The Anglo-American law of illegitimacy derives from two interrelated purposes of our institutional progenitors. First, imposing the legal disabilities of illegitimacy on a child was seen as a punishment of the parents for their sin. More importantly, the law of legitimacy supported a system of male control over economic resources. The chief effect of the principle of bastardy-as-punishment was to disable illegitimate children from making claims against their deceased fathers' estates. Similarly, formal marriage was the only basis for a woman's claim to inherit from the man who fathered her children. Thus the punishment was reserved for unmarried women and their children. Unmarried fathers, far from being punished, were strengthened in their power to control the transmission of wealth and status. As the Supreme Court began to recognize in two 1968 decisions, these themes are modern as well as medieval.
The cases were LEVY V. LOUISIANA and Glona v. American Guarantee & Liability Insurance Co. On EQUAL PROTECTION grounds, the Court invalidated provisions of Louisiana's wrongful death statute that allowed damages to a surviving child for the death of a parent, and vice versa, only in cases of legitimate parentage. From that time forward, most of the Court's decisions on illegitimacy have dealt with laws regulating inheritance by illegitimate children
(especially from their fathers), and laws restricting the right to death damages or benefits in cases of illegitimacy. Both in their results and in their doctrinal explanations, these decisions have pursued a crooked path.
Much of the early doctrinal uncertainty surrounded the question of the appropriate STANDARD OF REVIEW. Levy and Glona purported to apply the RATIONAL BASIS standard, but in fact they represented a more demanding judicial scrutiny. There were good reasons for categorizing illegitimacy as a SUSPECT CLASSIFICATION that would demand STRICT SCRUTINY of the state's asserted justifications. As the Court has said more than once, it is "illogical and unjust" to burden innocent children because their parents have not married. The status of illegitimacy is out of the child's control. Illegitimates have suffered historic disadvantage. The status has been the centuries-old source of stigma; such legislative classifications are apt to be the result of habit, prejudice, and stereotype rather than serious attention to public needs. After a series of...