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69 Case W. Res. L. Rev. 541 (2018-2019)
The Constitutionalization of Fatherhood

handle is hein.journals/cwrlrv69 and id is 585 raw text is: CASE WESTERN RESERVE LAW REVIEW - VOLUME 69 - ISSUE 3 - 2019 THE CONSTITUTIONALIZATION OF FATHERHOOD Dara E. Purvist ABSTRACT Beginnig 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 hicarnations, the doctrine created in those family law cases conthiues 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: separate criticisms of each lhie of cases have not prompted reconsideration of the cases reforming family law, immigration law, or inheritance law individually. This Article identifies a new approach 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. t Associate Professor, Penn State Law; Yale Law School, J.D.; University of Cambridge, M.Phil.; University of Southern California, B.A. I am grateful for thoughtful comments from Albertina Antognini, Jill Hasday, Michael J. Higdon, Clare Huntington, Serena Mayeri, Melissa Murray, Douglas NeJaime, James Puckett, Stephen F. Ross, and Sarah Swan. Thanks also to my excellent research assistant Melissa Blanco. 541

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