In Pavan v. Smith, the Supreme Court summarily reversed an opinion of the Arkansas Supreme Court, which had held that the state could deny married women the right to have a spouse listed as a child’s second parent on the birth certificate if the spouse was female rather than male.  The ruling was blatantly inconsistent with Obergefell, which requires that states permit same-sex couples to marry on the same terms and conditions—with access to the same “constellation of benefits”—as opposite-sex couples.  The Supreme Court was right to summarily reverse—as it did in a case last year, V.L. v. E.L, involving Alabama’s unjustifiable refusal to give full faith and credit to adoption decrees that recognized a lesbian co-parent as the legal parent of her partner’s three children.

Arkansas law of birth certificates is typical of most states.  Under the applicable code provisions, a married woman must list her husband as the second parent of any child born during the marriage.  This is subject to a very limited exception that allows his name to be omitted if the wife, the husband, and the putative biological father each submit an affidavit denying the husband’s paternity.  Husbands have generally been deemed the legal father of their wives’ offspring, regardless of any biological connection. Studies across many decades suggest that 3-5% of children born to married women are not sired by her husband, thus this rule will usually result in identification of the biological father, but not always.

For four decades, litigants have been posing the same question to the Supreme Court: Do fathers have the same right as mothers to transmit American citizenship to their children? The Supreme Court has been asked repeatedly over four decades to answer some version of the same question: do fathers have the same right as mothers to pass on American citizenship to their children? The answer has always been “no,” with explanations rooted in the basest type of sexism that the Court decries in other contexts.  But in a recent ruling, in Sessions v. Morales-Santana, the Court said “yes,” although it stopped short of providing a remedy that for the unconstitutional harm it identified.  This case illustrates how the implications of parentage can differ by context—and why recognition of a legal parent-child relationship matters deeply.

Luis Ramón Morales-Santana was born in the Dominican Republic but has lived in the United States since he was 13.  Facing deportation, he asserted U.S. citizenship at birth because his biological father was a U.S. citizen.  Babies born in the U.S. acquire citizenship as a constitutional birthright (jus solid), but those born abroad acquire it from birth only if they have at least one citizen-parent who meets the statutory criteria for transmitting it (jus sanguine).  Luis’s father was an American citizen, and there is no question that he was both a legally acknowledged and functional father; nonetheless, he could not transmit citizenship to his son.  He moved to the Dominican Republic for work just 20 days shy of his nineteenth birthday, but the law at the time required that he be physically present in the U.S. for ten years, five of which had to occur after his fourteenth birthday.   He was in the U.S. for 19 years, but those 20 days would deprive his son, born forty-three years later, of American citizenship.  Had his mother been the American citizen, however, the outcome would have been different.  Although the presence requirements have since been shortened for unwed fathers to five years, only two of which must be after the fourteenth birthday, unwed mothers can transmit citizenship as long as they have been physically present for one year at any time prior to a child’s birth.  (A fuller explanation of the statutory criteria for citizenship-by-descent can be found in a longer piece I’ve written here.)

King Solomon of Israel was called upon, in 1 Kings 3:16-28 of the Hebrew Bible, to determine which of two women was the mother of an infant boy.  One woman’s newborn had died and the other woman’s newborn had lived, but both lay claim to the surviving infant.  In his great wisdom, King Solomon raised a sword and offered to split the baby in two, knowing that the child’s true mother would rather give up her child than let him be harmed.  The first woman agreed with the plan, but the second urged the king to “give her the living child, and in no wise slay it.”  Solomon had his answer.

Though courts do not raise swords or threaten to split babies in two, they are frequently called upon to determine questions of parentage, or who are a child’s legal parents.  A legal parent must support the child, but also has the constitutional right to determine almost every aspect of the child’s life. An adult who does not qualify as a legal parent can avoid financial obligations, but also can be shut out completely from the child’s life.  Legal parentage also determines many economic rights. Parentage law can thus make or break a family and deeply affect the life of a child.