Can Fathers Sue Courts Under ‘Disparate Impact’ Theory?

July 1, 2015
By Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Will last week’s ruling by the U.S. Supreme Court permitting same-sex couples to marry have any impact on the movement for equal parenting following divorce? It’s a question many people asked immediately after the opinion was announced.

My guess is that it will have no direct impact. The right of same-sex couples to marry has little legal relation to the importance to children of keeping both parents in their lives when the parents split up. The value of both parents is addressed to the “best interests of the child” standard that’s already found in Supreme Court precedent. As I see it, constitutional law is already where it needs to be as regards parental rights. What needs to change is factual – the awareness of state legislatures that children do best with both parents involved in their lives, an arrangement family courts need to stop obstructing.

But another, far less heralded opinion was issued by the Court holding, as it has in previous cases, that state action that creates a disparate impact on the basis of a suspect category like race, creates a cause of action under federal civil rights laws (Wall Street Journal, 6/25/15). That is, a plaintiff seeking to sue need not produce evidence of an intention on the part of the defendant to discriminate. Here’s how this article described the case in question:

The case originated in Dallas, where an advocacy group called the Inclusive Communities Project claimed the Texas housing agency discriminated by distributing federal tax-credit subsidies almost entirely to buildings going up in poor, black neighborhoods, thereby solidifying residential segregation.

A lawsuit predicated on fathers’ rights to involvement with their children post-divorce would need to show that fathers are a class that’s been discriminated against in the past and that a state’s child custody statutes cause a disparate impact against fathers, thereby denying them their parental rights. That wouldn’t be easy, nor would it be impossible.

The usual excuse offered for excluding fathers from their children’s lives is that they haven’t played the same hands-on parental role that mothers do. But the fact that fathers do the lion’s share of supporting their families, allowing mothers to care for the kids is scarcely a reason to separate them from their children. Plus, that “resource gathering” role can be shown to be the male role in virtually all human (as well as primate) societies. So clearly, a law that presumes that a child’s primary caregiver must be its custodial parent post-divorce is a law aimed at separating fathers from children. It’s extremely likely to primarily serve the interests of mothers and sideline those of fathers.

And of course that’s precisely what family laws do. They produce a disparate impact that especially harms a class of parents — fathers. Moreover, that harm has been going on ever since the Tender Years Doctrine took effect in the late 19th century, so fathers should qualify as a group that’s traditionally been discriminated against. That in turn means challenged state laws must undergo “strict scrutiny” by the judiciary.

Will fathers take up this banner? It’s hard to know, but it’s another arrow in the quiver.