ABSTRACT
The Supreme Court has repeatedly upheld distinctions between unwed mothers and unwed fathers on the basis of sex. Unwed women are recognized as mothers automatically upon birth, while unwed men must undertake a series of affirmative steps before being recognized as fathers. One of the central rationales for this differential treatment is the Court’s concern with problems of proof and potential for fraud that plague paternity, but not maternity, determinations. Legal scholarship has been rightly critical of these enduring sex-based distinctions, but it has largely ignored the role that fraud plays in these cases and in the broader regulation of nonmarriage. That is the task of this Article.
This Article engages in a close reading of the Supreme Court’s use of fraud across a range of opinions – —from addressing state law rules setting out property rights at death to federal laws dictating the transmission of citizenship at birth. The presence of fraud in the Court’s reasoning is significant, but the way it functions is neither obvious nor straightforward. The Court claims to be concerned with ‘paternity fraud’, which takes place when there is no biological connection between alleged father and child. Yet not a single decision involves a missing genetic link, and the Court’s accepted response to the fraud routinely fails to require proof of one. This Article argues that the concern articulated in the language of paternity is, in fact, a concern over the lack of marriage between the father and mother. As such, what the Court presents as an objective rationale based on biology is, in fact, a subjective and value-laden determination about what kinds of relationships the law should recognize.
Exposing the work of fraud matters. At a minimum, it shows that the purported governmental interest in fraud prevention is not legitimate and should no longer count as an uncontroversial reason to support the constitutionality of distinguishing between men and women in their roles as fathers and mothers. Paying attention to how fraud functions demonstrates that such distinctions are based on the legacy of contestable legal rules rather than, as the Court claims, any inherent biological difference. More broadly, this Article exposes how appeals to fraud transform what are disputable normative judgments into empirical-sounding evidentiary concerns. Fraud, however, is anything but neutral. It perpetuates a gendered state of affairs that casts women as mothers always and men as fathers only within marriage. It also functions in racist ways and has long been leveled against non-white families. With this critique of fraud in hand, we can better evaluate how fraud is regularly raised in the regulation of nonmarriage, where it works to limit access to material goods in both gendered and race-salient ways.
Antognini, Albertina, Fraudulent Families (December 24, 2024), Arizona Legal Studies Discussion Paper No 24-31.
Leave a Reply