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Yale Law School




The history of coverture and the transmission of American citizenship brings an elementary point into focus: The allocation of parental rights is always correlated with the allocation of parental responsibility. This basic legal truism, and its numerous implications for citizenship law, suggests that the principal gender injustice caused by § 1409 is not its truncation of fathers' rights, but its creation and perpetuation of a legal regime in which mothers assume full responsibility for foreign-born nonmarital children. Once we recognize this gendered operation of § 1409, broader failures of equal protection analysis come into relief. First, while the jurisprudential understanding has been that legislatures may use sex-based classifications where the law responds to "real" or "inherent" differences between the sexes,16 a fuller understanding of coverture demonstrates that such classifications may cause injury even where "real" sex differences abound. Thus, contrary to the opinions of some Justices and lower-court judges," such laws deserve the utmost skepticism even where the government claims that these laws respond to biological differences between men and women. Indeed, it may be that heightened scrutiny is especially warranted in such circumstances.

Second, and even more broadly, the focus on legal parental responsibility that the history of citizenship transmission invites helps answer a more profound jurisprudential question: Can the Court's current equal protection analysis at any level of scrutiny-rational review or heightened scrutiny-adequately identify how sex-based classifications in parenting-related laws produce and perpetuate gender inequality? As demonstrated in both the lead plurality and dissenting opinions in Miller, both weak and strong applications of the equal protection test fail to reveal the coercive nature of the legal regime underlying § 1409.18 The common-law default rules that undergird § 1409 allocate full legal responsibility for nonmarital children to mothers, while fathers' prerogatives and autonomy are given great deference.19 When presented with an equal protection challenge to a parenting-related law, judges assume that unwed mothers have full legal responsibility for children.20 Regardless of the level of scrutiny that § 1409 receives, under the Court's current equal protection doctrine, the a priori assignment of legal maternal responsibility functions as a justification for the sex-based determination of parental rights. The current analysis lends itself to a kind of circularity: Because an unwed mother has superior legal responsibilities, she automatically receives superior parental rights. The default allocation of parental responsibility to unwed mothers, common to so many statutes," escapes equal protection scrutiny. By failing to provide for a rigorous examination of the distribution of parental responsibility that undergirds § 1409's allocation of parental rights, modern equal protection analysis obfuscates and even reinforces an inequitable allocation of parental responsibility. If equal protection doctrine is to move beyond its current stasis in the context of parenting and reproduction, it must facilitate critical examination of the sex-based regulation of parenting-even where "real" or "inherent" differences are evident. Moreover, it must treat the sex-based allocation of legal parental responsibilities that underlie the determination of parental rights with similar skepticism. Only then might it render an honest appraisal of the function of parental sex in the regulation of reproduction and parenting.22

In Part I, I briefly summarize the three opinions in Miller that directly address Lorelyn Miller's equal protection claim and situate them within the larger context of the Court's jurisprudence regarding parenting and reproduction. I pay special attention to Justice Stevens's defense of the default rule of legal maternal responsibility for nonmarital children, and to Justice Ginsburg's historical account of American citizenship law. In Part II, I revisit the history of § 1409 that Justice Ginsburg provided in her Miller dissent, expanding on her historical analysis to account for the practices of the various government institutions involved in citizenship transmission. I detail the system of coverture that undergirded the statutes and practices of citizenship transmission throughout the nineteenth and early twentieth centuries. In Part III, I explore the implications of this history-and the sex-based allocation of legal parental responsibility that it reveals-both for § 1409 and for the application of equal protection analysis to the legal regulation of parenting and reproduction. I conclude in Part IV with a modest proposal for how courts could expand their analyses of parenting-related laws to provide fuller accounts of the inequity of the current default allocation of parental responsibility out of wedlock.

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