It's often difficult for a feminist to garner much sympathy for the fathers' rights movement. At first glance it seems, at best, redundant. Fathers monopolized familial rights and power for much of our history. Nineteenth-century common law gave men the right to control and the duty to support children born in marriage, while women were left with the rights and responsibilities regarding children born out of wedlock. Women and children even derived their citizenship from male "heads" of families. (In the early 1900s, American women forfeited their citizenship when they married foreign men.) Marital rape was generally legal until the 1970s. It's not surprising that the domestic subordination of women, under law, helped fuel the nineteenth- and twentieth-century women's movements.
Fortunately, feminists have enjoyed considerable success in their efforts to reform discriminatory laws governing family life and divorce. Equitable distribution laws, for example, reflect a feminist view of women as equal partners in a marital enterprise, not as subordinates in a familial hierarchy. But according to men's rights advocates, feminists have won more than equality for women; they've won unfair advantages, initiating an era of discrimination against fathers and husbands.
Feminists tend to dismiss this complaint as "backlash," often with good reason; still, it deserves to be considered. I haven't run across good, recent quantitative data on the comparative treatment of men and women embroiled in marital disputes or other familial battles, so I hesitate to take sides in this debate. But I have heard anecdotal evidence (partly from lawyers) about the abuse of restraining orders against men and the preferences enjoyed by women in custody and marital property disputes, especially when minor children are involved. It's not hard to imagine that judges who've had their collective consciousness raised might overcompensate for prior discrimination against women by discriminating against a few men. But I suspect that gender bias varies by judge and jurisdiction and that, nowadays, both sexes have legitimate complaints about it.
Traditional notions of gender difference still help determine claims of unequal treatment, sometimes to the detriment of women and sometimes to the detriment of men. In a 1998 case, Miller v. Albright, the Supreme Court upheld a law that denied men equal rights to transmit citizenship to children born outside of marriage. The case involved a citizenship application by a woman born out of wedlock in the Philippines to a Filipino mother. Her father was an American ex-serviceman who acknowledged his paternity when the daughter was 22 and was declared her father by the Texas courts. Federal law, however, required that paternity be established by the age of 18 in order for citizenship to be transmitted by an American father to an out-of-wedlock child born abroad to a noncitizen mother. There were no similar limitations on transmission of citizenship by American mothers who gave birth abroad and out of wedlock to children with noncitizen fathers.
The Court upheld the differential treatment of men and women partly because it assumed that mothers naturally develop closer relationships with their offspring than fathers. (It also held that Congress could decide to "reward" unmarried women for choosing motherhood over abortion.) As Justice Ruth Bader Ginsburg noted in her dissent, the Court's decision was based on "generalizations (stereotypes) about the way women (or men) are. These generalizations pervade [the majority opinion], which constantly relates and relies on what 'typically' or 'normally,' or 'probably,' happens 'often.'"
Assumptions that men typically try to evade responsibility for out-of-wedlock children strengthen efforts to hold some men--or any men--accountable for child support. Consider the current controversy over the use of DNA testing in paternity cases. In Maryland the state court of appeals ruled this summer (four to three) in Langston v. Riffe that men are entitled to use DNA tests to contest prior findings of paternity, at virtually any time. The court expressly declined to put a time limit on paternity challenges under Maryland law and rejected the notion that an application for a DNA test should be granted only if the test is deemed to be in the best interest of the child.
Why is this ruling controversial? Doesn't justice require finding out the truth about paternity whenever it becomes available? Not according to some advocates for children and women, who fear that men will abandon children whom they have been supporting for years if they are able to disprove their paternity. In his dissenting opinion, Chief Judge Robert Bell argued that the court's decision would result in an increase in requests for blood and genetic testing by men seeking to avoid paying child support: "They have nothing to lose and everything to gain. The only losers under the majority opinion are the children." Joan Entmacher of the National Women's Law Center observed that successful but belated paternity challenges will cause considerable economic disruption and "children will also be hurt when genetic tests disprove something that is a cornerstone of their identity."
These statements are hard to dispute, but they're remarkably unpersuasive. If the cornerstone of your identity is a lie, it may be in your best long-term interest to uncover it, especially if you're concerned about your genetic inheritance. In any case, if a man is ordered to pay child support by mistake, on the basis of inaccurate information or a knowingly false charge of paternity, fairness demands that the mistake be acknowledged (and damn the consequences). Excessive deference to the finality of judicial rulings is quite dangerous. Concern about efficiency and "closure" is what keeps people in prison long after evidence of their innocence has emerged, pursuant to Supreme Court decisions and federal legislation greatly limiting the right to appeal wrongful convictions. It is no occasion for celebration that we now have a judicial system in which an interest in finality is allowed to trump the truth.
This lamentable trend dramatizes the perils of a results-oriented approach to justice. If you're primarily concerned with clearing criminal cases, you may not mind occasionally convicting the wrong man, especially if you assume that a defendant who is not guilty of the crime for which he is punished is probably guilty of something. (I imagine that the assumption that everyone on death row is a bad guy, whether or not he was fairly convicted, explains people's cavalier attitude toward executions.) If your primary goal is to secure financial aid for children, you may not care if some men are ordered to provide it because of false findings of paternity. If you're focused exclusively on supporting women, you may be oblivious to gender bias directed against men; or you may welcome it.
Ideally, the judicial system should be driven by a vision of fairness and equal treatment, whomever it benefits. Ideally, due process should prevail over the desire for any particular result. Interest-group politics belongs in legislatures, not courts. In fact, courts are supposed to operate as checks on the political process and the power of some groups to deprive others of fundamental rights. So you can't judge the progress of feminism by the number of disputes in which women prevail over men. If the complaints of fathers' rights advocates are well-founded, they're testaments to the failures of feminism, not its successes. Only chauvinists want sex to matter more. Feminists should strive to make it matter less. ¤
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