Antognini: "Unwed Parents: The Limits of the Constitution"

Albertina Antognini (Arizona) recently posted to SSRN her article Unwed Parents: The Limits of the Constitution, 35 Journal of the American Academy of Matrimonial Lawyers (2023).  Here is the abstract:

As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. The Supreme Court has interpreted the Constitution’s applicability to nonmarriage in a number of cases, including in a series addressing unwed fathers; this essay focuses on a close reading of the most recent, Sessions v. Morales-Santana, decided in 2017. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children as a violation of equal protection. This essay argues that Morales-Santana signals a clear break from earlier unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. The Court in Morales-Santana exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day. How constitutional reasoning leads to these outcomes must be carefully scrutinized—if not to change the law, then at least to understand how it comes to be. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions.

Part I parses the Court’s reasoning in Morales-Santana and explains how it differs from the cases that have come before it. This Part spends some time analyzing the Court’s decision to consider the unwed mixed-status family contemplated by the citizenship statutes, as opposed to remaining tethered to the American parents. This shift in perspective allows the Court to uncover the gendered assumptions that lie at the root of these laws, and renders the Court’s opinions in related areas vulnerable despite its assurances to the contrary. Part II then turns to what the Court did not do. The opinion in Morales-Santana fails to identify with any specificity the burdens that might accrue to the caretaking parent. It also ignores the ways in which same-sex couples are affected by, and could have helped challenge, the heteronormative family the laws presume. This Part concludes by highlighting the obvious – that the decision not only implicates gender but, critically, citizenship. Yet the Court was silent with regard to the racialized history of the citizenship rules, and fashioned a remedy that wholly ignored the predicament of the respondent, Luis Ramón Morales-Santana. As such, Morales-Santana allows the discrimination it took some steps towards eradicating, to continue.