No. 14-1106

IN THE

Supreme Court of the United States __________

WILLIAM E. BOLDEN, Petitioner,

v.

JOHN AND JANE DOE, Respondents.

__________

On Petition for a Writ of Certiorari to the Supreme Court of Utah

__________

BRIEF OF LAW PROFESSORS AS AMICI CURIAE SUPPORTING PETITIONER

__________

April 13, 2015

LYNN E. BLAIS Counsel of Record MICHAEL F. STURLEY 727 East Dean Keeton Street Austin, Texas 78705 (512) 232-1334 (lblais@law.utexas.edu) ERIN GLENN BUSBY 411 Highland Street Houston, Texas 77009 (713) 868-4233

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TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICI CURIAE ................................ 1

REASONS FOR GRANTING THE WRIT ................. 1

I. THE DRAMATIC RISE IN THE NUMBER OF NONMARITAL BIRTHS AND THE LAUDATORY INCREASE IN INVOLVED PARENTING BY UN-MARRIED FATHERS MAKES THIS AN IMPORTANT ISSUE THAT WAR-RANTS THIS COURT’S ATTENTION ........... 3

A. The Dramatic Rise In The Number Of Children Born Out Of Wedlock Makes The Issue Of Equal Protection Of Unmarried Fathers In Adoption Proceedings A Pressing One ....................... 3

B. The Changing Role Of Fathers And The Corresponding Increase In The Number Of Single Fathers Raising Children Highlights The Importance Of The Equal Protection Rights Of Unmarried Fathers ..................................... 5

II. THIS CASE PRESENTS AN IMPOR-TANT CONSTITUTIONAL ISSUE AT THE CONFLUENCE OF TWO STRANDS OF THIS COURT’S JURIS-PRUDENCE ON THE RIGHTS OF UNMARRIED FATHERS ................................ 8

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A. This Court Has Upheld Sex-Based Distinctions Between Unmarried Fathers And Mothers That Help Establish Paternity Or Provide An Opportunity For Developing A Parent-Child Relationship ......................... 9

B. This Court Has Held That The Constitutionality Of Distinctions Between Unmarried Fathers And Mothers (Or Married Fathers) Of Older Children May Depend On Whether The Unmarried Father Has Established A “Substantial Relation-ship” With The Child ................................ 12

C. This Case Raises An Equal Protection Challenge At The Convergence Of The Court’s Prior Jurisprudence On The Rights Of Unmarried Fathers ........... 15

III. THE EQUAL PROTECTION CLAUSE PROHIBITS LEGISLATURES FROM MAKING SEX-BASED DISTINCTIONS PREMISED ON OUTMODED GEN-DER STEREOTYPES LIKE THOSE EMBODIED IN THE UTAH ADOP-TION ACT ...................................................... 18

A. The Utah Statute’s Differential Treatment Of Men And Women Is Predicated On Outmoded And Overbroad Gender Stereotypes That Do Not Reflect The Changing Face Of Parenthood In The United States ....... 18

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B. While Family And Child-Welfare Law Is Typically Within The Purview Of The States, This Court Has Previously Rejected State-Created Sex-Based Distinctions Relying On Outmoded Stereotypes And It Should Reject This One As Well .............. 19

1. Enforcing well-established equal protection limitations on govern-mental attempts arbitrarily to discriminate based on sex does not abridge States’ rights .................... 20

2. Administrative convenience alone cannot justify sex-based distinc-tions...................................................... 20

3. This Court has also found that sex-based distinctions involving overbroad, outdated sex-based stereotypes are unconstitutional ........ 21

CONCLUSION .......................................................... 23

APPENDIX ............................................................... 1a

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TABLE OF AUTHORITIES Page

CASES

Adoption of Baby Girl, In re, 233 P.3d 517 (Utah Ct. App. 2010) ........................................... 16

Caban v. Mohammed, 441 U.S. 380 (1979) ............. 12, 13, 15, 17

Craig v. Boren, 429 U.S. 190 (1976) .............. 21, 22, 23

Flores-Villar v. United States, 131 S. Ct. 2312 (2011) ........................................................ 10, 12, 16

Frontiero v. Richardson, 411 U.S. 677 (1973) .......... 21

H.U.F. v. W.P.W., 203 P.3d 943 (Utah 2009) ............. 8

J.E.B. v. Alabama, 511 U.S. 127 (1994) ................... 23

Lehr v. Robertson, 463 U.S. 248 (1983) .... 13, 14, 15, 17

Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) ............................................. 23

Nguyen v. INS, 533 U.S. 53 (2001) ................. 9, 10, 11, 12, 16, 17

Parham v Hughes, 441 U.S. 347 (1979) ................ 9-10

Quilloin v. Walcott, 434 U.S. 246 (1976) ................. 13, 14, 15, 17

Reed v. Reed, 404 U.S. 71 (1971) .........................20, 21

Stanley v. Illinois, 405 U.S. 645 (1972) .................... 17

Stanton v. Stanton, 421 U.S. 7 (1975) ........... 20, 21, 22

United States v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008), cert. granted, 559 U.S. 1005 (2010) ..............................................................11, 12

United States v. Virginia, 518 U.S. 515 (1996) ........ 23

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ 22

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CONSTITUTION, STATUTES, AND RULES

U.S. Const.:

Amend. XIV (Equal Protection Clause) ...... 2, 9, 10, 11, 12, 18, 22, 23

Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 .......................................... 19

29 U.S.C. § 2612 .................................................. 19

Social Security Act, 42 U.S.C. § 301 et seq. ............. 22

8 U.S.C. § 1401(a)(7) ................................................. 11

8 U.S.C. § 1409(a) ..................................................... 10

Utah Adoption Act, Utah Code § 78B-6-101 et seq. ................................................................... 18

