The Constitutionalization of Fatherhood

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: individual criticisms of each line of cases have not prompted reconsideration of the cases purely on their own terms. This paper identifies a new approach, however, 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.

Keywords: family law, constitutional law, feminist legal theory, masculinities