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- Title
LEGITIMIZING ILLEGITIMACY IN CONSTITUTIONAL LAW.
- Authors
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.
- Subjects
ILLEGITIMACY; CONSTITUTIONAL law; PUBLIC law; AMERICAN children; MARRIAGE
- Publication
Washington University Law Review, 2022, Vol 99, Issue 6, p2063
- ISSN
2166-7993
- Publication type
Article