§ 78B-6-121 .....................................................15, 17

§ 78B-6-121(3) .................................................... 2, 9

§ 78B-6-121(3)(a) ................................................. 16

§ 78B-6-121(3)(b) ................................................. 16

§ 78B-6-121(3)(c) .................................................. 16

§ 78B-6-121(3)(d) ................................................. 16

Sup. Ct. R.:

Rule 37.2(a) ............................................................ 1

Rule 37.6 ................................................................ 1

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OTHER MATERIALS

Sally C. Curtin et al., Recent Declines in Nonmarital Childbearing in the United States, U.S. CTRS. FOR DISEASE CONTROL

AND PREVENTION (Aug. 2014), available at http://www.cdc.gov/nchs/data/databriefs/db162.pdf ............................................................... 4

Douglas B. Downey, James W. Ainsworth-Darnell & Mikaela J. Dufur, Sex of Parent and Children’s Well-Being in Single-Parent Households, 60 J. MARRIAGE & FAM. 878 (1998) ................................................................... 18

Mikaela J. Dufur et al., Sex Differences in Parenting Behaviors in Single-Mother and Single-Father Households, 72 J. MARRIAGE

& FAM. 1092 (2010) .............................................. 18

Richard Fry, No Reversal in Decline of Marriage, PEW RESEARCH CTR. (Nov. 20, 2012), available at http://www.pewsocialtrends.org/2012/11/20/no-reversal-in-decline-of-marriage/ .......................................... 4

Gretchen Livingston:

Growing Number of Dads Home with the Kids, PEW RESEARCH CTR. (June 5, 2014), available at http://www.pewsocialtrends.org/2014/06/05/growing-number-of-dads-home-with-the-kids/ ........................................ 6, 19

The Rise of Single Fathers, PEW RESEARCH

CTR. (July 2, 2013), available at http://www.pewsocialtrends.org/2013/07/02/the-rise-of-single-fathers/ ............................................... 6, 7, 19

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Jennifer Ludden, Single Dads By Choice: More Men Going It Alone, NPR.org, http://www.npr.org/2012/06/19/154860588/single-dads-by-choice-more-men-going-it-alone (June 19, 2012) ...................................................... 7

Joyce A. Martin et al., National Vital Statistics Reports—Births: Final Data for 2013, Nat’l Vital Stat. Rep., Vol. 64, No. 1 (Jan. 1, 2015), available at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf ....................3, 4, 5

Joyce A. Martin et al., National Vital Statistics Reports—Births: Final Data for 2013, Supplemental Tables, U.S. CTRS. FOR

DISEASE CONTROL AND PREVENTION (Jan. 15, 2015), available at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01_tables.pdf#i04 ................................................................... 5

Kim Parker & Wendy Wang, Modern Parenthood: Roles of Moms and Dads Converge as the Balance Work and Family, PEW RESEARCH CTR. (Mar. 14, 2013), available at http://www.pewsocialtrends.org/2013/03/14/modern-parenthood-roles-of-moms-and-dads-converge-as-they-balance-work-and-family/ ................................................... 5

Cynthia Lee Starnes, Lovers Parents, and Partners: Disentangling Spousal and Co-Parenting Commitments, 54 ARIZ. L. REV. 197 (2012) ............................................................ 19

Mark Strasser, The Often Illusory Protections of “Biology Plus:” on the Supreme Court’s Parental Rights Jurisprudence, 13 TEX. J. C.L. & C.R. 31 (2007) ............................................. 8

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Jonathan Vespa, Jamie M. Lewis & Rose M. Kreider, U.S. Census Bureau, America’s Families and Living Arrangements: 2102 (Aug. 2013), available at http://www.census.gov/prod/2013pubs/p20-570.pdf ................ 6

LINDA J. WAITE & MAGGIE GALLAGHER, THE

CASE FOR MARRIAGE (2000) ................................... 4

Wendy Wang & Kim Parker, Record Share of Americans Have Never Married, PEW

RESEARCH CTR. (Sept. 24, 2014), available at http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/ ................................................................. 4

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INTEREST OF AMICI CURIAE1

Amici curiae are law professors who regularly teach and write about constitutional law, family law, and gender and the law.2 Amici have no stake in the outcome of this case other than their academic interest in the logical and rational development of the law. Because this case implicates fundamental issues of equal protection and gender equality in the family-law context, amici believe that their perspective may assist the Court in deciding whether to grant certiorari in this case.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to determine whether the Equal Protection Clause prohibits States from imposing a procedural burden unrelated to establishing paternity on the unmarried father but not on the mother of a newborn child before the father can be heard regarding the potential adoption of his child.

The structure of U.S. families has changed dramatically over the past four decades. Two trends stand out. First, the number of children born to unmarried parents has dramatically increased.

1 Pursuant to Rule 37.2(a), counsel for amici provided notice to all parties of amici’s intention to file this brief at least 10 days before its due date. The parties have consented to the filing of this brief, and letters expressing their consent have been filed with the Clerk. Pursuant to this Court’s Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 A full list of amici, including their institutional affiliations and short statements of expertise, is set forth in the Appendix to this brief.

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Second, men have become increasingly involved with the raising of their children, including a significant increase in the number of single fathers raising children on their own. Those demographic shifts highlight the importance of protecting the equal rights of unmarried fathers to be heard in any decision involving the adoption of their newborn infants, and of subjecting any legislation that treats unmarried fathers differently than unmarried mothers to heightened scrutiny to ensure that it is not based on outmoded stereotypes and presumed gender roles of men and women.

