The Old Illegitimacy Part II: Facilitating Societal Discrimination
posted by Solangel Maldonado
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?
March 15, 2011 at 10:27 pm
Posted in: Constitutional Law, Estates and Trusts, Family Law, Immigration
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Responses (3)
TJ - March 15, 2011 at 11:57 pm
Your last paragraph starts with an assumption, and then immediately contradicts it. You start by assuming that “marriage itself benefits children.” You then contradict it by arguing that high conflict marriages do not benefit children. But that is just another way of stating the argument that people who marry are a self-selected group, who are inherently more committed and less prone to conflict and thus better for children and would still have all those advantages (and, implicitly, to the same extent) even if they weren’t married. Which is basically an argument against the assumption that marriage itself benefits children to any degree at all.
Jimbino - March 16, 2011 at 11:32 am
This post is unbearably pro-natalist. Of course marriage benefits children, since more than 1000 benefits are conferred by our gummint on married people that are denied their single counterparts, whether gay or not, and those unjust benefits help their children as well.
Income tax rates, tax-free employer-provided health insurance, immigration preferences, and even Medicaid rules unjustly favor the offspring of the married.
Some of the injustice has been mitigated by recent rules treating civil unions more like marriage, but these just add to the unfair burden that singles and non-breeders carry in supporting the children of others.
Rhadamanthus - March 17, 2011 at 12:55 pm
You seem to assume that all children of married parents come into substantial inheritances. That’s unlikely– around 3/4 of whites in America (and 19/20 blacks) inherit almost nothing. (Most of those who do inherit something get little– the large numbers in the source come from averaging a large number of small estates with a few gargantuan Bill-Gatesian estates). Changing intestate-succession rules won’t produce any more wealth and will give vanishingly few “non-marital” children access to inheritances from rich fathers (hardly any “non-marital” children have rich fathers, or mothers).
You also seem to assume morality invariably follows the law, instead of the other way around. While many people probably acquire their moral notions in that way, it is unlikely that the Mike Huckabees of this world will change their notions of morality just because you abolish the relevant portions of the civil law. Worse, since “non-marital” childbearing is a bad idea (vide infra), if your legal changes were to persuade people “non-marital” childbearing was “morally right,” that would be counter-productive for society!
As a strict matter of fact, on average unmarried mothers are sexually irresponsible and their children are burdens on the public purse! Also, “non-marital” children (most likely because they inherit so many characteristics from their parents) do “underachieve” academically, economically, and socially! “Stigmatizing” them probably won’t correct that, but if the prospect of caring for “stigmatized” children dissuaded potential parents from producing them, that would be a good thing.
You seem to have misstated the law in your previous post (please see my second comment there, showing either your source (Witte) on the Common Law was wrong or you perhaps misread him), and your remarks in this post seem ill-informed.
Once we leave aside your errors or exaggerations (e.g., that giving “non-marital” children rights to inherit by operation of law will supply them with down-payments to buy houses), your concerns seem rather thin. Changing the rules for “college support” will have little effect, and changing the rules for acquisition of citizenship will simply encourage immigration fraud!
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