As much of the Indian law community holds its breath waiting for the Supreme Court to decide the so-called Baby Veronica case, I’ve been thinking about an issue that’s not raised at all before the Supreme Court and that doesn’t seem to have been raised below (although the lower court materials in South Carolina state court remain confidential), namely, shouldn’t a law that allows a newborn to be adopted without the unmarried father’s consent be interpreted as a violation of equal protection?
For those of you unfamiliar with the case, here’s a quick recap on its facts. Bio mom and dad date on and off for years, become engaged, and then the mother becomes pregnant and breaks off the engagement. The father is a member of the Cherokee Nation. Through a text message shortly after the break-up, the father agrees to “relinquish” his rights to the mother. The mother then secretly decides to put the child up for adoption, and through a Christian adoption agency, picks the adoptive parents. She has the child without notifying the father (indeed instructing the hospital to keep her presence there a secret). The adoptive parents reside in South Carolina, and South Carolina law does not grant unmarried fathers in these circumstances a say in the adoption unless they have lived with the child or his or her mother for six months preceding the adoption or they have provided “a reasonable sum” for support or expenses. S.C. Code 1976 § 63-9-310. However, the Indian Child Welfare Act (“ICWA”), which applies here because the child is the biological child of a tribal member and is herself eligible for tribal membership, 25 U.S.C. § 1903(4), recognizes the rights of unmarried fathers as long as their paternity has been acknowledged or established. 25 U.S.C. § 1903(9). Pursuant to ICWA, mother’s attorney attempts to inquire into the father’s membership status through the Cherokee Nation, but the father’s name is spelled wrong and his birth date is listed incorrectly, so the Nation is unable to verify that he is a member. The father is finally served with adoption papers just before he is to be deployed, and at that point begins to contest the proceedings, as does the Cherokee Nation. He eventually ends up with custody of his daughter under rulings of the South Carolina courts. The case is now before the Supreme Court, and the adoptive parents are painting ICWA as racist and claiming that the ruling will bar any interracial adoptions of Native children.
There are strong responses to these arguments. For one, Indian status, especially when based on tribal membership, has long been considered political rather than racial. Additionally, an important thing to understand about ICWA is that it was enacted to remedy decades and decades of assimilationist (and arguably genocidal) policy, which encouraged forcible removal of Indian children from their parents and cultures allegedly for their own betterment. The legacy of that policy continues even today--Indian children continue to be removed from their families in many states at much higher rates than other children.
But what has been bothering me most about the case lately is the South Carolina law. Given that young men cannot be denied the privilege of drinking low-alcohol beer based on their gender, Craig v. Boren, 429 U.S. 190 (1976), why should they be so easily denied their parental rights based on their gender? And yet the Supreme Court affirmed a similarly harsh rule in a different context fairly recently. In Nguyen v. INS, 533 U.S. 53 (2001), the Court affirmed a law that made it much more difficult for a non-marital child born outside the U.S. to claim citizenship through an American father than through an American mother. In affirming the law and upholding the adult child’s deportation, the Court noted that its decision was based “on the significant difference” between each parent’s relationship to the child at the time of birth and noted that male and female biological parents are not “similarly situated to each other with regard to the proof of biological parenthood.” While the latter statement is undoubtedly true, I still don’t see how it justifies placing the types of formal, affirmative obligations on fathers that the Court has allowed as a pre-condition to their taking advantage of parental rights, particularly in cases where the father’s parentage is uncontested. For one, having a child is something that can just happen to a person. I can’t imagine an ordinary unmarried father’s first thought would be to go out and file a form claiming paternity, as some states require. See, e.g., Lehr v. Robertson, 463 U.S. 248 (1983) (upholding New York law that gave putative fathers the right to notice of adoption only if they mailed a postcard putative father registry). And, when the adoption occurs just after a child is born, as in the Baby Veronica case, how the father-child relationship will develop remains unknown, particularly in this case, where the birth was sandwiched between an acrimonious break-up and a military deployment. To say, as South Carolina does, that unless very specific requirements are met within a short timeframe, the father lacks any rights, seems patently unfair.
Finally, although the issue isn’t raised here, the case seems to me to be another illustration of the impoverishment of formalistic equal protection analysis. In Geduldig v. Aiello, we see the Court basically saying pregnant women are not like men, so they aren’t entitled to the benefits in the workplace that men have. In the unmarried father cases, we sometimes see the Court saying fathers aren’t like mothers, so they aren’t entitled to the same rights. But see Caban v. Mohammed, 441 U.S. 380 (1979). In work, the norm is male, but in unmarried father cases, the norm tends to be female. The problem is that individuals should be entitled to basic equal protection rights even when biology—or the social construction of gender or race—prevents them from being similar to the favored group in every significant respect.