125 Yale L. J. 2292 (2015-2016)
Foundling Fathers: (Non-) Marriage and Parental Rights in the Age of Equality

handle is hein.journals/ylr125 and id is 2358 raw text is: 














SERENA MAYERI


Foundling Fathers: (Non-)Marriage and Parental

Rights in the Age of Equality


ABSTRACT. The twentieth-century equality revolution   established the principle of sex neutrality
in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed
upon  nonmarital children. Formal equality under the law eluded nonmarital parents, however.
Although unwed  fathers won unprecedented legal rights and recognition in a series of Supreme Court
cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with
married and divorced fathers. This Article excavates nonmarital fathers' quest for equal rights, until
now  a mere footnote in the history of constitutional equality law.
     Unmarried fathers lacked a social movement of their own, but various groups and interests
fought for their own causes on the battleground of nonmarital parenthood. Nonmarital fathers' claims
posed a particular dilemma for feminists, who promoted gender-egalitarian parenting within marriage
but struggled over the implications of unmarried fathers' rights for women's autonomy and for
substantive sex equality. The Justices' deliberations, in contrast, focused on the rights of men and on
ensuring the smooth functioning of adoption procedures. The Court largely avoided the feminist
dilemma,  instead framing cases as disputes between  husbands  and  unwed   fathers. Denying
nonmarital fathers' request to be treated as de facto divorced fathers, the Court reaffirmed the legal
supremacy of marital families.
     The Court's failure to engage difficult questions about substantive sex equality reverberated
beyond  the parental rights cases to leave its mark on the twenty-first century jurisprudence of
citizenship. As nonmarital parenthood becomes the American norm, recovering its constitutional
history illuminates how and why marital status still delimits the boundaries of equality law.

AUTHOR. Professor of Law and History, University   of Pennsylvania Law School. I am grateful to
Regina Austin, Kristin Collins, Deborah Dinner, Katie Eyer, Smita Ghosh, Sarah Barringer Gordon,
Martin Guggenheim,  Clare Huntington, Genevieve Lakier, Sophia Z. Lee, Robin Lenhardt, Kevin
Noble Maillard, Solangel Maldonado, Terry Maroney, Mary X. Mitchell, Melissa Murray, Douglas
NeJaime, Allison Kirkpatrick Powers, Dorothy Roberts, Daniel Sharfstein, Jed Shugerman, Reva
Siegel, Justin Simard, Edward Stein, Sarah Swan, Allison Tait, Mark Tushnet, and Adnan Zulfiqar for
generous comments and conversations about earlier versions of this project. Participants in workshops
and  conferences at Fordham  University, the University of Pennsylvania, Vanderbilt, Queens
University, New York Area  Family Law  Scholars, and annual meetings of the Law and  Society
Association and the American Society for Legal History also provided valuable feedback. Smita Ghosh
contributed superb research assistance. For help gathering sources, thanks are due to Alvin Dong,
Edwin Greenlee, and the staff of the Biddle Law Library at the University of Pennsylvania Law School;
John Jacob of the Powell Archives at Washington & Lee University School of Law; Patrick Kerwin of
the Library of Congress; Meagan Buckley; Zachary Frazier; Emily Prifogle; Sennett Rockers; and
Thomas  Wheeler. Finally, my thanks to Lucas Croslow and the editors of the Yale Law journal for
thoughtful editorial assistance.


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