Unequal burdens placed on unmarried fathers, such as that imposed by Utah Code § 78B-6-121(3), can impede the efforts of diligent unmarried fathers to assert their interest in raising their own children, even when their paternity is fully established. As a result, in States that impose sex-based distinctions unrelated to establishing paternity on unmarried parents of newborn children, unmarried fathers who are willing and able to raise their own children can be denied their rights to object to the adoption of their infant children. In this case, even though the mother, the prospective adoptive parents, and the courts below all knew that petitioner was seeking custody of his child before the child’s birth, he was still denied the right to be heard in his child’s adoption proceeding simply because his attorney failed timely to file an affidavit that the unmarried mother of his child was not required to file. Moreover, the continued existence of unequal burdens in some States puts in jeopardy the paternal rights of unmarried fathers even in those States that treat unmarried parents equally, because unmarried mothers can travel to give birth or pursue

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adoption in a State where the unmarried father is disadvantaged.

The important issues of equal protection for unmarried fathers raised in this case warrant this Court’s attention.

I. THE DRAMATIC RISE IN THE NUMBER OF NONMARITAL BIRTHS AND THE LAUDATORY INCREASE IN INVOLVED PARENTING BY UNMARRIED FATHERS MAKES THIS AN IMPORTANT ISSUE THAT WARRANTS THIS COURT’S ATTENTION

A. The Dramatic Rise In The Number Of Children Born Out Of Wedlock Makes The Issue Of Equal Protection Of Unmarried Fathers In Adoption Proceedings A Pressing One

In 2013, more than 1.5 million babies were born in the United States to parents who were not married, reflecting a dramatic shift in the frequency of nonmarital births over the past four decades.3 A generation ago, it was the norm in this country for children to be born to married parents. In 1980, for example, less than one-fifth of all children were born to unmarried parents.4 Today, it is nearly as common for a child to be born to unmarried parents as to married parents. In 2013, the most recent year

3 After rising steadily for decades, the number of nonmarital

births peaked at 1,726,566 in 2008 and has declined slightly since then.  See Joyce A. Martin et al., National Vital Statistics Reports—Births: Final Data for 2013, Nat’l Vital Stat. Rep., Vol. 64, No. 1, at 7 (Jan. 1, 2015) (“Martin, National Vital Statistics Reports”), available at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf. 

4 See id.

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for which figures are available, more than 40% of the births were to unmarried parents.5

The trend toward more nonmarital births reflects a trend away from marriage in general. While almost three-quarters of adults were married in 1960, “barely half” of adults were married in 2011.6 “Adults are marrying later in life and the shares of adults cohabiting and raising children outside of marriage have increased significantly.”7 Indeed, in 2010, more than half of all nonmarital births were to cohabiting couples.8

The increase in nonmarital births over the past four decades exists despite geographic differences reflecting demographic variations among states.9 Although rates of nonmarital births to teenaged mothers have fallen in recent years, “nonmarital birth rates reached historic peaks for women in their

5 See id. 6 Richard Fry, No Reversal in Decline of Marriage, PEW

RESEARCH CTR. (Nov. 20, 2012), available at http://www.pewsocialtrends.org/2012/11/20/no-reversal-in-decline-of-marriage/.

7 Wendy Wang & Kim Parker, Record Share of Americans Have Never Married, PEW RESEARCH CTR. (Sept. 24, 2014), available at http://www.pewsocialtrends.org/2014/09/24/record-share-of-americans-have-never-married/. By 2000, “[t]he latest Census Bureau figures show[ed] 4 million couples living together outside of marriage . . . eight times as many as in 1970.” LINDA

J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE 36 (2000).

8 Sally C. Curtin et al., Recent Declines in Nonmarital Childbearing in the United States, U.S. CTRS. FOR DISEASE

CONTROL AND PREVENTION 4 (Aug. 2014), available at http://www.cdc.gov/nchs/data/databriefs/db162.pdf.

9 See Martin, National Vital Statistics Reports at 7.

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30s” in 2013.10 Moreover, every State is impacted by the growing number of children born to unmarried parents. In Louisiana, Mississippi, New Mexico, and the District of Columbia, more than half of all children born in 2013 were born to unmarried parents.11 Indeed, in only three States do nonmarital births account for less than 30% of all births.12

B. The Changing Role Of Fathers And The Corresponding Increase In The Number Of Single Fathers Raising Children Highlights The Importance Of The Equal Protection Rights Of Unmarried Fathers

The face of modern fatherhood has changed dramatically in the past 50 years. In two-parent families, “fathers now spend more time engaged in housework and child care than they did half a century ago.”13 In addition, “[t]he number of fathers who stay at home with their children rather than

10 In 2013, 56.6% of births to mothers aged 30-34 were

nonmarital, while 31.8% of births to mothers age 35-39 were nonmarital. See Martin, National Vital Statistics Reports at 7.

11 See Joyce A. Martin et al., National Vital Statistics Reports—Births: Final Data for 2013, Supplemental Tables, U.S. CTRS. FOR DISEASE CONTROL AND PREVENTION 6 (Jan. 15, 2015), available at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01_tables.pdf#i04. In Louisiana, 53% of all births were to unmarried women; in Mississippi, 54.5%; in New Mexico, 52%; in the District of Columbia, 50.8%. See id.

12 See id. 13 Kim Parker & Wendy Wang, Modern Parenthood: Roles of

Moms and Dads Converge as the Balance Work and Family, PEW RESEARCH CTR. 3 (Mar. 14, 2013), available at http://www.pewsocialtrends.org/2013/03/14/modern-parenthood-roles-of-moms-and-dads-converge-as-they-balance-work-and-family/.

