ILLEGITIMACY

The Anglo-American law of illegitimacy derives from two interrelated purposes of our institutional progenitors. First, imposing the legal disabilities of illegitimacy on a child was seen as a punishment of the parents for their sin. More importantly, the law of legitimacy supported a system of male control over economic resources. The chief effect of the principle of bastardy-as-punishment was to disable illegitimate children from making claims against their deceased fathers' estates. Similarly, formal marriage was the only basis for a woman's claim to inherit from the man who fathered her children. Thus the punishment was reserved for unmarried women and their children. Unmarried fathers, far from being punished, were strengthened in their power to control the transmission of wealth and status. As the Supreme Court began to recognize in two 1968 decisions, these themes are modern as well as medieval.

The cases were levy v. louisiana and Glona v. American Guarantee & Liability Insurance Co. On equal protection grounds, the Court invalidated provisions of Louisiana's wrongful death statute that allowed damages to a surviving child for the death of a parent, and vice versa, only in cases of legitimate parentage. From that time forward, most of the Court's decisions on illegitimacy have dealt with laws regulating inheritance by illegitimate children (especially from their fathers), and laws restricting the right to death damages or benefits in cases of illegitimacy. Both in their results and in their doctrinal explanations, these decisions have pursued a crooked path.

Much of the early doctrinal uncertainty surrounded the question of the appropriate standard of review. Levy and Glona purported to apply the rational basis standard, but in fact they represented a more demanding judicial scrutiny. There were good reasons for categorizing illegitimacy as a suspect classification that would demand strict scrutiny of the state's asserted justifications. As the Court has said more than once, it is "illogical and unjust" to burden innocent children because their parents have not married. The status of illegitimacy is out of the child's control. Illegitimates have suffered historic disadvantage. The status has been the centuries-old source of stigma; such legislative classifications are apt to be the result of habit, prejudice, and stereotype rather than serious attention to public needs. After a series of cases characterized by doctrinal instability, in Mathews v. Lucas (1976) the Court rejected the assimilation of illegitimacy to the suspect classifications category. The Court did remark, however, that its standard of review in such cases was "not a toothless one."

Part of the reason for the tortuous doctrinal path from Levy and Glona to Mathews v. Lucas was that the Justices were closely divided on the general issue of the Court's approach to illegitimacy as a legislative classification; in these circumstances, trifling factual distinctions tended to affect the decisions of cases. Even after Mathews v. Lucas this pattern continued, as trimble v. gordon (1977) and lalli v. lalli (1978) illustrate—although the Court has identified a verbal formula for its standard of review: An illegitimacy classification must be "substantially related to a permissible state interest." As Justice lewis f. powell said for a plurality in Lalli, the Court's concern for the plight of illegitimates must be measured against a state's interest in "the just and orderly disposition of property at death." A seventeenth century probate lawyer would not be surprised to learn that the justice and order emerging from Lalli offered protection for a father's estate against the claims of illegitimate children, even though paternity had been established beyond question.

The Supreme Court has invoked its intermediate standard of review to invalidate state laws imposing severe time restrictions on suits to establish paternity and compel fathers to support children born outside marriage. But if Lalli validated an ancient tradition of domination through control over the transmission of wealth and status, Parham v. Hughes (1978), just four months later, validated the tradition of the illegitimacy relation as punishment for sin. An illegitimate child and his mother were killed in an automobile accident. State law would have allowed only the mother to sue for wrongful death damages, if she had survived. Given the mother's death, the father would have been entitled to bring the suit if he had formally legitimated the child. Although he had not undertaken formal legitimation proceedings, the father had signed the child's birth certificate, and had supported the child and visited him regularly; the child had taken the father's name. The Court upheld the state's denial of a right to sue, 6–3.

The state court in Parham had said the law was a means of "promoting a legitimate family unit" and "setting a standard of morality." The Parham dissenters, focusing on sex discrimination, faulted the state for doing its promoting and standard-setting selectively, along lines defined by gender. The decision also intruded seriously on the freedom of intimate association. The father-son relationship was complete in every sense but the formal one. Four members of the majority said it was all right, nevertheless, for the state to "express its 'condemnation of irresponsible liaisons beyond the bounds of marriage"' by denying the father the right to damages for the death of his son. In other words, the father should be ashamed of himself.

In Glona, the Court had rejected precisely this sort of reasoning. The fact that the legislature was "dealing with sin," the Court said, could not justify so arbitrary a discrimination as the denial of wrongful death damages. Glona had involved the claim of a mother, and mothers of illegitimate children have been the historic victims of a system of illegitimacy in a way that fathers have not. But Parham involved a man who not only sired a child but was a father to him. What had been protected in Glona was not merely the damages claim of a mother, but the status of the intimate relationship between a mother and her son. The Parham law's arbitrariness lay in its assumption that significant incidents of the parent-child relationship should be denied because of the absence of a formal marriage. Seen in this light, the law's discrimination demands some substantial justification for its invasion of the freedom of intimate association. Glona teaches that the required justification is not to be found in the state's wish to punish "sin." The Supreme Court plainly is not yet prepared to hold that the status of illegitimacy is itself constitutionally defective. When that day arrives, however, Glona will serve as a precedent.

Kenneth L. Karst
(1986)

(see also: Nonmarital Children.)

Bibliography

Perry, Michael J. 1979 Modern Equal Protection: A Conceptualization and Reappraisal. Columbia Law Review 79:1023–1084.

Wallach, Aleta and Tenoso, Patricia 1974 A Vindication of the Rights of Unmarried Mothers and Their Children: An Analysis of the Institution of Illegitimacy, Equal Protection, and the Uniform Parentage Act. University of Kansas Law Review 23:23–90.