Legitimate Families and Equal Protection

Abstract

This article questions whether and why it should be unconstitutional to treat legitimate and illegitimate children differently. It argues that illegitimacy doctrine is rooted in a biological essentialism completely at odds with contemporary efforts to expand legal recognition of non-traditional parenting practices including same-sex parenting, single parenthood by choice, surrogacy and sperm donation. The routine invocation of illegitimacy doctrine by advocates purporting to help non-traditional families is thus at best ironic and at worst dangerous. Analysis of the legitimacy cases reveals that liberal justices, in trying to dismantle marriage – a legal construct – as the arbiter of legitimate parenthood, presumed that a biological construct – genetics – was a superior arbiter. They either did not realize or did not care that the biological determinism driving the impulse to protect illegitimate children could undermine a more progressive family law doctrine. Validating non-traditional family structures requires an embrace of law, not blood, as the arbiter of parenthood and thus requires a very tempered reading of the legitimacy cases, one which mandates that the state be consistent in how it determines parenthood, but not one that mandates the state to recognize genetic parenthood. The power to define parenthood, that the conservative justices felt comfortable leaving to the state, is best kept with the state, so that the law is free to break free from heteronormative family forms.

Keywords: family, family law, legitimate children, illegitimate children, illegitimacy doctrine, parenting, parenthood, same-sex marriage, biological determinism

JEL Classification: K10, K19, K30, K39