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work outside the home has risen markedly in recent years,” nearly doubling since 1989 and totaling 2 million fathers in 2012.14

Moreover, the percentage of two-parent families has fallen significantly, with a corresponding rise in single-parent households. Between 1970 and 2012, the share of households consisting of married couples with children halved from 40% to 20%,15 and by 2012 only 64% of children lived with married parents.16 During that same period, single-parent households were ascendant, so that by 2012 nearly 35% of children lived with a single parent.17

Among single-parent households, single-father households have risen dramatically. “The number of single fathers has increased about ninefold since 1960.”18 In 1960, single-father households comprised only 14% of all single-parent households,19

14 Gretchen Livingston, Growing Number of Dads Home with

the Kids, PEW RESEARCH CTR. (June 5, 2014) (“Livingston, Growing Number of Dads Home with the Kids”), available at http://www.pewsocialtrends.org/2014/06/05/growing-number-of-dads-home-with-the-kids/.

15 See Jonathan Vespa, Jamie M. Lewis & Rose M. Kreider, U.S. Census Bureau, America’s Families and Living Arrange-ments: 2102, at 5 (Aug. 2013), available at http://www.census.gov/prod/2013pubs/p20-570.pdf.

16 See id. at 21. 17 This number includes single parents who have a

cohabiting partner. See id. at 27, fig. 8. 18 Gretchen Livingston, The Rise of Single Fathers, PEW

RESEARCH CTR. (July 2, 2013) (“Livingston, The Rise of Single Fathers”), available at http://www.pewsocialtrends.org/2013/07/02/the-rise-of-single-fathers/.

19 See id.

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accounting for about 297,000 households.20 By 2011, almost one-quarter of all single-parent households were headed by single fathers, totaling more than 2.6 million households.21 In other words, in 2011, single-father families made up an astonishing 8% of all U.S. households with minor children.22 While some single-father households include cohabiting adult partners (who are not the parents of the children in the household), single fathers without partners are also choosing to become parents at increasing rates. In 2010, “more than one million never-married men” were raising children on their own.23

These laudable trends toward increasing paternal involvement in childrearing underscore the importance of protecting the rights of unmarried fathers of newborn children by eliminating unequal burdens imposed on them based on outmoded and erroneous stereotypes about their concerns and their behaviors. Substantial numbers of unmarried fathers want to co-parent with the mother of their children or seek sole custody of their children if the mother does not wish to raise them. Sex-based distinctions that are not premised on establishing paternity can thwart the efforts of able, willing fathers to raise their own children without serving any important, legitimate governmental interest. Moreover, those distinctions can impose unconstitutional burdens on out-of-state fathers as

20 See id. 21 See id. 22 See id. 23 Jennifer Ludden, Single Dads By Choice: More Men Going

It Alone, NPR.org, http://www.npr.org/2012/06/19/154860588/single-dads-by-choice-more-men-going-it-alone (June 19, 2012).

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well, because unmarried mothers can migrate across state lines to take advantage of extra procedural burdens to preclude unmarried fathers domiciled in other States from objecting to the adoption of their infants. See, e.g., H.U.F. v. W.P.W., 203 P.3d 943, 953 (Utah 2009) (holding that an Arizona father could not object to the adoption of his infant in Utah after he failed to comply with Utah’s statutory requirements because he “had reason to believe” that the unmarried mother had moved to Utah based on her attorney’s representations even though the mother had told the father she had not moved)

This Court’s lack of guidance on the equal protection issue has left state courts “confronted by a dizzying array of cases involving non-marital fathers seeking to establish . . . parental rights [with] no clear jurisprudence specifying the proper approach to be taken.”24

II. THIS CASE PRESENTS AN IMPORTANT CONSTITUTIONAL ISSUE AT THE CONFLUENCE OF TWO STRANDS OF THIS COURT’S JURISPRUDENCE ON THE RIGHTS OF UNMARRIED FATHERS

This Court’s prior cases leave open two issues about sex-based distinctions in parental rights that converge in this case. First, this Court has upheld sex-based distinctions between unmarried fathers and mothers when those distinctions serve the goals of establishing paternity and ensuring an opportunity for the unmarried father to establish a parent-child relationship, but has not determined

24 Mark Strasser, The Often Illusory Protections of “Biology

Plus:” on the Supreme Court’s Parental Rights Jurisprudence, 13 TEX. J. C.L. & C.R. 31, 58-59 (2007). 

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whether sex-based distinctions not related to these interests survive heightened scrutiny. Second, when an unmarried father has seized the opportunity to establish a relationship with his child, this Court has required equal treatment for that father and the mother; but this Court has not decided when such equal treatment is required for the unmarried father of a newborn. This case involves a known unmarried father who has admirably stepped forward to establish a parent-child relationship with his newborn son. The sex-based affidavit requirement of Utah Code § 78B-6-121(3) that prevented him from establishing that relationship is unrelated to determining paternity. Thus, this case offers the opportunity for this Court to determine whether sex-based requirements imposed on unmarried fathers of newborns but not unmarried mothers that go beyond those necessary to establish paternity violate the Equal Protection Clause.

A. This Court Has Upheld Sex-Based Distinctions Between Unmarried Fathers And Mothers That Help Establish Paternity Or Provide An Opportunity For Developing A Parent-Child Relationship

This Court has held that sex-based distinctions between unmarried fathers and mothers do not violate the Equal Protection Clause to the extent that they are substantially related to the important governmental interests of (1) establishing the existence of a biological relationship between the putative father and the child; and (2) ensuring that the opportunity to establish a parental relationship exists at some point before the child reaches adulthood. See Nguyen v. INS, 533 U.S. 53, 62, 64-65 (2001); see also Parham v Hughes, 441 U.S. 347, 359

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(1979) (upholding a Georgia statute that permitted the mother of an illegitimate child to sue for wrongful death of the child, but precluding the father from doing so unless he had taken the additional step of legitimating the child). But this Court has explicitly not determined whether the Equal Protection Clause bars sex-based distinctions between unmarried fathers and mothers that do not serve either of those important state interests. See Flores-Villar v. United States, 131 S. Ct. 2312 (2011) (mem.) (per curiam).

