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.
การปฏิวตั ใิ นเรือ
่ งของความเท่าเทียมกันในศตวรรษทีย่ ส
ี่ บ
ิ ได้กาหนดถึงหลักการข
องความเป็ นกลางทางเพศในกฎหมายการแต่งงานและการหย่าร้างและช่วยลดคว
ามไร้ความสามารถของกฎหมายอย่างเอาจริงเอาจริงทีก ่ าหนดโดยประเพณีสาหรั
บเด็กทีไ่ ม่ได้สมรส

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.
The twentieth-century constitutional equality revolution
transformed the laws of marriage, divorce, and parenthood. As a
matter of formal law, though not social reality, husbands and
wives turned into spouses with identical rights and duties;
divorcing mothers and fathers became parents with sex-neutral
obligations of care and support. Formal equality under the law
eluded nonmarital parents, however. Marital status remained a
legitimate basis of legal differentiation. The legal primacy of
marriage endured, even as rates of nonmarital cohabitation and
childrearing soared.

Today, sex neutrality in the law of parenthood depends upon

marital status. Mothers and fathers generally enjoy formally equal
rights to the custody, care, and control of their marital children. In
contrast, a nonmarital father does not possess the same parental
rights—or responsibilities—as his female counterpart. And although
nonmarital fathers won unprecedented legal rights and
recognition as parents, they never achieved parity with married
and divorced fathers.