The Old Illegitimacy Part II: Facilitating Societal Discrimination
In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts. The harms resulting from the law’s continued distinctions on the basis of birth status are significant. For example, these distinctions impair nonmarital children’s ability to acquire property and wealth. While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.
These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support. It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital. Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.
These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise) to make negative assumptions about unmarried parents and their children. Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children. Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child. Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse. They also expect nonmarital children to underachieve academically, economically, and socially.
Parents are aware of society’s disapproval of nonmarital families. For example, some married women take their husband’s surname to protect their children from assumptions that they are “illegitimate.” Couples who have cohabited for years often get married once they decide to have children, in part, because they do not want their children to be stigmatized as illegitimate. Courts are aware of societal biases against nonmarital children and have upheld doctrines, such as the presumption of legitimacy—the presumption that a child born to a married woman is her husband’s child—partly to protect children from the “stigma of illegitimacy.” Courts have also rejected petitions to open adoption records, partly because doing so would expose children to the “stigma of illegitimacy.” They have also rejected mothers’ petitions to change their child’s surname from that of the absent fathers’ to the mothers’ surname out of concern that people will assume that the child is illegitimate. The Massachusetts Supreme Court recently recognized the “enhanced approval that still attends the status of being a marital child” as a reason, among others, to extend the right to marry to same-sex couples.
The law should eliminate the remaining legal distinctions between marital and nonmarital children. However, societal disapproval of nonmarital families will likely remain so long as lawmakers continue to signal that nonmarital families are undesirable. Lawmakers have devoted significant resources to promote marriage and reduce the rate of nonmarital births or what they refer to as the “illegitimacy ratio.” For example, the Bush administration earmarked $750 million over five years to fund programs that promote marriage and the Obama administration recently funded a national media campaign to publicize the benefits of marriage. The 1996 welfare reform law (the Personal Responsibility and Work Opportunity Reconciliation Act) expressly provides that it aims to promote marriage and reduce nonmarital births and authorized a $100 million annual bonus to be awarded to five states that reduced the number of nonmarital births the most in a given year. West Virginia provided “marriage bonuses” to public assistance recipients who married and other states experimented with a variety of marriage incentives and initiatives.
In addition to these marriage promotion and nonmarital birth reduction efforts, a number of courts have denied same-sex couples the right to marry on the ground that recognizing marriages between couples who cannot procreate naturally might signal that marriage is not “necessary for optimal procreation and child rearing to occur.” These efforts and statements by lawmakers signal that nonmarital families are inherently inferior and may serve to strengthen societal disapproval of these families.
While lawmakers might be persuaded to eliminate the remaining distinctions between marital and nonmarital children—after all, everyone agrees that children should not punished for the actions of their parents—they are unlikely to alter their messages signaling disapproval of nonmarital families. One reason is that lawmakers believe that promoting marriage and decreasing nonmarital births will benefit children and society as a whole. Recent studies, however, show that marriage’s positive effect on children may be almost entirely the result of factors other than marriage itself such as growing up in a family with fewer resources, individuals’ positive attitudes towards marital families, and the fact that couples who choose to marry may be more committed and future-oriented.
Even if we assume that marriage itself benefits children, denigrating nonmarital families is unlikely to lead to a greater number of healthy marriages. When asked why they haven’t married, many unmarried mothers reply that they are waiting until they are financially stable and in a stable relationship. They recognize that a marriage plagued by high conflict and chronic lack of resources does not benefit them or their children and is likely to end in divorce. So rather than encourage expecting couples or parents to marry, regardless of their readiness to marry or the quality of their relationship, shouldn’t the law provide resources and support to all children without expressing disapproval of single parent and cohabitating families?