Supreme Court Lets Anti-Dad Bias Stand in Flores-Villar Case

Fathers Day is fast approaching.  We know that because the jokes about what to – and what not to – get dad on His Day that come immediately before the day itself have been plentiful.  So be advised, among other things, don’t get Dad a tie for Fathers Day.

Someone should have told the U.S. Supreme Court.

Unfortunately, a tie is exactly what the Court gave one set of dads just a week before Fathers Day.  And is it ever ugly.  To be clear, the tie the court gave immigrant dads was a 4 – 4 tie.

In Ruben Flores-Villar vs. United States, the court voted 4 – 4 with Justice Kagan having recused herself.  In cases of a tie vote in the Supreme Court, the lower court ruling is affirmed which in Flores-Villar means a federal law treating alien mothers differently (and better) than alien fathers was upheld.

Perhaps worse, the justices hid inside that old sanctuary the Per Curiam ruling which means no one wrote an opinion, so we don’t know who voted which way or why.  For the edification of all, here’s the one-page ruling of the Court.

If you’ll recall, I wrote about the case originally here.  I won’t go into the tedious details of the law, but suffice it to say that Congress wanted to prevent children fathered by U.S. servicemen abroad from becoming U.S. citizens.  So it passed a law treating the offspring of fathers born outside the country differently from those of mothers similarly situated.  Here’s how Slate described what Ruben Flores-Villar, Sr. was required to do in order for Ruben, Jr. to be a U.S. citizen.

[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.

So, not only did the law impose a variety of prerequisites on Ruben, Sr. – prerequisites it does not impose on mothers in his position – in his case one of the requirements was actually impossible for him to perform.  In short, the statute frankly discriminates against fathers on the basis of sex.

Many organizations filed amici curiae briefs with the Court objecting to the overt sex discrimination in the law.  As I said in my original piece, much of what they said argued for simple fairness and common sense.  After all, what exactly is accomplished by treating mothers and fathers differently in those relatively few cases covered by the law?

I guess we’ll never know.  But whatever went on behind the closed doors of the Supreme Court, four justices apparently didn’t see anything wrong with that particular form of sex discrimination.  Needless to say, that doesn’t bode well for future challenges to the plethora of state laws that treat fathers differently and worse than they treat mothers.  Can we truly trust Elena Kagan to break future ties in favor of fathers?

Of course the U.S. Congress can rectify this law any time it wants to.  The offending law is their doing and they can undo it.  In fact, it would be interesting to hear the debate on any proposed change.

That’s in part because, as I reported earlier, various feminist organizations wrote or joined briefs opposing the law as an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment.  As I said, much of what they said made perfect sense – that parental roles have been evolving and the law perpetuates untrue stereotypes of mothers and fathers.

All of that was fine, but some wanted us to believe that the feminist organizaions (such as the National Women’s Law Center) filing briefs argued for treating fathers and mothers equally.  They trotted out those briefs as evidence for the proposition that feminist organizations really do believe in gender-equality.

To be blunt, that’s not what the briefs said.  In fact, their argument was that fathers and mothers should be treated differently, with fathers getting the short end of the stick.  They did that by arguing that,

[T]hat stereotype (of the uninvolved father) cannot justify treating fathers who have taken steps to establish a relationship with their children differently from mothers.

In short, theirs is the old, outworn and misandric one we find throughout family law – that mothers rights are established by their biological relationship to their children, but fathers must “have taken certain steps” to have parental rights.  For them, biology is not enough; dads must do more.

Exactly what they must do is often an open question to be resolved after the fact by courts, leaving dads in the dark about what is sufficient to obtain for them that most humble of desires, the right to care for their children.

A perfect example of that is the Christian Diaz case on which I’ve reported before.  He’s the 17-year-old from Bakersfield, California who fathered a child with is girlfriend.  Against his express wishes, she placed the child for adoption, lying to him about what she was doing.  Diaz prepared a room for the child, bought baby furniture, toys and clothing and, in spite of the mother’s best efforts, managed to find out which hospital she’d gone to to have the baby.  When he arrived there to see his son, she told the hospital authorities he wasn’t the father and he was “escorted” from the premises.

When he went to court to contest the adoption, he learned that what he had done was insufficient to establish his parental rights and thus obtain custody of his child.  What would have been sufficient?  The court didn’t say, and so how was he to have known?

The point being that that is the type of thing that would pass muster with NWLC.  Fathers must behave in ways that some court at some later date finds acceptable in order to gain rights to their children; mothers need not.

The solution to all this is simple.  Biological parents – both men and women – should have rights to and responsibilities toward the children they bring into the world, solely by virtue of their biology .  The only way either rights or responsibilities should be diminished is through proof of unfitness.

Unlike family law everywhere I know about, that approach is fair and unbiased.  More importantly, it helps to connect children with their biological parents whom much social science shows us to be their best caregivers.

Now that would be a great Fathers Day gift.  Better than a tie of any stripe.

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