About a week ago, the United States Supreme Court heard oral arguments in a case that, frankly, has a pretty limited scope. Despite that, I thought I’d mention it, less for what the case is about or what its potential outcome might portend, and more for who’s on what side.
The case is Flores-Villar vs. United States. It’s a citizenship case in which a son, Ruben Flores-Villar, Jr. is contesting the constitutionality of a federal law. That law says that (stay with me here) the child of an unmarried American woman whose father is a non-U.S. citizen and who is born in a foreign country receives American citizenship if the mother has lived inside the country for one year at any time in her life.
On the other hand, an unmarried American father in exactly the same situation (i.e. he fathered a child in a foreign country with a non-American woman) has to satisfy several conditions in order for his child to receive citizenship. This article explains what a father must do (Slate, 11/9/10).
[T]he law holds that Ruben Sr. cannot confer citizenship unless he provides proof of parenthood, legally acknowledges Ruben Jr. before the child turns 18, and pledges to support him. Finally–and crucially in this case–Ruben Sr. must show that he himself lived in America for at least five years, after he turned 14 and before Ruben Jr.’s birth. Ruben Sr. satisfied all the legal requirements save the last one, which was physically impossible: He was only 16 when Ruben Jr. was born.
In short, the statute treats unmarried American mothers and unmarried American fathers differently. Well, what it actually does is treat their children differently, but presumably, both mothers and fathers have some legal interest in the citizenship of their children.
As I said, that probably doesn’t affect a huge number of parents or children. But, as the article points out, the law was originally passed to prevent children fathered by U.S. servicemen in Vietnam from claiming U.S. citizenship. How many of those children there were, I don’t know. My guess is that the number of children fathered by U.S. military personnel in Iraq and Afghanistan is fairly small, but that’s really nothing more than a hunch.
Whatever the case, the law clearly should be changed so that mothers and fathers are treated equally. There’s no legitimate reason I can think of to justify discriminating against fathers and their children in the way the law does.
What’s interesting to me about the case, though is the fact that at least one feminist organization, the National Women’s Law Center has filed a brief amici curiae (friends of the court) urging the overturning of the law. It’s brief is on behalf of the NWLC and some 22 other organizations of various stripes. Most of them are feminist organizations.
More to the point, they oppose the statute specifically because it treats mothers and fathers differently and, they say, that violates the Equal Protection Clause of the Fourteenth Amendment. Here’s the brief (ABANet, 9/10).
I won’t delve deeply into the fine points the brief makes, but suffice it to say that it is mostly a model of fairness and common sense. For example, it criticizes the gender-based distinctions drawn by the statute as “outdated stereotypes of fathers and mothers.” It goes on to say that gender roles have been changing and, even if the anti-father discrimination in the statute could ever have been justified based on traditional gender roles, it cannot now be.
It squarely goes to bat for unmarried fathers, their rights to their children and their relationships with them.
The government”s decision to impose a greater burden on unmarried fathers than unmarried mothers perpetuates the stereotype that unmarried fathers always have less meaningful relationships with their children than unmarried mothers. If the stereotype that unmarried fathers are always absent and uninvolved were ever true, it is not true today. And that stereotype cannot justify treating fathers who have taken steps to establish a relationship with their children differently from mothers.
Because the fathers in Flores-Villar vs. United States have in fact taken steps to form legal ties to their children, the brief argues that the law’s distinction between them and unmarried mothers violates the Equal Protection Clause.
In short, the facts of the case urge the friends of the court toward a certain argument – that unmarried fathers’ rights may be constitutionally conditioned on their doing affirmative acts of parenting. Many state laws require exactly that and I object to that. I would argue that all biological fathers should have parental rights by virtue of their paternity. That’s where mothers’ rights come from and so should fathers’.
The fact that many states predicate the rights of unmarried fathers on their taking those affirmative parental actions is the main way in which mothers are able to deny fathers their parental rights. As we’ve seen countless times, the simple act of concealing a pregnancy or convincing the dad that another man is actually the father has served to deprive a father of his child.
So on one hand, I can’t agree with the NWLC brief, but on the other, it has a saving grace. If the court holds that predicating unmarried fathers’ rights on their forming a relationship with their children is constitutionally acceptable, then it’s only a short step to requiring that fathers be given the opportunity to do so. And that means that they have a right to know about and freely associate with their children. That is, mothers may not prohibit either and any law that allows them to must be unconstitutional.
And that’s what I’ve been arguing for all along.
But the jaw-dropping fact is that there are a number of feminist organizations that are going to bat for unwed fathers in this case.
That of course raises the question “where’ve you been all this time?” After all, there have been countless cases in countless courts, both state and federal in which they could have intervened as amici curiae as they did here. I can’t begin to count the number of cases in which the argument for treating mothers and fathers could have used the weight these organizations carry.
I’ve said innumerable times that mothers will never gain equality in the workplace until they allow fathers equality in the nursery. But up to now, fathers’ rights organizations of all sorts have gotten nothing but (a) ignored and (b) a litany of excuses from feminist groups that, by any stretch of the imagination should have been on our side from the beginning. The anti-father stance of these groups has never made sense. I’m glad to see they finally “get it.”
I’m also glad to have their own wise and sensible words to remind them and future anti-dad advocates that justice and the constitution demand that fathers and mothers be treated equally under the law.