Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers

Abstract

This article critiques the Supreme 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. What should be discarded are outdated stereotypes about men as incapable, incompetent caregivers, as well as patriarchal norms of status and ownership based in genetic and economic fatherhood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. Instead, 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. 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.