[Under American laws] women have the right to children but men have to fight for children. – Dr. Warren Farrell
On any given day, tens of thousands of men are fighting in family courts to remain in their children’s lives. They argue their cases before biased judges, who apply biased laws, in a system built around that idea that mothers are the more important parent, and that fathers’ proper familial role is limited to mailing a child-support check. Many men lack the financial resources to even fight, as legal expenses can easily run into the thousands before even a single court date.
It is against this bleak landscape that the United States Supreme Court issued in June 2017 a promising new father’s rights case, Sessions v. Morales-Santana. In doing so, the court has handed men whose wallets have the wherewithal for a fight the potential to wipe some sexist laws off the books—not only benefiting themselves, but also leveling the playing field for the future.
Anyone not living under a rock has heard the feminist dogma that, “Sexism against men is an oxymoron.” This idea is taught in universities and parroted by the media, but it is not the truth, and not the law, and anybody who believes it is a different kind of moron.
The Morales-Santana case strikes down a legal preference received by mothers over fathers, finding that it violated the fathers’ rights to equal protection under the US Constitution. The case is one of only a few Supreme Court cases that have decided family-law issues on the basis of fundamental rights, making it especially important because the constitutional principles it sets out will now apply to all laws, both state and federal, everywhere in the country. The Court seems to have used this case to make a deliberate statement about father’s rights. The court had the option of deciding it on a very narrow basis of “justiciability,” meaning that it would reject the case because its unique facts gave no way for the court to craft a legal remedy (more on that below). In fact, Justices Thomas and Alito argued in a concurring opinion that the court should have done just that. But most of the justices disagreed, leading the court to issue a much more sweeping opinion, written by liberal icon Justice Ruth Bader Ginsburg.
The decision stands for the principle that it is unconstitutional for the law to assume either that: (1) unwed fathers are less qualified, entitled, or willing than mothers to take responsibility for their children, or (2) the mother’s relationship with the child is more important than the father’s. Unfortunately, the court does not synthesize these ideas into precisely such clear and sweeping terms, meaning that it would take some argument and analysis to bring them across in litigation. (Although, the case happened to deal with unmarried parents, its ideas should apply with at least as much force if the parents are married.)
The crux of the Morales-Santana case lies in striking down a law that assumes unwed mothers influence their children more than unwed fathers. The specific issue involved a peculiar legal area of whether or not a child born outside the United States to unwed parents, one of whom is a US citizen, is themselves a US citizen from birth. A federal statute from 1940 governed the question, and the court articulated the concept behind the statute as being that the child would receive citizenship if they were adequately “American in character,” based on how American (or not) the people influencing them were. The Americanness of these influencers (specifically the child’s parents) was measured by (1) whether the parent was a US citizen, and (2) how many years that parent had spent in the US.
Combining (a) this goal of measuring the child’s Americanness with (b) the assumption that mothers have more influence than fathers, Congress enacted a rule allowing the child to be a US citizen if (1) the father was a US citizen and the father had lived in the US for at least ten years, at least five of which occurred after the father reach age 14, or (2) the mother was the US citizen and the mother had lived in the US for at least one year, at any time in her life. In other words, the father needs to be much more “American in character” (ten years in the US), than the mother (one year)—based on assuming the father is less important to the child.
The court explained:
Th[e traditional] unwed-mother-as-natural-guardian notion renders [the law’s] gender-based residency rules understandable. Fearing that a foreign-born child could turn out ‘more alien than American in character’ the [law’s writers] believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture.
The court had thus set up the pins: finding that the law assumed that children born out of wedlock are influenced more by their mothers than by their fathers. And proceeded to knock them down: invalidating the law as an unconstitutional violation of fathers’ equal-protection rights.
“[N]o important governmental interest is served,” the court wrote, “by laws grounded . . . in the obsolescing view that unwed fathers are invariably less qualified and entitled than mothers to take responsibility for nonmarital children.” More generally, when a law’s “objective is to exclude or ‘protect’ members of one gender in reliance on fixed notions concerning that gender’s roles and abilities, the objective itself is illegitimate.”
Even if the underlying sex-discriminatory assumption is statistically true, it still violates equal protection. The court wrote:
Overbroad generalizations . . . have a constraining impact, descriptive though they may be of the way many people still order their lives. Even if stereotypes frozen into legislation have ‘statistical support,’ our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.
The court noted that it had previously warned of the dangerous self-fulfilling nature of stereotyping women, and went the further step of acknowledging the same risk as to men:
Laws according or denying benefits in reliance on stereotypes about women’s domestic roles, this Court has [previously] observed may create a self-fulfilling cycle of discrimination that forces women to continue to assume the role as primary family caregiver. Correspondingly, such laws may disserve men who exercise responsibility for raising their children.
The court also included language from which to argue that the law must regard the child-father relationship as on par with child-mother. The court noted that “laws treating fathers and mothers differently may not be constitutionally applied where the mother and father are in fact similarly situated with regard to their relationship with the child.” Wonderful, but what does it mean for the father and mother to be “similarly situated”? The court looks to the father’s admission of paternity and formation of a relationship with the child. The court distinguished its prior 1983 decision Lehr v. Robertson, stating that in Leher “[t]he similarly situated condition was not satisfied . . . [because] the father in that case had never established any custodial, personal, or financial relationship with the child.” The court then contrasted the current facts, writing that “[h]ere, there is no dispute that [the father] formally accepted parental responsibility for his son during [his son’s] childhood.”
In a cruel twist for Mr. Morales-Santana himself, the court ultimately concluded that even though he was right that the mother-favoring law was unconstitutional, he was not entitled to any relief. After rejecting the mother/father difference, the court had to decide which single rule should be applied to both. Based on a review of the overall statute (which includes other permutations, such as married parents, etc.), it found the unwed mother rule to have been intended as a narrow exception, meaning that it was invalidated, and the father rule should apply to everyone. (This lack of remedy is what led Justices Thomas and Alito to argue against the court even considering the equal-protection argument.)
This new case opens up numerous opportunities for fathers to fight biased laws, but such challenges will not be easy or automatic. They will require dedicated fathers, armed with patience and resources. But in a world where businesses and institutions view anti-male discrimination as not just acceptable, but laudable; where they engage in it openly and with impunity; and where the claim that sexism against men is a definitional impossibility has become de rigueur among the supposedly “woke”; this recent decision provides a welcome reminder of what equality is really about, written by a liberal hero, and delivered by the highest court in the land.
 A later version of the statute reduced the residency requirement from ten years to five.
 Guessing at the child’s Americanness may seem a bizarre way of viewing this parental-years-of-residency test. A more obvious tie-in might be that Congress was guessing at how likely the parent would be to return to the US with the child. Nonetheless, Americanness is what Congress discussed in enacting the statute, and is what the court accepted as the law’s purpose.
[*] Style note: quotations from the case are simplified to remove internal quotation marks, ellipses, and citations, and to treat footnotes as occurring inline with the text.