What Is Parenthood?: Contemporary Debates about the Family

11. Gender and Parentage: Family Law’s Equality Project in Our Empirical Age

237 CHAPTER ELEVEN Gender and Parentage Family Law’s Equality Project in Our Empirical Age Susan Frelich Appleton This chapter joins the conversation about the place of gender in the law of parentage, an issue that looms large in today’s “culture war,”1 including the continuing battle in the United States over same-sex marriage. Here, in addressing not only the question, What is parenthood?, but also Who is a parent?,2 I make the case for a legal regime based on the diversity model. This approach, which embraces gender equality, supports recognition of a diverse range of parent-child relationships, without regard to sex or gender. This approach contrasts with what this book calls the integrative model, in which parentage integrates biological and other parental functions and locates them within heterodyadic marriage. Because the integrative model relies partly on genetics, assumes gendered family performances, and privileges traditional marriage, its understanding of parenthood requires just one man and just one woman. In advocating for a law of parentage that respects diversity, this chapter makes two contributions. First, it challenges the constitutional validity of laws that would impose an integrative model by showing how this model and its underlying normative premises rest on gender stereotypes that equality jurisprudence and contemporary family law have repudiated. Second, it questions recent arguments, both for and against laws based on the integrative model, that rely on empirical investigations of the effects of various familial arrangements on children. Even if empirical findings purport to show that the normative one-mother/one-father configuration serves most children well, such data do not justify enshrining this arrangement in a law applicable to all children. Family Law’s Equality Project Gender’s Place in Family Law Family law long stood out as a site marked by inequalities, including differences based on economic class,3 race,4 and marital status.5 Gender, 238 Susan Frelich Appleton however, accounted for the most pervasive and salient disparity of treatment , entrenched by the “vehicle” of marriage.6 The entire construction of family law as a field delineated a diminished “private” or domestic sphere belonging to women in opposition to the exalted “public” sphere of men.7 In the 1970s, family law embarked on what I call an “equality project,” designed to correct the manifold disparities of the past. Participants included scholars, activists, law reformers, and, ultimately, judges and legislators . Although this project proceeded on various fronts, for example, undoing most of the discrimination suffered by children born to unmarried parents8 and federalizing many disparate standards among the states,9 gender emerges as an especially conspicuous focus, challenging the field’s fundamental assumptions. This aspect of the equality project achieved enormous success after the U.S. Supreme Court declared its allegiance, condemning traditional gender-based roles and stereotypes in its antidiscrimination jurisprudence.10 Because much traditional family law rested on such roles and stereotypes , the Court’s decisions prompted reforms in the states, where family law is ordinarily made. In the remarkable transformation that followed, family law went from a regime that systematically and explicitly classified by gender and subordinated women, especially married women, to a body of rules that, with few exceptions, insists that gender must be formally ignored.11 Caban v. Mohammed illustrates the doctrinal analysis producing such changes.12 In seeking to have her husband adopt the children she bore during an earlier relationship, Maria Mohammed relied on a New York statute that did not require the consent of unmarried birth fathers, despite requiring such consent from married birth fathers and birth mothers, regardless of marital status. Abdiel Caban, the birth father of Mohammed’s children , successfully challenged the statute on equal protection grounds. The Court determined that he and Mohammed were “similarly situated”13 in their parental relationships because both had lived with and cared for the children. The Court concluded that the statute embodied an “overbroad generalization,” reflecting impermissible gender stereotypes.14 State responses moved beyond such cases. For example, the Supreme Court never directly confronted the place of gender in child custody adjudication or the traditional “tender-years” doctrine, which prefers maternal, over paternal, custody of young children.15 Yet signals from its cases about parentage, adoption consent, and marital roles were sufficiently clear that state legislatures, state courts, and law reform initiatives excluded gender 239 Gender and Parentage as a factor for deciding child custody.16 Under contemporary statutes, neither a parent’s nor...