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At common law, children born out of wedlock were legally disfavored — filius nullius, the child of no one. But according to an inherited legal progress narrative, all of this changed in 1968 when the U.S. Supreme Court decided Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., ushering in a new era in which the common law tradition that imposed serious disadvantages on non-marital children gave way to a more liberal era where the sins of the parents would not be visited upon the children. More recently however, illegitimacy seems to be 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.” “The Marriage Vow” emphasized the importance of the traditional nuclear family and marital fidelity, disavowed the expansion of civil marriage to same-sex couples, and identified the harms of illegitimacy. But social conservatives are not the only ones to emphasize illegitimacy and its perceived harms. Illegitimacy has become pervasive in the debate over same-sex marriage. Marriage traditionalists argue that marriage was intended to deal with the problem of illegitimacy and irresponsible procreation, while those favoring 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, written for The New Illegitimacy symposium, I consider these developments, and ask two questions: First, what are we to make of them? Do these developments signal the rise of 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? In taking up the first question, 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. I revisit Levy, Glona, and the line of unmarried fathers cases, to argue that constitutional protection for illegitimate families has been contingent on adhering to norms forged in the marital family. Even as law professes to liberalize its treatment of non-marital births, its clear preference for channeling sex and reproduction into the marital family (and those family forms that mimic marital family norms) remains indelible and intact. Bearing in mind that the narrative that charts the “progress” from the common law tradition to Levy and Glona, is less progressive than the conventional wisdom would allow, I turn to the emergence of illegitimacy as a salient concept in the struggle for marriage equality. To do so, I trace the emergence of the illegitimacy as injury argument in marriage equality cases and I explain the underappreciated costs of using illegitimacy to bolster claims for marriage equality.
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