Bastards! . . .. And the Welfare Plantation

1. INTRODUCTIONThe legitimacy status of children has been a deterrent for extramarital liaisons,* 1 has guaranteed the social reputation of the father,2 and has facilitated intergenerational transfers of wealth.3 Historically, illegitimacy status has assisted in gender subordination and control over female sexuality and reproduction; it has made social class standing all but pre-determined at birth; it has contributed to the maintenance of racial stratification. Indeed, illegitimate is an appropriate description for the effects of this legally and socially imposed status upon children.While there are a variety of ways in which scholars tackle the myriad legal and social issues that inhere from illegitimacy status,4 scholars have recently focused on the effects of illegitimacy status on the children of LGBT couples, including a full symposium on the "new" illegitimacy in LGBT families.5 From this perspective, one might characterize this Article as focused on the "old" illegitimacy, noting the origins of the modem form in the United States in American slavery 6 Given the racial imbalance of children who are in foster care or who are seeking permanent adoption,' and the nature of the issues that confront these children, identification of illegitimacy's origins from this standpoint is instructive.Part II of this Article discusses the relationship between the social devices used to maintain slavery and the laws determining illegitimacy status. Part III discusses illegitimacy's role in regulating sex and its racespecific counterpart of miscegenation. Part IV makes comparisons to legislation designed to punish unsanctioned relationships and delineate means for the care of illegitimate children, to modem-day welfare and its implications. Specifically, Part IV suggests particular moves in the evolution from legal slavery contributing to the modem form of welfare. Part V examines the role of marriage and of the marital presumption of paternity in creating illegitimacy status as well as reinforcement of stigma associated with Blackness. Part V goes on to discuss how the current welfare system imposes burdens on fathers, if so defined, while often creating barriers to strong relationships for those in poverty, especially men of color. Finally, Part VI of this Article suggests that any future reform efforts should be crafted with an awareness of racial history, both in avoiding additional burdens imposed on communities of color and those in poverty, as well as in finding realistic solutions to build strong community.II. RACE AND "THE ODIUM OF ILLEGITIMACY"--A FINANCIAL PENALTY FOR BLACKNESSIllegitimacy once was, and perhaps still is, a means of regulating race through anti-miscegenation law and sentiment. A case in the midst of Jim Crow segregation, Wolfe v. Georgia Railway, demonstrates the variables comprising its origins:[A] pure black man cannot be mistaken for a white man, and the fact that intermarriage between the races has been continuously forbidden in this state, to charge a white man, even though of dark skin, with being a colored man, or a colored man, even though of fair skin, with being a white man, is to impute the odium of illegitimacy.9For many years, anti-miscegenation legislation prevented interracial marriage, or relations of any kind.10 A child of mixed race was, by definition, illegitimate. This included any children of a marriage annulled on grounds of miscegenation.* 11 Further, since Blackness was understood and defined as any part Black,12 virtually all individuals of even remote, but known,13 Black heritage were deemed Black and, concomitantly, illegitimate. Yet, miscegenation was just one element in making Blackness synonymous with illegitimacy. No marriage by any slave was legally enforceable.14 Even those "marriages" that slave owners encouraged to promote stability on the plantation were subject to breakup by sale.15 "[I]n most states that permitted bondage[] marriage conferred no legally enforceable protections upon slaves. …