In Nguyen, the Court rejected an equal protection challenge to 8 U.S.C. § 1409(a). That provision requires, in order for an unmarried citizen parent to transmit U.S. citizenship to a foreign-born child, that “one of three affirmative steps be taken if the citizen parent is the father, but not if the citizen parent is the mother: legitimation; a declaration of paternity under oath by the father; or a court order of paternity” at some point before the child’s eighteenth birthday. 533 U.S. at 62. The Court held that the additional requirement imposed on unmarried citizen fathers was justified by the biological fact that unmarried mothers and fathers were not similarly situated with respect to their offspring in two important regards. First, while the biological fact of maternity is “verifiable from the birth itself,” an unmarried father’s parental claims must be proved by other means. Id. Second, for a biological mother, “the opportunity for a meaningful relationship [with the] child inheres in the very event of birth,” while “[t]he same opportunity does not result from the event of birth, as a matter of biological inevitability, in the case of the nonmarital father.” Id. at 63. Thus, the Court held that Congress’ decision to

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impose “minimal” obligations that could be “satisfied on the day of birth, or the next day, or for the next 18 years” on an unmarried citizen father but not an unmarried citizen mother substantially advanced the important governmental interests of establishing paternity and ensuring the opportunity for a parent-child relationship. Id. at 70-71.

Several years after Nguyen, this Court granted certiorari in Flores-Villar to determine whether a different statutory provision relating to the citizenship of a foreign-born child of unmarried parents violated the Equal Protection Clause. United States v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008), cert. granted, 559 U.S. 1005 (2010). Flores-Villar involved a subsequently amended provision of the federal code, 8 U.S.C. § 1401(a)(7), which imposed longer physical-presence requirements on unmarried citizen fathers than on unmarried citizen mothers for purposes of transmitting their citizenship to a foreign-born child. 536 F.3d at 994-95. To transmit citizenship to his child, an unmarried citizen father had to have been physically present in the United States for a total of 10 years, at least five of which were after the father’s fourteenth birthday, before the birth of the child. Id. In contrast, an unmarried citizen mother of a foreign-born child could transmit her citizenship to her child if she had been physically present in the United States for one continuous year before the child’s birth. Id. The additional physical-presence requirement, unlike the legitimation requirements in Nguyen, was not substantially related to the state interest in establishing paternity or ensuring the opportunity to develop a parent-child relationship.

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The Ninth Circuit upheld the additional physical-presence requirement in Flores-Villar, relying primarily on Nguyen. Id. at 993. This Court affirmed the Ninth Circuit’s decision by an equally divided Court. Flores-Villar v. United States, 131 S. Ct. 2312 (2011) (mem.) (per curiam).

This case presents another opportunity to resolve the unanswered question whether the Equal Protection Clause prohibits sex-based distinctions between unmarried fathers and mothers that are unrelated to establishing paternity or ensuring the opportunity for a meaningful parent-child relationship. Moreover, in this case, the constitutional claims of the unmarried father are more straightforward and pressing than in Nguyen and Flores-Villar, as Utah’s sex-based distinction cannot be justified by the unique federal interests implicated in the immigration and naturalization context.

B. This Court Has Held That The Constitutionality Of Distinctions Between Unmarried Fathers And Mothers (Or Married Fathers) Of Older Children May Depend On Whether The Unmarried Father Has Established A “Substantial Relationship” With The Child

This Court held that sex-based distinctions in the treatment of unmarried fathers and mothers of older children violate the Equal Protection Clause if the unmarried father has “a relationship with his children fully comparable to that of the mother,” Caban v. Mohammed, 441 U.S. 380, 392 (1979), but not if the unmarried father has failed to seize the opportunity to establish a “substantial relationship”

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with the child, Lehr v. Robertson, 463 U.S. 248, 266-67 (1983); see also Quilloin v. Walcott, 434 U.S. 246, 256 (1976). This case presents the issue whether an unmarried father’s relationship with a newborn infant, for whom he has claimed paternity and sought custody but with whom he has not yet had the opportunity to establish a “substantial relationship,” is “fully comparable to that of the mother” for purposes of objecting to his child’s adoption.

In Caban v. Mohammed, this Court struck down a New York statute that required the consent of an unmarried mother but not an unmarried father before a child could be adopted. The parents in that case had never married, but had lived together for five years, raising a four-and-a-half-year-old and a three-year-old in the process. 441 U.S. at 382. The father had legitimated his children by identifying himself as the father on each child’s birth certificate, and had contributed financially to the family. Id. Because of the father’s substantial relationship to his children, which this Court found to be “fully comparable to that of the mother,” this Court held that the statute violated the father’s equal protection rights. Id. at 389, 394.

In contrast, the Court has upheld the differential treatment of unmarried fathers and married fathers when an unmarried father “never established a substantial relationship” with his children. Lehr, 463 U.S. at 267. In Quilloin, the Court upheld a Georgia statute that denied an unmarried father the right to object to the adoption of his child but accorded such rights to the father of a child born in a marriage, even if the parents were subsequently divorced or separated. 434 U.S. at 248, 256. The father and mother had never married or lived

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together, and the child was in the sole custody and control of the mother from birth until the mother consented to adoption by the child’s stepfather 11 years later. Id. at 247. At that point, the unmarried father attempted to secure visitation rights or legitimate the child in order to block the adoption. Id. This Court held that “the State could permissibly give [an unmarried father] less veto authority than it provides to a married father,” because the unmarried father had never exercised “actual or legal custody over his child” and, as a result, had never taken on “any significant responsibility with respect to the daily supervision, education, protection, or care of the child.” Id. at 256.

