Illegitimate Children and Military Benefits

• Author: by Major David B Howiett
• Pages: 02

I. INTRODUCTION

This anicie examines the constitutmnahty of mihrar? benefit ita tmes and regulations as they relate to illegitimate children. 4 child IS iegitimate if he or she is born or conceired ~n wedlock, or if the child's mother was married during pregnancy' Throughout history,Z mcieties hare subjected illegitimate (or "nonmantai") children to a variety of disabilities In English common law, the rlle@timate chiid was the child of nobody, or filius nullzus The chiid could not inherit. the parents had no nght to custody and the child could not assert any rights against either parent for support a

Consistent with Enghsh common law. earl? American law considered the illegitimate child LO have no famdy. Reform began in the late nineteenth century, but progressed at different rates in each state.j

Debates continue about the causes of ille~timac: Researchen have proposed phenomena ranging from broken homes and bad neighborhoods to supposed psycholoscal defects of the mothers.6 Researchen have considered and rejected causes as diverse as relative wealth and comparative climate ' In some sense, illegitimacy has no specific cause. only effects Its effects include higher momaiity, lawpr IQ.and

'Judge Adiocale General I Corps Currenflg assigned as Trial 4ttornei. Contract 4ppeals Division U S Arm) Legal Seruees 4genm Former11 assigned BL Chief Legal 4rilifmce Office For! Leonard Uoad. 1888-1888 Trial Counsel. Fort Leonard Uood 1868 1586. Battery Execufne Office? and Battalion 54 4th Inf Dlv (hll 1880-1963. Redebe Platoon Leader 2d Inf Dlv 1570-1980 B A Svracuse Lnlrenit) 1979 J DCornell Lau School. 1566 and LL 11 The Judge Addiocafe General's School 19YOMember of the ban of Neu ibrk and hew Jeney This anicle LB based upon B the313 ivbmitred in parrial rahrfaifmn of the reqoaementr of the 38th Judge Miocate Of flcer Graduate Coune

'J Teichman Illegifrmacv A Philosophical Examination 26 (1482) LSer Ueuferanomy 23 3a0 53 54

h1ILIWRY LAW REVIEIT [Vd 1,3?

psychological pmhlern~.~

Its formal cause F the legal regime that generates the di,tinctian between legitmare and Illegnmate Oiil dren The immediate causes of nonmarital children are aliii~st a,

mullifarmus as human motnes and loves and hatec'"'

\muall> all societies m the norld todai. wlieth~r primirive OI

modrm distinguish between ille@rimare childten and le@tlmdtp rhil dren anti appl] iome disabilitiei or penaltie3 IO the foormrrl" Karci of illegitimate birth var) from mer 70 ',, in Panama and .Jamam II)

less than 14, for Japan. Israel. Egypr and Sthe turn of the centur) Bg lY60. 1968 In the moit recent figure,. (5. 878.4ii-or 23 4'. --liere horn to unmarried \\omen"

Illegitimac~ rate5 among black Amencans hale been higher than the rates among white irneriians imie the earl! nineteenth cem I U T V ~ ~

The discrepanq ha5 been \er> large 117 relent decade\ 111 thr latest figuies 13 71 ' of >\hire births. and bl 21 ' of black birth4 air e Fcholara suggect thii phenomena mal h a e its roots in slaver>

In ~llegmmac> aii 111 man! other arrar. rhe m111tar> irfleitb mcx? t) ai B nhale A recent stod! of Uar? enlirted %omen found that fort)-one percenr of those who became preman1 during a recmt ten month period >%\erenor marrietl.l" Slosr of the single pregnant iiirmen were young and m rhe Imer enlisted ranks?. In the Arm! 811 receiie Basic Alloaanie for Quarter? (RAQI saldy on the caurr-ordered ~upporr tor illegitimate children and 37ERreceive BAQ wlely on the basis of vduntar

19911 ILLEGITIMATE CHILDREN

childrenLd Mort of these soldiers are from the lower enlisted ranks" These figures exclude soldiers who support illegitimate children bur draw BAQ on the basls of another dependent. such as a wife or parent

11. THE SUPREME COURT'S ILLEGITIMACY ANALYSIS

The most sxgmficant changes m American law with respect to 11-legitimacy came about as the result of a series of Supreme Court cases. In over twenty major cases since 1968. the Court has considered claims of unconstitutional discrimination against Illestimate children or their parents Over this period. the Coun developed standards for measuring the legality of laws that differentiate on the basis of iegltlmacy

The Courr first struggled to formulate an appropriate level of review for statutes discriminating on the basis of legitimacy. In da-Ing so. the Court had to conadel the \alidity of various govern men^ tal goals put forward ro justify differentianon between legitimate

'3Flgures are from the United Stales Arm: Finance and Accounting Center Jornt

"Id The figures are as fallow for haiember 1989 Lniform M111~ary

R)

