LEGITIMIZING ILLEGITIMACY IN CONSTITUTIONAL LAW.

• Author: Murray, Melissa

ABSTRACT

The traditional constitutional law course is a staple of the first-year law school curriculum and a gateway to more advanced public law courses. In constitutional law, students are introduced to a range of topics--separation of powers, judicial review, suspect classifications, and protections for individual rights, among others. But curiously, few constitutional law courses discuss illegitimacy and the constitutional issues that nonmarital birth presents. This is perhaps surprising. After all, nonmarital births have grown increasingly common in the United States. More than forty percent of American children are born outside of marriage, and studies show that illegitimacy is especially pronounced among certain constituencies. Relatedly, many Americans have actively questioned marriage's role in organizing adult intimate life, choosing instead to pursue nonmarital relationships. And even among those who have actively pursued marriage, the question of illegitimacy remains salient. One of the principal arguments lodged in support of expanding civil marriage to include same-sex couples was the fact that same-sex couples' ineligibility for civil marriage exposed their children to the social stigma and legal impediments associated with illegitimacy. As these observations suggest, illegitimacy is a fact of modern family life. Yet it is frequently absent from constitutional law.

This Essay considers why illegitimacy has been sidelined in constitutional law curricula. As it argues, the exclusion of robust discussion of illegitimacy in constitutional law courses is not obvious or inevitable. Illegitimacy has, since the 1960s, been the subject of numerous constitutional challenges, and has, since the 1980s, been regarded as a quasi-suspect classification for equal protection purposes. Moreover, cases discussing the right to marry and abortion--two staples of most constitutional law courses--often explicitly reference illegitimacy (and its attendant penalties) as the likely consequences of restrictions on the right to marry or the right to choose an abortion.

As the Essay argues, illegitimacy's absence may be explained, in part, by casebook content. Some of the most popular constitutional law casebooks make only passing references to constitutional protections for illegitimacy, and some casebooks do not even excerpt leading constitutional law cases on illegitimacy--or if they do, the cases are framed in terms of other constitutional law topics, like gender or parental rights. Another likely issue is "silo-ing"--because illegitimacy may be understood as within family law, constitutional law instructors may bypass coverage of the topic on the assumption that the topic will receive in-depth coverage in other courses. This explanation, however, may ring hollow in light of other topics that are covered in both constitutional law and other parts of the law school curriculum. Instead, this Essay argues that the sidelining of illegitimacy in constitutional law reflects the liminal status of nonmarriage and nonmarital families in law and society more generally.

Recognizing the growing incidence of nonmarriage in life, and the importance of such recognition for law, this Essay makes the case--and offers concrete ideas--for incorporating more robust discussions of illegitimacy into the constitutional law curriculum.

TABLE OF CONTENTS I. ILLEGITIMACY IN LIFE AND LAW II. ILLEGITIMACY AND CONSTITUTIONAL LAW A. Equal Protection 1. Intermediate/Heightened Scrutiny 2. The Nature of Classifications and Categories B. Substantive Due Process 1. The Right to Marry and the Right to Procreate 2. Marriage Equality 3. Parental Rights 4. Race Discrimination III. EXPLAINING ILLEGITIMACY'S OMISSION A. Casebook Content B. The "Settled" Status of Illegitimacy C. Curricular "Silo-ing" D. Subject Marginalization--or Erasure? IV. THE COSTS OF ILLEGITIMACY'S MARGINALIZATION CONCLUSION INTRODUCTION

The traditional constitutional law course is a staple of the first-year law school curriculum and a gateway to more advanced public law courses. Moreover, it is often considered a "prestige" course, highly coveted among faculty and touching on topics that are implicated in the most important events of the day. (1) In constitutional law, students are introduced to a range of issues--separation of powers, judicial review, suspect classifications, and protections for individual rights, among others. But curiously, few constitutional law courses discuss illegitimacy (2) and the constitutional questions that nonmarital birth presents.

