The Old Illegitimacy: Legal Discrimination Against Nonmarital Children
Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26. Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union. Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status. In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).
For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children. They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations. Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.
Discrimination against nonmarital children has decreased significantly in the last 40 years as a result of numerous U.S. Supreme Court decisions striking down laws that discriminate on the basis of birth status. The Uniform Parentage Act and most state statutes now provide that nonmarital children have the same legal rights as marital children. Societal disapproval of nonmarital childbearing has also decreased as nonmarital births have become much more common. The nonmarital birth rate increased from 5% in 1960 to 41% in 2008.
Despite these legal and demographic changes, the law and society continue to discriminate against nonmarital children. For example, nonmarital children must establish paternity before they can inherit from the father’s intestate estate, while marital children are entitled to inherit by virtue of their status as marital children, even (in many states) when there is evidence that they are the progeny of the mother’s extramarital affair. Immigration and citizenship laws also discriminate on the basis of birth status. While a foreign-born marital child of a U.S. citizen father (who meets certain residency requirements) is automatically entitled to U.S. citizenship, a nonmarital child must show that the father agreed (in writing) to support him or her and acknowledged paternity under oath or obtained a filiation order before the child’s eighteenth birthday.
Furthermore, at least one state expressly discriminates against nonmarital children seeking support for college expenses. The Iowa Supreme Court has upheld a statute that authorizes courts to order divorced parents to contribute to their children’s college education but does not authorize courts to order the same from parents of nonmarital children.
In addition to these explicit distinctions between marital and nonmarital children, the law indirectly disadvantages the latter by signaling that nonmarital families are undesirable. In a future post, I will discuss these messages and how they contribute to further stigmatization and disadvantaging of nonmarital children.