Similarly, this Court rejected an equal protection challenge to the differential treatment of unmarried fathers and mothers when the father had “never established a substantial relationship with his daughter” in the more than two years since her birth. Lehr, 463 U.S. at 249-50. Under the applicable New York statute at the time, an unmarried mother was always entitled to notice and the opportunity to veto the adoption. Id. at 266. Only certain classes of unmarried fathers—including unmarried fathers who had been adjudicated fathers by a court, or who had filed a notice of paternity, or who had been openly living with the child and holding themselves out as fathers—had the same rights. Id. at 251-52 n.5. This Court held that, when “one parent has an established custodial relationship with the child and the other parent has . . . never established a relationship, the Equal Protection Clause does not prevent a state from according the two parents different legal rights.” Id. at 267-68.

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None of those cases involved the adoption of a newborn infant, as does this case. In Caban, the Court made clear that it did not resolve the more difficult issues implicated in the adoption of newborns, at which time “the special difficulties attendant upon locating and identifying unwed fathers at birth” might “justify a legislative distinction between mothers and fathers of newborns.” 441 U.S. at 392. Rather, the Court explicitly limited its decision to cases involving older children. Id. at 389. Similarly, in both Quilloin and Lehr, the Court pointed to the fathers’ failure to establish a relationship over a period of years (11 years in Quilloin, 2 years in Lehr) as relevant to the constitutionality of the sex-based distinctions. See Quilloin, 434 U.S. at 247; Lehr, 463 U.S. at 249-50.

C. This Case Raises An Equal Protection Challenge At The Convergence Of The Court’s Prior Jurisprudence On The Rights Of Unmarried Fathers

This case presents an excellent opportunity for the Court to clarify whether States may impose more stringent requirements on unmarried fathers than on unmarried mothers before they can object to the adoption of their children, when those requirements are not related to establishing paternity, and whether unmarried mothers and fathers are “similarly situated” with regard to their newborn children. Lehr, 463 U.S. at 267.

This case is an excellent vehicle for deciding that issue. The sworn affidavit required of unmarried fathers but not of mothers is wholly unrelated to establishing the identity of the father. Utah Code § 78B-6-121 imposes two obligations on unmarried

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fathers intended to establish paternity and provide notice of the father’s claim of paternity, Utah Code § 78B-6-121(3)(a), (c), and another to require the father to pay or offer to pay pregnancy expenses, id. § 78B-6-121(3)(d). In addition, the statute imposes an additional requirement: that the unmarried father (but not the mother) file an affidavit stating that he is fully able and willing to have custody of the child, detailing his plans for care of the child, and agreeing to a court order of child support and the payment of expenses related to pregnancy and childbirth. Id. § 78B-6-121(3)(b). That additional affidavit requirement is unrelated to the establishment of paternal identity and is strictly enforced. In this case, petitioner was denied the right to object to the adoption of his infant because he filed the required affidavit several days late, notwithstanding the fact that his child was still only weeks old and the adoption proceeding was in its early stages. Pet. App. 6a-7a. See also In re Adoption of Baby Girl, 233 P.3d 517, 522 (Utah Ct. App. 2010) (noting that the unmarried father’s detailed affidavit “achieved substantial compliance with the statute” but holding that “substantial compliance . . . is not enough”). Therefore, this case will allow the Court to decide the important constitutional issue left open by Nguyen and Flores-Villar.

Similarly, this case presents an opportunity to clarify the extent of the relationship an unmarried father must have with his newborn infant to require a State to afford him the same rights as the unmarried mother with respect to the newborn’s adoption. For cases involving the adoption of older children, the equal protection inquiry has focused on

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the extent to which the unmarried father has developed a relationship with his child. See Lehr, 463 U.S. at 262 (“If [the natural father] grasps that opportunity [to develop a relationship with his offspring] and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship . . . . If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.”); Caban, 441 U.S. at 392 (“In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the state from withholding from him the privilege of vetoing the adoption of that child.”).25 But this Court has intimated that the adoption of newborn infants may require a different analysis—an analysis not yet articulated. See Caban, 441 U.S. at 392 n.11. Section 78B-6-121 establishes different criteria for unmarried fathers than mothers to object to their child’s adoption when the child is less than six months old at the time of placement. See Utah Code § 78B-6-121. Thus, this case provides an opportunity

25 Cf. Nguyen, 533 U.S. at 64-65 (holding that ensuring a

foreign-born child and unmarried citizen parent have an opportunity to develop a relationship that is both formally recognized and clothed in “real, everyday ties” is an important governmental interest). Compare Stanley v. Illinois, 405 U.S. 645, 658 (1972) (invalidating a statute that allowed the State to automatically remove children from an unmarried father’s custody while requiring an unfitness hearing prior to removal from any other class of parents), with Quilloin, 434 U.S. at 256 (upholding a statute requiring an unmarried father to legitimate a child before acquiring the right to veto an adoption because, unlike a married father, the appellant had never “shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child”).

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to determine whether the Equal Protection Clause permits States to presume that known unmarried fathers are differently situated with respect to their newborns than unmarried mothers, and what burdens States may impose on unmarried fathers but not mothers at this stage.

III. THE EQUAL PROTECTION CLAUSE PROHIBITS LEGISLATURES FROM MAKING SEX-BASED DISTINCTIONS PREMISED ON OUTMODED GENDER STEREOTYPES LIKE THOSE EMBODIED IN THE UTAH ADOPTION ACT

A. The Utah Statute’s Differential Treatment Of Men And Women Is Predicated On Outmoded And Overbroad Gender Stereotypes That Do Not Reflect The Changing Face Of Parenthood In The United States

The idea that unmarried fathers care less about their children than do unmarried mothers is outmoded. Academic studies have long since refuted the antiquated notion that single men are less effective parents than single women.26

As noted above, the face of modern fatherhood has changed. More married men are forgoing work to

26 See, e.g., Douglas B. Downey, James W. Ainsworth-Darnell & Mikaela J. Dufur, Sex of Parent and Children’s Well-Being in Single-Parent Households, 60 J. MARRIAGE & FAM. 878, 888 (1998) (“[T]he overwhelming pattern is one of little difference in well-being between respondents who grew up with a single father and those who were raised by a single mother.”); Mikaela J. Dufur et al., Sex Differences in Parenting Behaviors in Single-Mother and Single-Father Households, 72 J. MARRIAGE & FAM. 1092, 1102 (2010) (finding that parents of either sex become more similar when they perform most of the parenting).