S:~fem-.Arrn: Pmment Statistics Repoic Smemher I989

Rank =of soldiem x i

Of Ealdlers

&io for court ordered x B.W for YOI iupport Of ""tar? Euppnrt ~llegifmate children oi Illegmrnafechildren

b

I4

V" ' I 01 I 0-20 3 4 0-4 1 0 3 1 0-6 11 1 3

Tocal

I

MILITARY LA\V REVIEW [V"1 132

and illegitimate children The Court also gave guidance concerning haw statutes could be drafted to pass constitutional muster, )et still treat people differently on the basis of legitimacy Finally. the dew smns began to define the rights of unwed parenti

1. THE MAJOR ILLEGITIMACY CASES

   In the earliest iiiegitirnacy cases. the Supreme Court struck don" laws that blatantly discriminated against ilieghmte children In lY6B the Court found the operation of the Loumana arongful death statute uncunstitutionai because 11 denied iiiegitimate children the nght to reco~er far the deaths of ther mothers. while it allowed legitimate children to do so 2n In another case. the Court found the same statute unconstitu~ional because It prevented mothers from 5"- ing for the wrongful deaths of their iilegltimate children The Court called the discrimination 'mvidious"z2 and ~rrati0na.l.~~hut did not

   provide an analytical fnmework for eialuation of itatutorg classifica-tions mnxohing Illegitimacy

   In 1971, however, the Court ~nLabzneu VnzenP upheld a statute

   that denied intestate buccess1on to an illegitimate daughter el-en though the father had legally acknowledged her Sotmg the states strong interest in regulating the disposition of propert) at death, the Court denied that "a state can never treat an >llegitmmte child differentiy from legitimate offspring.

   The Court's next iilegltimacy case provided a basic analytical framework. In Weber I. detna Casually and Sulyly Co z5 the Court struck down a workmen's compensation statute that favored legiti mate and acknowledged illegitimate children over unacknoaledged iiiegmmate children The Weber Court announced a dual inquiry for statutes uang iegltimacy classificarions ' Rhat legitimate state ~ n - term does the clareificatmn promoten What fundamental perzonal rights might the classification The majority concluded that the ciassif~catmn mol\ed 'no legitimate state interest' jd

   191 15

   19911 ILLEGITIMATE CHILDREX

   and should be struck downs denying equal protection to Illegitimate children. Thus, if the state does not present a strong enaugh interest. the Court will not reach consideration of the importance of the personal nghti involved

   The following year, the Court issued two per curium opinions on legitimacy. In &mer L' the Court struck down a Texas law that granted legitimate children a judicially enforceable nght to financial suppon from their fathers, but denied this nght to 11-leginmate children In the second case, the Court struck down a statute that had the effect of denying welfare benefits TO illegitimate chlidren.30

   The Supreme Court first applied illegitimacy equal protection anaiysls to a federal statute in Jtrnenez v. Weznberger3' The Court considered the Social Security Act's blanket denial of disability benefits to illegitimate children born after the onset of the insured's disability and concluded that it was a denial of equal protection to those children The Court held that complete exclusion of the class of Ille@timate children was not reasonably related to the goal of avoiding spunous cla~ms.~~

   Two yean later, in 4lathetos L L u ~ a s , ~ ~ the Court ruled against 11- legmmate children applying for Social Security benefits. The Social Security Act's death benefit scheme considered legitimate children and m e r d categories of Illegitimate children to be elxgble, hut denied benefits to illegitimate children not living with or supported by an insured father at the time of his death The statute did not give these children an opportunity to show- independent evidence of their dependencr if they fell outside the favored categories Applying the Weber two-part test, the Court endorsed the governmental goal of avoiding "the burden and expense of specific case by case determination in the large number of cases where dependency LS ab-jectively probable''3s The Court noted that the statute did not dscrumnate between illegitimates and legitimates with nothmg more hut was "carefully tuned to alternative consideratmns"38

   \IILITARY LAW REVIEIV [Vol 112

   In Trimbk i Gbrdon,J7the Couit struck down rhe Illinois mestat?

   Succession law that allowed illegitimate children to mhent on15 from their mothers hhile le@timate children could inherit from both parents. Although the state asserted an interest in the avoidance of spurious claims. the Court found that Its schemr ignored the possibilit) of a middle ground between the extremes of complere ex clusian and case-by-case determination of paternity.''3a Explaininga contrar?. result wnh the tery similarstarUte m La bine the majority noted, ' [I][ 1s apparenr that we have examined the Illinois Ttature more cntIcaI1) than the Court examined the Loulslana statute ~nLa bi ne '

   In the bame year, inFiallo u Bell'" the Court upheld the treatmcnt of iliegitimates in the Immigration and Naturalization Act of 1952 41

   The Act had the effect of excluding the relationship betueen an 11-legitimate child and Its father from the preference normally glren to the parents of children of United States cnmns In upholding the different treatment of iliegitimates. the Court stated thar...