What's So New about the New Illegitimacy

INTRODUCTIONEight months pregnant with my first child, I was recounting to a friend, another African American woman, the flurry of preparations leading up to the blessed event. She interrupted my catalogue of necessary baby-related purchases to ask a burning question: "And you're now going to take [your husband's] name, right?" In truth, her question was not a question at all, but rather a statement so self-evidently correct (in her view) that it was almost not worth asking. "No, I'm going to continue to use my own name professionally and socially," I responded. She was silent for a moment, weighing her words carefully: "Don't you worry that when you take the baby to school, or to the airport, or wherever, people are going to look at you, see that you and the baby have different surnames and assume you're not married? That you had a child out of wedlock? That you're a stereotype?"In the years since I had that conversation, I had not given it much thought. After all, though I had made the (perhaps) unorthodox choice of keeping my name, I was married and my child had been born in wedlock. More importantly, after a series of critical Supreme Court decisions in the 1960s and 1970s, illegitimacy appeared to have lost some of its salience as a legal category.But, as this symposium contends, illegitimacy is making a comeback. In June 2011, the Family Leader, a Christian conservative group, exhorted presidential hopefuls to sign "The Marriage Vow-a Declaration of Dependence upon Marriage and Family."1 In its zeal to strengthen American families, "The Marriage Vow" emphasized the importance of the traditional nuclear family and marital fidelity, endorsed the Defense of Marriage Act, and disavowed the expansion of civil marriage to same-sex couples. But it also prominently identified the harms of illegitimacy-and more importantly, linked the proliferation of illegitimate births to African American families, racializing this particular threat to the traditional nuclear family.2But social conservatives bent on bolstering the traditional heterosexual marital family have not been the only ones to emphasize illegitimacy and its perceived harms. The issue of illegitimacy has become pervasive in the debate over same-sex marriage, as this symposium notes. Marriage traditionalists argue that marriage was intended to deal with the problem of illegitimacy and irresponsible procreation, and thus, should be restricted to heterosexual couples. Those who favor marriage equality argue that illegitimacy is an injury foisted upon same-sex couples and their families simply because they are ineligible for civil marriage.In this Essay, I consider these developments, and ask two questions: First, what are we to make of them? Do these developments signal a retreat from those earlier Supreme Court cases that dismantled the common law tradition in which non-marital births were legally disadvantaged and deeply stigmatized? Put differently, do they suggest a "new illegitimacy" in which non-marital birth status has been resurrected as a salient legal concept? And second, (regardless of how we answer the first question) what are the consequences of the marriage equality movement's interest in illegitimacy?The Essay proceeds in four parts. Part I takes up the first question: does the marriage equality movement's interest in illegitimacy signal the rise of a "new illegitimacy?" Here, I debunk the inherited legal progress narrative that claims that law abandoned the common law's treatment of illegitimacy and its many legal disadvantages in favor of a more liberal legal regime in which those of illegitimate birth were no longer legally disfavored. In doing so, I review Levy v. Louisiana3 and Glona v. American Guarantee & Liability Insurance Co.,4 the two Supreme Court decisions credited with disrupting the common law tradition disfavoring non-marital births. Though Levy and Glona struck down legal distinctions between marital and non-marital children, I argue that these cases did not render a seachange in our understanding of illegitimacy. …