Stanley v. Illinois and Rapist-“Fathers”
I am delighted to return to Concurring Opinions as a guest contributor. Many thanks to Solangel for her kind invitation.
My posts this week are about the continuing influence of Stanley v. Illinois, 45 years after it was decided. Stanley’s legacy is positive in terms of encouraging legal recognition of men as fathers to children for whom they provide care and commitment. The legacy also includes, however, legal recognition of men as fathers in the absence of any involvement, much less care and commitment. This part of the legacy contributes to the empowerment of men as parents at the expense, in some cases, of the empowerment of women as parents, an ironic result given the gender equality rhetoric of the decision.
One example of the negative legacy is the ongoing controversy about whether a man should enjoy legal fatherhood when his rape of the mother resulted in her pregnancy. Later, I’ll address that controversy in the context of the recent failure of corrective legislation in Maryland.
In my view, the negative legacy of Stanley reflects unexamined and intersecting stereotypes not only about gender but also about race. I argue that the Justices may have assumed, without evidence and without express acknowledgement, that the Stanley family was African-American. If that speculation is correct, the court may have been pursuing what some justices saw as a racial justice agenda along with gender equality claims. I will address in my next post where the agenda may have led the court.
First, some background. In 1972, the Supreme Court decided that Illinois was required to recognize Peter Stanley as a parent, even though he was not married to the mother of his children when she died. Because Stanley, as an unmarried father, was the surviving parent, the state declared the younger Stanley children parent-less and wanted to take them into care. According to the Court, the failure of the parents to marry was not equivalent to the evidence of neglect or abuse that would be required if the state wanted to take into care the children of a mother or a married father. The Court concluded that unmarried fathers were entitled to recognition as parents and the same level of process accorded to all mothers and to married fathers before the state could take their children.
In a concurring opinion that I wrote for Feminist Judgments a few years ago, I agree that Peter Stanley was entitled to parental recognition. I argued that recognition should not arise solely from Stanley’s biological connection to the children, however. Instead, Stanley’s entitlement should be based in the level of care and commitment he had demonstrated for his children.
My concurrence reflects two strands of feminist thought. First, many feminists emphasize that caring relationships should count for more in the law. Second, many feminists agree that law needs to take stories into account to provide context and support reality-based law-making. In particular, courts do a better job deciding cases when they see people’s relationships to one another as meaningful, particularly relationships of support and care. Understanding law in the context of people’s lives, their “stories,” is equally essential. The Stanley Court did little of either. Instead, the Court came to a broad, abstract conclusion that all people who claim parenthood through a blood relationship, marriage or adoption are the same, regardless of what any of those people have demonstrated in terms of connection with the child.
I am not arguing that a feminist Justice would have dissented; I agree with the outcome of the case. The record, as I will discuss, demonstrates that Peter Stanley was involved with his children, shared a household with them, and was concerned for their future. His marital status should not be cause for depriving him of parental status; only a finding of unfitness should justify that deprivation.
Where the Court and I part company is on the question of why. The Court justifies its rule on the basis that the father has a right to be treated the same as a mother. In my view, the parental rights of any person, whether father or mother, should turn on whether the person has a relationship with the child that demonstrates a level of commitment to the child’s care. Where a person with a formal claim to parenthood, whether through birth, marriage or adoption, has never exercised any commitment to the child’s care, the state should be allowed to disregard that person’s claim to parenthood.
The Court’s focus on equality strikes me as not coincidental, but I’m not sure it was solely gender equality that the justices were thinking about. In my view, at least some of the justices saw Stanley as part of the Court’s racial justice jurisprudence. In light of this possibility, it also seems important that members of the Court probably thought Peter Stanley and his family were African-American, as I’ll discuss later.
The case is a good example of how claims about racial justice and claims about gender justice may lead to confounding results if not understood and examined contextually. Empowering Peter Stanley to resist state intervention into his family because of his biological attachment to the children has been interpreted over the years since as empowering all unmarried fathers to be recognized as parents. Once recognized as a parent, these men have the opportunity to restrict the autonomy of the mothers of their children in parenting decisions such as adoption and custody. That outcome is inconsistent with preferring involved, committed and caring parents, whether male or female, over others whose connection to a child is solely formal or biological. Ironically, that outcome is hostile, in many cases, to respecting women’s equality. The risks may be greatest for women of color.
My conclusion is that a relationship-based approach to Stanley’s claims would not have led to a different result for Peter Stanley. Because a relationship-based approach adds context to the question of who should be recognized as a parent, further, it would help to counter the empowerment of the uninvolved parent that has been the negative legacy of Stanley.
To understand Stanley, it helps to know something about the story of the Stanley family. The record, however, is scanty. Here’s what we know from the record and additional research. Peter and Joan had a long-term relationship and may have believed they were married, although no documentation was ever uncovered. All accounts show them living together during the last few years before Joan’s death. For the 17 or so years before that, they lived together continuously or intermittently, depending on whose account is accepted. Their oldest child was found to be neglected at some point before her mother died. The two younger children were born in the last few years before Joan’s death, and they were living with Joan and Peter when she died. We also know that Social Security survivor benefits were paid for the three children, which seems to mean that Joan Stanley earned a salary for some period of time. Money was tight, at least after Joan’s death.
Here’s some of what the Court’s record does not reveal: whether Joan or Peter would identify themselves as African-American or European-American, what they did for a living, whether both provided economically to the family, what led to Joan’s early demise, whether Peter cared for her during her illness, and what the oldest child experienced before or after her mother’s death.
In my next post, I’ll discuss why I think members of the Court may have regarded the Stanleys as African-American and what that may have meant to them.