Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children

No one would dispute that for most of U.S. history, nonmarital children suffered significant legal and societal discrimination. Although many individuals believe that the legal disadvantages attached to “illegitimate” status have disappeared in the last forty years, this Article demonstrates that the law continues to discriminate against nonmarital children in a number of areas, including intestate succession, citizenship, and child support. Societal biases against nonmarital children also remain. A majority of Americans believe that the increase in nonmarital births is a significant societal problem and almost 50% believe that unmarried women should not have children.

Some courts are aware of societal biases against nonmarital children and have tried to protect children from the “stigma of illegitimacy.” However, legislative and executive efforts to promote marriage and reduce nonmarital births, along with some courts’ rejection of same-sex marriage on the ground that the state’s goal in creating civil marriage is to discourage nonmarital childbearing, have signaled that nonmarital families are deviant. These messages may serve to strengthen existing societal disapproval of nonmarital families and their children. The state has an interest in supporting family forms that further children’s well-being, such as stable marriages. The state also has a duty to protect children from the economic, social, and psychic harms caused by legal discrimination against nonmarital children.

This Article proposes a model statute that would eliminate remaining legal discrimination against nonmarital children. It also suggests ways lawmakers can alter their messages suggesting that nonmarital families are inherently inferior. The reforms suggested in this Article may reduce remaining societal biases against nonmarital children while allowing the state to support marital and nonmarital children.