAL PROTECTION ISSUES IN THE LAW OF PARENTAGE A. The Progressive Nature of Statutory Parenthood B. The Unequal Nature of Constitutional Parenthood II. GENDERED PARENTHOOD IN OTHER AREAS OF LAW A. Immigration Law: Transmission of Citizenship B. Inheritance Law: Intestate Inheritance of Nonmarital Children III. CONSTITUTIONALIZING FATHERHOOD: TAKING EQUAL PROTECTION AND GENDERED PARENTHOOD SERIOUSLY A. How to Constitutionalize Fathers B. Implementation C. Potential Objections CONCLUSION INTRODUCTION

When is a biological father not a constitutional father? The answer is surprisingly simple: when he is unmarried. Unwed biological fathers are not parents under constitutional doctrine as outlined by the Supreme Court until they take actions far beyond those required of unwed biological mothers.

Such unwed biological fathers may be legal fathers under state law identifying legal parents, so one might think that this gendered approach to constitutional parentage has been effectively mooted through legislative reform. The Supreme Court 's approval of gendered constitutional parental rights, however, extends into other areas of law where those areas intersect with determinations of parentage. For example, transmission of citizenship from one U.S. citizen parent does not rely upon any individual state's laws as to legal parentage, and the gendered treatment of unwed fathers and mothers in family law cases has been imported to justify gendered treatment of unwed fathers in their ability to transmit American citizenship. Similarly, children who claim inheritance from an unwed father who died without a will face the same gendered logic imported from family law into inheritance law.

The result is that unwed biological fathers are not constitutional fathers. Gender stereotypes about fathers in general have been used to justify treating unwed fathers starkly differently than unwed mothers. Previous challenges to such laws have used two different arguments: first, that the parent-child relationship is a fundamental right; and second, that such differential treatment violates the Equal Protection Clause. The challenges were largely unsuccessful, in part because courts used gender stereotypes positing that fathers and mothers are situated differently at birth to answer both claims, even as society and medical technology have developed in ways that fundamentally undercut such stereotypes.

Modern caselaw, however, provides a clearer approach. Obergefell v. Hodges (1) addressed an argument involving the combination of due process and equal protection issues, in which the fundamental right of marriage was unequally made available according to the gender of the spouses. The case demonstrates a methodology for such joint claims, focusing attention upon the message and effect of the unequal application of a fundamental right. Furthermore, Sessions v. Morales-Santana, (2) which assessed a statute related to the transmission of citizenship, provides the substantive evidence of the unconstitutional stereotypes upon which gendered parental status relies.

Gendered treatment of unwed parents is unconstitutional, most clearly so under the Equal Protection Clause. This Article demonstrates the harm of the existing constitutional doctrine and outlines a path to addressing it. Part I addresses the family law treatment of unwed parenthood; it describes both the statutory definitions of legal parenthood and Supreme Court cases approving of a starkly different constitutional parental right for unwed fathers and mothers. This Part also traces the development of the unwed-father principles to two key assumptions about fathers and mothers upon which family law and other fields rely. Part II illustrates the impact of family law constitutional doctrine upon other areas of law, using the examples of transmission of citizenship and intestate inheritance rights to show the ongoing effects of the earlier family law cases. In particular, the unwedfather principles are cited again and again outside of family law to justify continued gendered treatment of unwed fathers. Part III outlines how to equalize treatment of unwed fathers and mothers and constitutionalize fathers, using Obergefell v. Hodges and Sessions v. Morales-Santana to map out a modern understanding of the Equal Protection Clause's application to parentage statutes.

  1. EQUAL PROTECTION ISSUES IN THE LAW OF PARENTAGE

    Status as a legal parent is an odd legal creation in many ways. Most of the time, it is established through a largely invisible, uncontested, and informal process, although it is one of the most significant legal statuses that a person can hold. The methods and rules by which a person either self-identifies or is identified by a court as a parent are set by state statutes, yet one of the oldest fundamental rights identified by the Supreme Court is the fundamental right inherent in the parentchild relationship. (3) This Part outlines some of the statutory paths to parenthood, then explains why the constitutional status of parenthood is completely different than the statutory paths. Furthermore, the Supreme Court has repeatedly endorsed different constitutional paths to parenthood for mothers and fathers. By approving starkly different treatment of unwed fathers and mothers, the Supreme Court has labeled unwed fathers non-constitutional parents lacking constitutional rights and status.

    1. The Progressive Nature of Statutory Parenthood

      Every state has statutes defining legal parentage, specifying multiple ways in which an adult could assert their status as a legal parent to a specific child. The ways that an adult might claim status as a parent have multiplied in recent decades due to state legislatures adding new rules in a sedimentary process as the social acceptance of families and new fertility technologies developed. While parentage statutes have been generally progressive, the process of individually revising state laws results in some variety among states as to who is a legal parent; particularly in newer contexts such as surrogacy, (4) as well as contexts in which multiple rules identify multiple parents. (5)

      The oldest rule is the most common-sense rule of thumb: a woman giving birth is the mother of that child. (6) The marital presumption adds to identification of the mother; it establishes that when a child is born to a married woman, her husband is the legal father. (7) Because of the historical stigma against illegitimacy, the marital presumption was applied very broadly, even in circumstances where the husband's biological paternity was unlikely. (8) This also made sense in a world lacking reliable and accessible genetic tests, as presumably most of the time the marital presumption could serve as a proxy for genetic fatherhood. As the availability of genetic tests expanded, however, states retained the marital presumption and added proof of genetic connection as another method to establish parentage. (9)

      Reforms over the last few decades have complicated the picture even further. As it became more common for people to use donated sperm and eggs in the process of having children, states added provisions to their laws to establish that donors who used the services of fertility clinics or other medical professionals to provide their donations were excluded from the possibility of being identified as legal parents, along with the attendant responsibilities such as child support. (10) Similarly, as the use of surrogates to carry pregnancies to term became more widely available and utilized, some states established rules regarding whether surrogates would be identified or excluded from status as legal parents. (11) There are thus multiple entrances to the status of legal parent (giving birth, the marital presumption, genetic connection, etc.), as well as possible exits from that status (if the potential parent worked with a fertility clinic or other medical professional to donate gametes or serve as a surrogate).

      This reformation process, while significant, remains incomplete and ongoing. For example, some of the most notable current proposed changes appear in the most recent revisions to the...

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