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stay at home with children, and more unmarried men are raising children alone.27 Evolving state custody laws reflect society’s preferences for keeping fathers involved in their children’s care after divorce. “In the 1980s, courts and legislatures increasingly embraced the revolutionary concept of joint custody,” and, by 1989, 34 States had adopted some form of joint-custody statute.28 Similarly, the Family and Medical Leave Act of 1993 incorporates this modern understanding of parenting as a responsibility voluntarily assumed by both men and women. The Act provides up to 12 weeks of family-care leave for all covered employees—male or female. 29 U.S.C. § 2612.

B. While Family And Child-Welfare Law Is Typically Within The Purview Of The States, This Court Has Previously Rejected State-Created Sex-Based Distinctions Relying On Outmoded Stereotypes And It Should Reject This One As Well

Sex-based distinctions must be substantially related to important governmental interests and cannot be premised on archaic and overbroad generalizations that employ sex as an inaccurate proxy for other, acceptable classifications. Because the Utah adoption statute’s differential treatment of men and women is rooted in such stereotypes, this Court should reject the statute and the archaic, overbroad sex-based distinction on which it relies.

27 See Livingston, Growing Number of Dads Home with the

Kids; Livingston, The Rise of Single Fathers. 28 Cynthia Lee Starnes, Lovers Parents, and Partners: Disen-

tangling Spousal and Co-Parenting Commitments, 54 ARIZ. L. REV. 197, 222 (2012).  

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1. Enforcing well-established equal protection limitations on governmental attempts arbitrarily to discriminate based on sex does not abridge States’ rights

Even when recognizing that family and child-welfare law is within the ambit of individual States, this Court has steadfastly safeguarded equal protection rights when “nothing rational” supports a distinction based on sex. Stanton v. Stanton, 421 U.S. 7, 14 (1975). Individual States are “denie[d] . . . ‘the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute.’ ” Id. at 13 (quoting Reed v. Reed, 404 U.S. 71, 75-76 (1971)). In Stanton, this Court held that the application of Utah’s age of majority statute resulting in an obligation of a noncustodial parent to pay child support for any male child until his twenty-first birthday but only until the eighteenth birthday of any female child “denie[d] the equal protection of the laws.” Id. at 17. Even so, this Court’s “conclusion . . . [did] not finally resolve the controversy.” Id. Affirming Utah’s role in establishing its child-welfare law, this Court held that whether noncustodial parents should have to pay child support for children of both sexes until the age of 18 or 21 was “plainly . . . an issue of state law to be resolved by the Utah courts on remand.” Id. at 18.

2. Administrative convenience alone can-not justify sex-based distinctions

In 1971, this Court—using the rational-basis test because heightened scrutiny had not yet been

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applied to sex-based distinctions—struck down a state probate code provision preferring the appointment of men over women as the administrator of a decedent’s estate. “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.” Reed, 404 U.S. at 76. This Court has subsequently recognized Reed as the “underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification.” Craig v. Boren, 429 U.S. 190, 198 (1976); see also Frontiero v. Richardson, 411 U.S. 677, 689 (1973) (rejecting “administrative convenience” as a justification for applying gender-based stereotypes).

3. This Court has also found that sex-based distinctions involving overbroad, outdated sex-based stereotypes are unconstitutional

This Court has routinely rejected sex-based distinctions that perpetuate obsolete norms regarding the roles of men and women in a wide variety of different contexts, including child support, Social Security benefits, peremptory challenges, and education.

The Stanton Court rejected overbroad sex-based generalizations in the context of family life as early as 1975. In specifying that “old notions” regarding the varying responsibilities of men and women had no place in modern equal protection analysis, the Court explained: “No longer is the female destined solely for the home and the rearing of the family, and

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only the male for the marketplace and the world of ideas.” 421 U.S. at 14-15. With respect to child support and establishing the age of adulthood, “no valid distinction between male and female may be drawn” under any level of scrutiny, even rational-basis review. Id. at 17.

The same year that the Stanton Court held sex-based distinctions unconstitutional with respect to child support, the Court held that a sex-based distinction mandated by the Social Security Act also violated the Equal Protection Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). The Court specifically linked its analysis to the legislature’s use of overbroad stereotypes, noting that “Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not” and calling the gender-based distinction “gratuitous.” Id. at 652-53.

This Court has subsequently held a series of discriminatory statutes unconstitutional because they were based on overbroad sex classifications. In Craig, for example, the Court held that “archaic and overbroad generalizations” could not justify using sex distinctions to determine eligibility for certain governmental entitlements. 429 U.S. at 198. The Craig Court criticized “increasingly outdated misconceptions concerning the role of females in the home” as “loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy.” Id. at 198-99. “Intentional discrimination on the basis of gender by state actors,” the Court later explained in a case involving peremptory challenges, “violates the Equal Protection Clause . . . [when] . . . the discrimination serves to ratify and perpetuate invidious, archaic,

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and overbroad stereotypes about the relative abilities of men and women.” J.E.B. v. Alabama, 511 U.S. 127, 131 (1994).

