When fathers' rights are mothers' duties: the failure of equal protection in Miller v. Albright.

• Author: Collins, Kristin

Lorelyn Penero Miller was born in the Philippines on June 20, 1970. Like approximately 30,000 to 50,000 other children born in the Philippines during the twentieth century,(1) Lorelyn is the nonmarital child of an American serviceman father and a Filipina mother, Charlie Miller and Luz Penero.(2) In 1992 Charlie Miller recognized Lorelyn as his child and signed a Voluntary Paternity Decree in Texas state court "legitim[ating]" Lorelyn at birth under Texas state law.(3) With the paternity decree in hand, Lorelyn applied to the State Department for registration as a United States citizen and was promptly rejected. The State Department claimed that Lorelyn was not a citizen, because Charlie Miller had not legitimated her prior to her twenty-first birthday, as required by 8 U.S.C. [sections] 1409.(4) In 1993 Charlie and Lorelyn sued in federal court claiming that Charlie was the victim of unconstitutional sex discrimination. Their argument was straightforward: Federal law regulates American men's ability to transmit citizenship to foreign-born nonmarital children more rigorously than women's, violating Charlie's equal protection rights.(5) Although [sections] 1409 clearly employs sex-based classifications--generally a red flag for unconstitutional sex discrimination(6)--in a fractured decision in Miller v. Albright, a majority of the Supreme Court refused to hold that [sections] 1409 is unconstitutional.(7)

The lead plurality and dissenting opinions in Miller divided along a longstanding fissure in gender equal protection jurisprudence and feminist legal theory: the extent to which men's and women's physiologically distinct roles in reproduction justify sex-differentiated treatment of parents.(8) In the lead plurality opinion in Miller, Justice Stevens argued that [sections] 1409 does not trigger the Court's gender-equality jurisprudence, because with regard to nonmarital children, men and women are simply not similarly situated.(9) Disparate allocation of parental rights in such circumstances, Justice Stevens maintained in Miller, is not based on "stereotypes" and does not implicate the "gender equality principle" of the Court's sex-equality cases.(10) In the two dissenting opinions in Miller, Justices Ginsburg and Breyer articulated a very different understanding of equal protection as it applies in the context of reproduction and parenting. Emphasizing that the Court's 1996 decision in United States v. Virginia(11) had strengthened the rigor with which courts examine sex-based classifications, both dissenting opinions contended that the sex-differentiation of parents in [sections] 1409 fuels, and is fueled by, an unconstitutional gender-based "stereotype":(12) "[a] close connection of mother to child, in contrast to [a] distant or fleeting father-child link."(13) Employing doctrinal and historical analyses, Justices Breyer and Ginsburg concluded that the injury caused by [sections] 1409 is one of mistake: It wrongly assumes that women's physiological role in procreation ineluctably results in increased maternal rights, and that men's noninvolvement in gestation and childbirth necessarily translates to diminished paternal rights.

In Miller, the legal significance of sex-based differences in procreation becomes the touchstone of the debate between the plurality and the dissenters concerning the appropriateness of sex-based allocations of parental rights. In this respect, the case is unexceptional: Biological difference has been the focus of disagreement in the Court's attempt to define the limits of equal protection jurisprudence as applied in the contexts of parenting and reproduction. Likewise, although sex-based rights and duties are at issue in virtually every case involving sex-based regulation of parenting, the Court conducts only the most cursory analysis of the allocation of parental responsibilities. This Note argues that the focus of current equal protection analysis on the nexus of biological sex differences and parental rights is both misled and misleading when used to examine regulatory regimes that bear on parenting and reproduction, such as [sections] 1409. It is misled because it fails to account for the numerous gender-inflected factors--other than "real" biological difference--that underlie the allocation of parental rights, such as marital status and sex-based distribution of parental responsibility; it is misleading because it obfuscates the principal harms caused by the sex-based allocation of parental rights.

An examination of the history of citizenship transmission with special sensitivity to official practices not reflected in the statutory history provided by Justice Ginsburg in Miller reveals that biological difference has not been the sole, or even primary, determinant of parental citizenship transmission in America. During the nineteenth and early twentieth centuries, the transmission of citizenship from parents to children was regulated by the principles of coverture--the common-law regime that determined the rights and responsibilities of parents to children according to marital status and parental sex. Under coverture, men had full legal rights and responsibilities regarding children born in marriage, while women had full legal rights and responsibilities regarding children born out of marriage.(14) In order to protect men from claims on property and status by illegitimate children, the law imposed no obligation to support or care for their nonmarital children.(15) Recognizing this legal arrangement, legislators, judges, and administrators limited citizenship transmission from citizen fathers to foreign-born nonmarital children.

The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by [sections] 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of [sections] 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding has been that legislatures may use sex-based classifications where the law responds to "real" or "inherent" differences between the sexes,(16) a fuller understanding of coverture demonstrates that such classifications may cause injury even where "real" sex differences abound. Thus, contrary to the opinions of some Justices and lower-court judges,(17) such laws deserve the utmost skepticism even where the government claims that these laws respond to biological differences between men and women. Indeed, it may be that heightened scrutiny is especially warranted in such circumstances.

Second, and even more broadly, the focus on legal parental responsibility that the history of citizenship transmission invites helps answer a more profound jurisprudential question: Can the Court's current equal protection analysis at any level of scrutiny--rational review or heightened scrutiny--adequately identify how sex-based classifications in parenting-related laws produce and perpetuate gender inequality? As demonstrated in both the lead plurality and dissenting opinions in Miller, both weak and strong applications of the equal protection test fail to reveal the coercive nature of the legal regime underlying [sections] 1409.(18) The common-law default rules that undergird [sections] 1409 allocate full legal responsibility for nonmarital children to mothers, while fathers' prerogatives and autonomy are given great deference.(19) When presented with an equal protection challenge to a parenting-related law, judges assume that unwed mothers have full legal responsibility for children,(20) Regardless of the level of scrutiny that [sections] 1409 receives, under the Court's current equal protection doctrine, the a priori assignment of legal maternal responsibility functions as a justification for the sex-based determination of parental rights. The current analysis lends itself to a kind of circularity: Because an unwed mother has superior legal responsibilities, she automatically receives superior parental rights. The default allocation of parental responsibility to unwed mothers, common to so many statutes,(21) escapes equal protection scrutiny. By failing to provide for a rigorous examination of the distribution of parental responsibility that undergirds [sections] 1409's allocation of parental rights, modern equal protection analysis obfuscates and even reinforces an inequitable allocation of parental responsibility. If equal protection doctrine is to move beyond its current stasis in the context of parenting and reproduction, it must facilitate critical examination of the sex-based regulation of parenting--even where "real" or "inherent" differences are evident. Moreover, it must treat the sex-based allocation of legal parental responsibilities that underlie the determination of parental rights with similar skepticism. Only then might it render an honest appraisal of the function of parental sex in the regulation of reproduction and parenting.(22)

In Part I, I briefly summarize the three opinions in Miller that directly address Lorelyn Miller's equal protection claim and situate them within the larger context of the Court's jurisprudence regarding parenting and reproduction. I pay special attention to Justice Stevens's defense of the default rule of legal maternal responsibility for nonmarital children, and to Justice Ginsburg's historical account of American citizenship law. In Part II, I revisit the history of [sections] 1409 that Justice Ginsburg provided in her Miller dissent, expanding on her historical analysis to account for the practices of the various...