Just before Memorial Day I threw up a quick post about a really interesting recent decision from Kentucky. In a close decision the Kentucky Supreme Court ruled that a man genetically related to a child could assert parentage of that child over the objections of the child’s mother and her husband.
I’ve gone back to read the opinion more carefully and it’s quite interesting, so I wanted to give it a little further consideration. (You can go back to the earlier post for some of the context of the opinion.) The majority opinion is by Justice Venters and he makes an interesting point along the way to his conclusion.
He starts by asserting that the stigma around being illegitimate has diminished over the past hundred years or so. This is undoubtedly true and I cannot see this as anything other than a good thing. Afflicting children with the label “bastard” (for more, see Dorothy Allison’s wrenching book, Bastard Out of Carolina) is completely unfair when the children have nothing to do with the circumstances of their conception.
In any event, whether it’s for good or for ill, some would say that this shift towards equal treatment of children regardless of the circumstances of their conception is one of the most important legal developments in US family law in the last half of the twentieth century. (I was a participant in a conference on this topic this past spring and it did make me think quite a lot about this.)
Justice Venter considers what the shift in status of illegitimate children means for the marital presumption. One way to understand what the marital presumption does is to think about illegitimacy. Because of the marital presumption (the presumption that a child born to a married woman is the child of the husband) there are fewer illegitimate children. With the presumption in place, all children born to married women are presumed to be legitimate.
That’s in important justification of the presumption, particularly when illegitimacy is stigmatized. The presumption counters the stigma by removing kids from the stigmatized class. But as the stigma diminishes, the strength of this justification diminishes. Justice Venter concludes that
The stigma of being an ‘illegitimate’ child or the parent of an ‘illegitimate child is, within the greater part of society, gone.
Without the stigma, he finds justification for the marital presumption lacking. (A major portion of the opinion is devoted to statutory interpretation of specific language in the Kentucky Code. I’m going to breeze over that in favor of the broad policy discussions.)
I’m not sure I agree with Justice Venter that the stigma associated with illegitimacy is gone, but it is certainly diminished, and while I hadn’t thought about it quite this way before, that does diminish at least one argument in favor of the marital presumption.
The other thing I find most interesting here is the nature of the opposition to Justice Venter’s view. That’s most readily seen in the local press coverage of the case. The opposition arises from those most committed to the centrality of marriage. Allowing the genetically related man to defeat the united claim of husband and wife diminishes the importance of marriage. What’s important from this point of view is that the husband and wife, whatever their difficulty in the past, now stand united and wish to raise this child within their marital family. Were it enforce, the marital presumption would allow them to do just that. The majority’s opinion, which allows the genetically related man to claim parentage, overrides their wishes.
To reduce this to some rather simplistic political terms, the conservative, traditional marriage view is in opposition to the DNA matters view. I think that’s rather striking and was to me less than obvious before this case got me thinking.
It’s also notable that there’s very little–perhaps no–attention to the perspective of the child or to the realities of the situation that the court is creating. What happens to the people involved in the future? Does the child reside with wife, and hence end up being raised primarily by the husband and wife, with visitation by the legal father, who is hardly likely to be welcomed into the household? Does the marriage fracture as a result of the constant reminder posted by the legal father? \
I don’t say this to suggest that these are the considerations that should have dictated the outcome of the case. But I do wonder and I wonder, too, about whether this sort of wondering should have any bearing on the outcome of the legal inquiry at issue here. Keep in mind that this is the Kentucky Supreme Court, so this rule applies to all cases brought in Kentucky in the future. That means that what is at stake is not just one family but many. This further complicates the prospects of thinking about the specifics of the people involved.