Discriminatory statutes, in sum, “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” United States v. Virginia, 518 U.S. 515, 516 (1996). Supposed “inherent differences” between men and women may not be used to impose “artificial constraints on an individual’s opportunity,” id. at 533, and state actors may not exclude individuals from opportunities based on “fixed notions concerning the roles and abilities of males and females,” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982).

The sex-based distinction in the Utah statute rests upon the same type of outdated and overbroad stereotypes that this Court has rejected in the past. As men have taken on more responsibilities in the home and engaged in single parenting at higher rates, Utah’s discrimination against them in the parenthood context has become more obviously suspect. Following this Court’s history of characterizing “increasingly outdated misconceptions” concerning the respective roles of men and women in the home as “loose-fitting characterizations incapable of supporting state statutory schemes . . . premised upon their accuracy,” Craig, 429 U.S. at 198-99, the Court should reject the Utah statute as an impermissible violation of the Equal Protection Clause.

CONCLUSION

The petition for a writ of certiorari should be granted.

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Respectfully submitted, April 13, 2015

LYNN E. BLAIS Counsel of Record MICHAEL F. STURLEY 727 East Dean Keeton Street Austin, Texas 78705 (512) 232-1334 (lblais@law.utexas.edu) ERIN GLENN BUSBY 411 Highland Street Houston, Texas 77009 (713) 868-4233

APPENDIX

1a

List of Amici (titles and institutional affiliations are

provided for identification purposes only) 

Professor Keith Cunningham-Parmeter Professor Keith Cunningham-Parmeter is an

associate professor of law at Willamette University College of Law. His research is concerned with work-family policy, gender theory, and immigrant workers’ rights. His recent law review articles include “Marriage Equality, Workplace Inequality: The Next Gay Rights Battle” in volume 67 of Florida Law Review, “(Un)Equal Protection: Why Gender Equality Depends on Discrimination” in volume 109 of Northwestern University Law Review, and “Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination,” in volume 24 of Columbia Journal of Gender and Law.

Professor Nancy Dowd Professor Nancy Dowd is David H. Levin Chair

in Family Law at The University of Florida Levin College of Law and the director of the Center on Children and Families. She teaches Constitutional Law and Family Law. She is a prolific scholar in the area of family law, including seven books and countless articles, with a focus on fatherhood, single parent and other non-traditional families, gender and race issues, and juvenile justice. She is also the editor of a series on family law and social policy at New York University Press. Her books include The Man Question: Male Privilege and Subordination (NYU Press, 2010), Redefining Fatherhood (NYU Press, 2000), and In Defense of Single Parent Families (NYU Press, 1997).

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Professor Jeffrey Parness Professor Emeritus Jeffrey Parness teaches and

writes on maternity and paternity laws, the legal status of the unborn, and state constitutional equality laws at Northern Illinois University College of Law. He is the author of A Primer on Federal and State Parentage Laws: Myths and Realities (American Bar Association) (forthcoming 2016). His article “Choosing Among Imprecise American State Parentage Laws” will be published in Volume 76 of Louisiana Law Review. His most recent law review articles on maternity, paternity, and adoption laws include “Troxel Revisited: A New Approach to Third Party Childcare” in volume 18 of Richmond Journal of Law and the Public Interest, “ICWA’s Pre-Existing Custody Requirement: A Flexible Approach to Better Protect the Interests of Indian Fathers, Tribes, and Children” in volume 35 of Children’s Legal Rights Journal of Loyola University Chicago School of Law (written with Amanda Beveroth), “Formalities for Informal Adoptions” in volume 43 of Capital University Law Review (forthcoming 2015), and “Dangers in De Facto Parenthood” in volume 37 of University of Arkansas at Little Rock Law Review.

Professor Mark Strasser Professor Mark Strasser is Trustees Professor of

Law at Capital University Law School, where he teaches Constitutional Law, Family Law, and Sexual Diversity and Law. His recent Law Review Articles include “Interstate Recognition of Adoptions: On Jurisdiction, Full Faith and Credit, and Potential, Future Difficulties,” in volume 1809 of Brigham Young University Law Review, “Deliberate Indiffer-ence, Professional Judgment, and the Constitution: On Liberty Interests in the Child Placement

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Context,” in volume 15 of Duke Journal of Gender, Law, and Policy,” and “The Often Illusory Protections of ‘Biology Plus:’ On the Supreme Court’s Parental Rights Jurisprudence,” in volume 13 of Texas Journal on Civil Liberties and Civil Rights. He is also the author of Questions and Answers: Family Law (LexisNexis, 2003).

Professor Sean Williams Professor Sean Williams teaches Family Law and

Psychology and Law at the University of Texas School of Law. His research focuses on decision making dynamics in areas such as marriage markets and parental investments in child safety. One of his recent law review articles is “Statistical Children” in volume 30 of Yale Journal on Regulation. It discusses the implications of a commonly observed phenomenon of parents—both mothers and fathers—valuing their children’s safety more than their own. Prior to his legal career, he analyzed large national datasets to uncover trends in risky adolescent behaviors, which included teen sex and pregnancy. He wrote several reports for the Urban Institute on these topics, including “Teen Risk-Taking: A statistical Portrait” in 2000 and “Involving Males in Preventing Teen Pregnancy” in 1997.

Professor Zipporah Wiseman Professor Zipporah B. Wiseman is Thos. H. Law

Centennial Professor at the University of Texas School of Law. She is also a Professor in The University of Texas Center for Women’s and Gender Studies. She is an expert in many fields, one of which is Feminist Legal Theory. She is co-editor of Representing Women: Law, Literature and Feminism (Duke University Press, 1997). She has published in

4a

journals such as American University Journal of Gender, Social Policy & the Law, and Texas Journal of Women and the Law. During her distinguished career as an academic, which included a fellowship at the Mary Ingraham Bunting Institute of Radcliffe College at Harvard, she has also practiced public interest law.