INTRODUCTION

Joan Stanley died of cancer in 1968, leaving behind her unmarried partner of eighteen years, Peter Stanley, and their two young children, Kimberly, one and a half years old, and Peter Jr., two and a half years old. In Illinois, a legal “parent” included both married and unmarried mothers but only married fathers. Therefore, the State of Illinois instituted a court proceeding to make the children wards of the state because they lacked parents.

The hearing that followed was brief. The evidence showed that Peter and Joan Stanley were not married, that Peter Stanley was the father of the children and had lived with and supported them, and that at some point after Joan Stanley's death, Peter Stanley had arranged for the toddlers to live with his friends, the Nesses. The state's attorney did not allege that Peter Stanley had neglected the children. The judge concluded that the children lacked parents as a matter of law, made them wards of the state, and appointed the Nesses as guardians.

Stanley appealed to the Illinois Supreme Court, where he again lost. He then obtained review in the U.S. Supreme Court, where he argued that declaring his children to be wards of the state without a showing of his parental unfitness violated his right to due process under the Fourteenth Amendment. He prevailed. The Court determined that Stanley had a substantial interest in “the children he had sired and raised.” The Court had never before made such a statement about a nonmarital father. It ruled that as a matter of due process, all parents, including Peter Stanley, were constitutionally entitled to a hearing on fitness before the state could assume custody of their children. The Court rejected the state's argument that unmarried fathers were so seldom fit that it was administratively inefficient to provide them all hearings. It reasoned that “the Constitution recognizes higher values than speed and efficiency.”

LARGER CONTEXT

For hundreds of years, a set of laws had punished sex outside of marriage, imposed catastrophic consequences for bearing children outside of marriage, assumed and fostered “separate spheres” for men and women, and imposed gendered requirements within marriage. By the end of the 1970s, those laws had changed, with the U.S. Supreme Court playing a major role in the legal transformation.