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June 20, 2013


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"The problem is that individuals should be entitled to basic equal protection rights even when biology—or the social construction of gender—prevents them from being similar to the favored group in every significant respect."

A good start to treating folks as individuals would be to abolish gummint recognition of marriage, which unfairly discriminates against singles in general and against men in particular in over 1000 pieces of pertinent legislation.

But treating folks as individuals would open a whole new can of worms: we'd expect to see an atheist on the Supreme Court, or maybe even a Protestant! Men could choose abortion in the best interests of the child! A woman might become President or win at chess, or even win a second Nobel in Economic Science!

Jennifer Hendricks

(1) "The problem is that individuals should be entitled to basic equal protection rights even when biology—or the social construction of gender—prevents them from being similar to the favored group in every significant respect."

Agreed, but that has never been the law under the Equal Protection Clause when women are the ones disadvantaged by biology or by social constructions of gender. The existing cases have already provided "terms the male can fulfill" to get parental rights. Why is it so important that he be able to do so over the strong objections of the mother? There are several policy reasons behind the requirements for having constitutionally recognized parental rights, but in my mind, the most important are pluralism and the preservation of existing close relationships between individuals, not the inchoate sense of entitlement held by a genetic parent with no other connections with the child.

(2) Caution is called for in cases where the father says he relinquishes his parental rights to the mother but then wants to block her from placing the child for adoption. He is in effect saying, "I don't especially want to be the father, but I want to maker her be the mother." The decision about adoption is one of the things you relinquish when you give up parental rights. (I don't necessarily think this concern is conclusive in this case, since the facts about his relinquishment are murkier than in some others and he seems subsequently to have taken on a full parental role.)

(3) None of that, of course, goes to the question of jurisdiction under ICWA. My view is that jurisdiction lies with the Tribe. I would want the tribal court to take (1) and (2) into account, but they are probably outweighed in this case by the same concerns that motivated ICWA itself.

Ann Tweedy

I agree that women are disadvantaged by the Court's formalistic equal protection (and Title VII/PDA) analysis in the vast majority of cases, and I find it just as troubling--or maybe more troubling--in those cases.

Also, although I agree that unmarried fathers can fulfill the terms of the various state requirements, I find many of them unrealistic and therefore unfair. For example, I don't think a non-lawyer would ever think of registering in a putative father registry. Maybe I'm wrong--I definitely haven't practiced in the area. But I can imagine that such a requirement could have a huge disparate impact based on class and possibly race as well. And I'm troubled that it's legally acceptable to impose somewhat arbitrary requirements when such a huge right is at stake. I think parental rights are important enough to require a hearing where the parent can present whatever case he or she can on the issues that go to parenthood--which seem to me to be care, mutual attachment, and support.

On your second point, I agree that the text message on relinquishing rights was troubling, but I keep coming back to the fact that it was a text message sent shortly after a break-up. I know we all agree to contract terms and conditions now by checking a box on a website, but I just can't accept that a personal text message would be seen as a legally-binding waiver of parental rights (though I can see it being one piece of evidence in a hearing on parental rights). Dustin Brown's statement doesn't seem that different to me than other things I've heard of (and witnessed) people saying during break ups and divorces. Also, I have to think "relinquish rights" has meaning to lawyers that it may not have to an ordinary person who doesn't have legal counsel. I do agree that the father doesn't appear to have been behaving admirably at that point in the relationship.


Ann, thanks for this. Specifically, for not translating a disadvantage that men can face in the legal system into “misogyny.”

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