From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Re: Basis for Roe Decision
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago
Date: Sat, 9 Jan 1993 16:56:08 GMT

In article <1993Jan9.072323.10779@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>In article <1993Jan8.151835.18395@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
>>I'm sorry, I'm unaware of a child support law that distinguishes
>>between men and women, rather than custodial parents and non-
>>custodial parents.
>>
>>If you do know of one, please tell me.  
>
>MCLA, $ 722.711 et seq.
>
>As a matter of fact, Ted, I'm pretty sure there is NO mention of 
>custodianship in the entire Act. Everything is expressed in terms of
>"mother" and "father". Then again, I don't have the entire Act at my
>fingertips; just the particularly odious sections :-(. It's also 
>possible that maybe there's an update to the language in the "pocket
>parts", too, but I'm pretty sure I checked that thoroughly.

I'll take your word that the statute is not gender neutral, and that
there's no place in the rest of the statute that indicates custodianship
rather than mother- and fatherhood.

In that case, the law is probably unconstitutional (unless the courts
read it to indicate custodianship).  And the Supreme Court has fairly
consistently struck such laws down.  Califano v Westcott, 443 US 76
(1979) (striking down law that provided benefits to children of unemployed
fathers, but not unemployed mothers); Orr v Orr, 440 US 268 (1979) 
(striking down law that authorized Alabama's courts to impose alimony
obligations only on men) (a state has no authority to prefer "an
allocation of family responsibilities under which the wife plays a
dependent role"); Cohan v Mohammed, 441 US 380 (1979) (struck down a
New York law that gave unwed mothers, but not unwed fathers, power to
unilaterally block adoption of their children by withholding consent);
Wengler v Druggist's Mutual Ins. Co., 446 US 142 (1980) (striking down
state statute that favoring widows over widowers for workers' compensation
death benefits).

Of course, this is just an untrained opinion, I am not lawyer, this is
not legal advice, etc., etc.

>>As such, there's no
>>sex-discrimination claim, and indeed courts have consistently
>>refused to consider equal protection arguments in this context
>>valid.
>
>You wouldn't happen to have cites for any of those refusals, would you?

Not off the top of my head.  I ran across several such cases when
searching for other equal protection child support cases for a paper
I was writing last September, but because the cases we're discussing
now are not on point for the issue I was researching then, I have no
record of it.  But a legal database search for "child support" and
"equal protection" would be fruitful, I assure you.

>P.S. I just noticed that the language in $ 722.713, Sec. 3 restricts the
>     binding power of agreements or compromises upon the "mother AND child".
>     If a so-called "pre-sex" contract was written in such a way as to only 
>     bind the mother, but NOT the child (which is what I've been arguing for 
>     all along in the misc.legal thread), wouldn't it technically fall 
>     outside the scope of the statute?

I'm skeptical that a court of today would ever find a pre-sex contract
legitimate or legally enforceable.
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637
never shout movie in a crowded firestation
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