Legitimate Families and Equal Protection

INTRODUCTIONWhy is it unconstitutional for the law to treat legitimate and illegitimate children differently? This Article argues that usually it is not, but in recent federal same-sex marriage litigation, amici briefs repeatedly argued that legitimacy doctrine requires courts to use heightened scrutiny in evaluating marriage laws because such laws can render children illegitimate.1The invocation of legitimacy doctrine in support of same-sex marriage is deeply ironic. The amici seem to suggest that what makes a legitimacy classification problematic for Fourteenth Amendment purposes is that it treats the children of married parents differently than the children of unmarried parents.2 But why should the state treat the children of married and unmarried parents alike? Because both groups are children with no control over "the circumstances of their birth"?3 That cannot be right. Almost all children's entitlements in this country, from child support to intestacy rights to social security payments, are based on who their parents are and what their parents do, or did, or have never done. Children's life circumstances and legal entitlements are based on the fortuity of their parents' earned or inherited wealth. Therefore the problem with legitimacy doctrine cannot be that it treats some children differently from others. It must be instead that it draws distinctions between children who for some reason should be treated alike.When finding in favor of illegitimate children, the U.S. Supreme Court's legitimacy cases assume that legitimate and illegitimate children are "alike" and thus entitled to comparable treatment because they share a genetic source. Hence, the irony: to rely on a doctrine that posits distinctions between the genetic offspring of the same "parent" as invidious is to reify the natural, biological, and necessarily heterosexual family. It is, to para-phrase the Massachusetts Supreme Judicial Court in 2003's Goodridge v. Department of Public Health, to "single[] out the one unbridgeable difference between same-sex and opposite-sex couples" and make that the esof sence of parenthood.4 This Article examines these legitimacy cases in order explain why they are dangerous precedent for those concerned about reimagining the heteronormative paradigm for parenthood.It is easy to dismiss the importance of legitimacy doctrine today because it is so simple to use genetic connection to establish a parent-child relationship.5 The problem that seemed to give the U.S. Supreme Court the most pause in the legitimacy cases, difficulty in proving a paternal genetic relationship,6 has now disappeared, as DNA tests are increasingly available and affordable.7 Yet the elimination of proof problems has done nothing other than highlight the core normative questions that the Court never resolved in the legitimacy cases. Genetic science has made questions of legitimate parenthood harder, not easier, because it is so clear to most courts that issues other than genetic connection must be relevant to questions of parenthood.8The liberal Justices who championed the rights of illegitimate children in the legitimacy cases likely thought they needed to dismantle an archaic, moralistic system that linked legitimate parenthood to marriage, but all they knew to replace that system with was a parenthood regime based on genetic connection. The conservative Justices were far more willing to let the state make judgments about who should be considered a parent. This Article argues that the liberals' parenthood regime, rooted in genetics, is more troubling than that of the conservatives, which was based on a purely legal construct.Part I of this Article introduces the major legitimacy cases.9 This takes some time and patience with detail. The detail is necessary, however, in order to avoid the kinds of traps into which the Justices fell when deciding these cases. Part I explains how very sympathetic fact patterns produced a ten-year tennis match of sorts with conservative and liberal Justices batting the ball back and forth in what were usually close decisions. …