In yesterday’s post, I introduced the 45 year old case of Stanley v. Illinois, described what we know about the Stanley family, and introduced the idea that legal parenthood should be recognized only in parents who demonstrate a commitment of care for the child. Today, I turn to what why I think members of the Court may have believed the Stanley family was African-American and what that may have meant for the decision.
If I am right that the Court could have seen the Stanley case as involving both gender equality and racial equality, there needs to be some reason to believe that at least some members of the Court would have viewed the Stanley family as African-American. I think that reason exists.
When race is not mentioned in a society where European-Americans dominate the conversation, the observer usually assumes the parties to be white. That may or may not have been true when the justices looked at Peter Stanley, however.
Think about the confounding parts of the story. For one thing, the Stanleys had children together but they weren’t married. The Stanley children were born in the 1950s and the 1960s when non-marital childbearing was much more common among African-American families than among white families. For another thing, Joan Stanley was probably employed for wages outside the home for enough time to qualify her children for survivor benefits. At the time, relatively few white women worked outside the home, but many African American women did.
As it turns out, Peter and Joan Stanley were both European-American, a fact revealed by the 1940 Census and probably confirmed by Joan’s burial being handled by a white-owned funeral home. The Court had access to neither source of information. I think it justifiable to assume, therefore, that justices could have read the record to demonstrate that Joan Stanley is an African-American woman and Peter Stanley is an African-American man.
How could the conclusion that the Stanleys are African-American influence justices to view the case differently from a case about European-American families? I think there are at least two ways the justices might have framed the case differently. Each framing has positive and negative aspects when it comes to deciding whether to recognize legal parenthood in a parent like Peter Stanley.
First is the importance of the post-Civil War amendments to the Constitution. Professor Peggy Cooper Davis has examined how the Court could have seen the Stanley case in the context of centuries-old struggles of African-Americans for legal recognition of their family ties. Professor Davis traces Stanley back to the post-Civil War amendments to the Constitution which were motivated, in part, by the arguments of slaves and of abolitionists about family ties. They argued that one of the worst abuses of slavery was the denial by slave-owners and the law to recognize the rights of slaves to marry and to have the legal rights of parenthood with respect to their children.
Claims about family ties were amplified during the Civil War, when innumerable slaves freed themselves. Many self-emancipated people took refuge in Federal military encampments, where they confronted camp commanders with demands for marriage ceremonies and other indicia of legal and inviolable rights to parenthood of their children. They believed that legal recognition of marriage and parenthood was one of the best ways to defeat the law and practice of slave states to empower masters to separate partners from one another and to sell children away from their parents.
That’s the positive side of the story. There’s also a negative side. Some of the camp commanders looked at the thousands of self-emancipated people in the camps and wondered how to keep them under control. Some concluded that the best way was to require cohabiting people to get married regardless of whether they wanted to. Commanders appear to have been acting out of the view, largely uncontested in the middle of the nineteenth century, that the family was a place of mini-government. That mini-government was not led by an equally-empowered pair of adults. Instead, it was led by the male head of household, the husband and father. Once a woman was married, she would be subject to the authority of her husband, and the camp commander would have fewer people to worry about.
You can see Stanley as reflecting both the positive and the negative sides of the story. Stanley gets recognition as a legal father and protection from unwarranted interference in that relationship, something that slaves never had. At the same time, men in Stanley’s position also get to exercise authority over those possibly-unruly women who bear their children, even in situations where only the mother is taking responsibility for caring for the children.
The second clue to framing possibilities is the Moynihan Report, which was published only a few years before the Stanley decision. The positive side of the Moynihan Report is that President Lyndon Johnson commissioned it because he wanted to know how to improve the lives of African-Americans. When it was published, however, it shook many people with its claim that the prevalence of female-headed households in the African-American community precluded much of the progress toward civil rights that the Johnson administration wanted to see. The “matriarchy” of the black family was described as pathological. Many people seem to have interpreted the Moynihan report as advocating policies capable of enlarging the power of men in African-American families.
Given the apparent blessing of Daniel Patrick Moynihan, a highly visible and respected public intellectual, it’s plausible that justices who wanted to advance racial equality could have thought it wise to expand the authority of fathers with respect to their children, especially when the father is African-American. At the same time, if the court understood the decision as reducing the independence of mothers with respect to their children, that result could be justified as an appropriate way to restrict some of the power of the black matriarchy. Remember that, prior to Stanley, an unmarried woman who gave birth to a child could place the child for adoption without consulting the child’s biological father. She was also the sole legal guardian of the child. In many states, a paternity finding could result in an order for child support without empowering the unmarried father to seek custody or visitation. After Stanley, the single father could not be deprived of the rights previously exercised solely by single mothers.
If the Court had understood the Stanleys to be European-American, I wonder if it would have heard the case. After all, if Stanley were a lower-class white man, a ruling in his favor would not be viewed as advancing a racial justice agenda. Enhancing his authority as a father relative to the power of mothers has no obvious advantage in a group where marriage before childbearing is the dominant practice, because the married father already had at least equal power with the married mother in the law. All that ruling for Stanley would do, therefore, would be to enhance legal rights affecting non-marital childbearing in a group that generally avoided the practice at the time.
Any assumptions that justices may have made about seeing the Stanleys as an African-Americans were not revealed in the decision. If some justices believed, however, that a decision in favor of Stanley advanced both racial equality and gender equality, a little more explicit attention to intersecting issues would have been a good idea, particularly when it comes to issues of power. Instead, the Court ends up, I think, embedding into the law of parenthood claims about African-American families and the need for men to control the mothers of their children.
Stanley’s legacy has been that non-marital fathers have gained power and some of that gain has come at the expense of non-marital mothers. The change is positive in the many cases where both parents are actively-engaged and committed to their children. It is also positive when the father, like Stanley, demonstrates his commitment to care for the child and the mother is unavailable or uncommitted. But where the mother is committed and the father is not, the outcome gives him a chance for control over her for the sake of a child who gains no benefit.
The negative legacy of Stanley continues to support legal claims of uninvolved fathers because the Court elevated the individual rights of Peter Stanley over considerations of the relationship that Stanley had with the children. The Court might have had reason to do so if it could not otherwise advance an agenda of racial justice, but it’s hard to make that case without buying into Moynihan’s claims that black mothers are in need of male supervision. What the Court could have done instead was to explicitly recognize the intersection of race and gender and try to deal with both in fair ways. In my view, a relationship-based approach does that by respecting and valorizing the roles that men and women play in the lives of children when they commit to caring for those children.
In my next post, I’ll discuss the negative legacy of Stanley in the context of this year’s failed attempt in Maryland to restrict the paternal rights of men when the child is born as the result of the man raping the mother.