motherhood and sexism in Turner v. Rogers

The parties’ briefs in the currently pending U.S. Supreme Court case Turner v. Rogers contrast sharply in motherhood statements and fatherhood statements.  The petitioner’s brief includes only one instance of a word beginning with mother, and only two instances of a word beginning with father.  The respondents’ brief, in contrast, includes twenty-two instances of words beginning with mother, and twenty-seven instances of words beginning with father.[*]  What explains this stark contrast?

The parties’ respective presentations of the questions before the U.S. Supreme Court point to reasons for the contrasting use of motherhood and fatherhood statements.  The petitioner declares the substantial question in Turner v. Rogers to be this:

Whether the Supreme Court of South Carolina erred in holding—in conflict with twenty-two federal courts of appeals and state courts of last resort—that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.

That question is obviously tendentiously phrased with respect to the relevant law.  Advocates commonly present tendentious questions to highly intelligent judges.  Highly intelligent judges, like any other living person, feel sentiment and have emotions that cannot be separated biologically from logic and reason.  Hence advocates seek to prompt favorable sentiments and emotions.

The respondents pursued a much different sentimental strategy.  The respondents declare the substantial question in Turner v. Rogers to be this:

In a mother’s pro se action to enforce a child-support order, does the father have a categorical Sixth or Fourteenth Amendment right to appointed counsel before he can be confined for a limited time for civil contempt?

The respondents present the question as a battle between mother and father.   The respondents’ strategy is reasonable because sentiment favors motherhood.

The U.S. financial child-support system formally serves custodial parents, both mothers and fathers.  The respondents’ sentimental strategy reveals the underlying reality.  The respondents’ brief describes in a heading one aspect of the financial child-support system:

Mothers’, Children’s, and the Government’s Interests in Fair, Effective Child-Support Enforcement Would Be Disserved by Appointing Counsel for All Nonpaying Fathers

The child-support system in reality serves narrow financial interests of mothers, children, and the government.  It shows little regard for men’s interests.  Even just with respect to men’s obvious interest in not being incarcerated, the child-support system can’t even be bothered to collect systematic, accurate statistics on the number of persons (mainly men) it keeps in jails or prisons.  The respondents’ brief pairs with the above heading a heading about fathers’ interests, alone and narrowly confined:

Fathers’ Interests Are Adequately Protected by Straightforward Family Court Procedures

Sex inequalities in child custody and child support are about an order of magnitude larger than widely discussed sex inequalities in the labor force.   Straightforward family court procedures pass as adequate only because the former sex inequalities have generated relatively little public discussion and policy concern.

The respondents’ brief exploits to an extraordinary extent the child-support system’s firmly rooted, stereotype-based beliefs about the allocation of family responsibilities.  For example, the respondents’ brief declares:

A mother has a “commanding” interest in the custody and care of her child. Lassiter, 452 U.S. at 27.

Here’s what the Supreme Court’s decision in Lassiter states at the cited point:

A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.

The respondents’ brief rephrased the Court’s statement in Lassiter to make it into a motherhood statement.  The respondents’ citation also excised the context of terminating a person’s parental status.  Incarcerating a person in effect terminates a person’s acting parental status for the period of incarceration.  When the parent is a father, the commanding interest in parental status isn’t even served with legal counsel.  That shows the power of motherhood statements.

mom, we love you!

Related:

[*] These counts exclude instances in the appendices to the respondents’ brief.   The respondents’ motherhood and fatherhood totals include two and seven instances, respectively, where the relevant word is in the title of a cited work or in a quotation from a cited work. One instance of mother and no instance of father is similarly situated in the petitioner’s brief.  Because the brief writer chooses articles to cite and text to quote, the total number best reflects use of motherhood and fatherhood statements.  Under either accounting, the respondents’ brief includes an order of magnitude more motherhood and fatherhood statements than does the petitioner’s brief.

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