Illegitimacy's omission from the constitutional law curriculum is perhaps surprising. Over the last forty years, nonmarital births have grown increasingly common in the United States. (3) Approximately forty percent of American children are born outside of marriage, (4) and studies show that illegitimacy is especially pronounced among certain minority communities. (5)

Relatedly, marriage and the marital family no longer hold a monopoly on organizing adult intimate life. Many Americans are foregoing marriage in favor of nonmarital relationships. (6) But even among those who have actively pursued marriage, the question of illegitimacy remains salient. As the debate over same-sex marriage reached a fever pitch, one of the principal arguments lodged in support of legalizing same-sex marriage focused on illegitimacy. (7) Specifically, LGBT rights advocates argued that civil marriage should be expanded to spare the children of gay couples the social stigma and legal impediments associated with illegitimacy. (8) Indeed, the Supreme Court's decision legalizing same-sex marriage in 2015 emphasized that expanding civil marriage to include same-sex couples was necessary to prevent the children of gay parents from "suffering] the significant material costs of being raised by unmarried parents [and being] relegated through no fault of their own to a more difficult and uncertain family life." (9)

This is all to say that illegitimacy is a fact of modern life and law. Yet it is frequently absent from the constitutional law curriculum. Despite differences in law schools and law school faculty, there is a surprising uniformity to the constitutional law curriculum. Courses may vary in credit hours, but most constitutional law courses cover the same core content--justiciability doctrines, separation of powers, presidential power, the commerce power, substantive due process, and equal protection. To be sure, for other topics, there is more variation. Depending on the number of credit hours and the instructors' proclivities and expertise, some constitutional law courses might cover topics like incorporation, the Dormant Commerce Clause, or an introduction to the First Amendment. But critically, in almost all of the constitutional law syllabi that I solicited, these core topics were covered and one topic was notably absent--illegitimacy.

This Essay considers this puzzling omission and asks why illegitimacy has been sidelined in constitutional law curricula. As it argues, the exclusion of robust discussion of illegitimacy in constitutional law courses is neither obvious nor inevitable. Illegitimacy has, since the 1960s, been the subject of numerous constitutional challenges and has; since the 1980s, been regarded as a quasi-suspect classification for purposes of equal protection doctrine. Moreover, cases discussing the right to marry and abortion--two stalwarts of the constitutional law curriculum--often explicitly reference the penalties associated with illegitimacy in their efforts to identify the implications of impositions on the right to marry or the right to choose an abortion or use contraception.

As this Essay argues, illegitimacy's absence in constitutional law may be explained, in part, by the topics covered in casebooks or the view that the topic is likely to be covered in other law school courses. But these explanations are not entirely satisfying. Instead, as this Essay argues, the sidelining of illegitimacy in constitutional law may also be explained by the liminal status of nonmarriage and nonmarital families in law and society more generally. Put differently, the topics covered in constitutional law reflect, to some degree, the weight and value that the law--and society--places on those topics. On this account, the fact that illegitimacy is clearly within the domain of modern constitutional law--but is often absent from the content of constitutional law classes--may reflect our collective unease and discomfort with the prospect of valuing and venerating life outside of marriage. To be clear, this contention is not meant to signal causality, nor does it mean to suggest that law professors and the legal academy are directly responsible for the marginalization of illegitimacy and non-marriage in our society. (10) Instead, the argument proceeds on the view that legal education can be a site--and indeed, a medium--for reproducing and re-entrenching, however inadvertently, various forms of inequality. (11)

This Essay proceeds in five parts. Part I considers illegitimacy, its increasing frequency in modern family life, and its relationship to constitutional law. As it explains, illegitimacy has become a fact of modern family life. Moreover, the legal impediments that have been associated with nonmarital birth have, in the past seventy years, been addressed in a series of constitutional law challenges at the Supreme Court. However, even as illegitimacy challenges have been a vibrant part of modern constitutional law, the topic is often absent in the constitutional law curriculum. As Part II argues, this omission is neither natural nor inevitable. To underscore this point, this Part considers the many places in the constitutional law curriculum where discussions of illegitimacy could be included but are not. Part III considers possible explanations for illegitimacy's curricular omission. As it concludes, while there are many...