Bastards; Or, the Strangely Unrecognized Relevance of Cases Involving Non-Marital

Children to Lesbian/Gay Civil Rights Claims

William B. Turner, Ph.D., J.D.

drturner@mindspring.com

©2010

American law depends heavily on casuistry, the practice of evaluating similarities

between non-identical cases. This is what adjudication in our hybrid common-law/statutory

system is all about. In each case that goes before a judge, each side will cite those cases that

support its version of the case, and the judge's job is to decide which side's cases most closely

resemble the instant set of facts.

Activists expand on this practice in their public advocacy, asserting that their claim to

injustice is analogous to that of other, previously successful movements. In doing so, they

perform the practice that Jack Balkin and Reva Siegel have identified, that of applying old

principles to old practices in new ways, thereby usually changing both the principles and the

practices.1 Lesbian, gay, bisexual, and transgender (LGBT) civil rights activists plainly pursue

these strategies as part of their movement. They apply old constitutional principles of privacy

and equal protection of the laws to assertedly old (although not as old as their advocates often

claim)2 practices of discrimination against LGBT persons. So advocates of same-sex marriage

1
Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements.S
2
This question implicates the fraught debate over the relationship between same-sex sexual
activity and “homosexual” or lesbian/gay identity. No one disputes that same-sex sexual
activity is a more or less constant feature of human societies. Many scholars have argued,
quite persuasively, I think, that the existence of same-sex sexual activity is not per se
coterminous with “homosexual” or lesbian/gay identity, both of which are products of
modern, Western culture. For a more extended discussion of this point, see my A
Genealogy of Queer Theory (2000). Regardless, ample evidence exists that systematic
discrimination on the basis of an identity characteristic called “sexual orientation” or “sexual
preference” or “sexual identity” or “sexality” is in fact a relatively recent development in the
United States. Justice Anthony Kennedy developed this point in his majority opinion in
are quick to compare prohibitions on the practice to prohibitions on interracial marriage, an old

practice that the United States Supreme Court invalidated using the old principle of equal

protection of the laws. The African American civil rights movement is always an inviting target

for social movement comparisons, given its enormous success in statutes and case law, and its

enormous moral authority.

One area of constitutional law that lesbian/gay rights activists have mostly failed to

explore in seeking analogies to buttress their legal claims is cases involving non-marital

children.3 The parallels between cases of discrimination against non-marital children and cases

of discrimination against lesbians and gay men are striking, and very encouraging from the

LGBT rights perspective. The United States Supreme Court developed over the course of some

twenty years a highly consistent doctrinal position according to which discrimination against

non-marital children for the sole purpose of expressing the community’s moral condemnation

violates the equal protection clause of the Fourteenth Amendment for essentially the same

reasons that discrimination based on sexual orientation does so. It places legal burdens on

individuals without regard to individual responsibility or culpability, punishing them for their

status, not for their conduct. Such discrimination against non-marital children is constitutionally

permissible only where the state can show some administrative necessity, usually in the

disposition of decedents’ estates. No such administrative necessity exists with respect to lesbians

Lawrence v. Texas, 537 U.S. 558 (2003).

3
I use this term rather than “bastard,” which I would advocate recuperation of as lesbians
and gay men have recuperated “queer” for their own uses, but not fitting the category, I do
not see myself as qualified to address the issue. I also refuse to use the term, “illegitimate,”
except in quotations, because I do not believe that any child can be illegitimate. We as a
society have a responsibility to care for all of the children who are here, regardless of how
they got here. Further, as we will see, discrimination against non-marital children ultimately
serves no purpose but to allow men to escape the consequences of their sexual
irresponsibility.
and gay men, thereby invalidating all statutes that discriminate against lesbians and gay men as a

simple matter of equal protection.

Thus, these cases provide solid doctrinal ammunition against Antonin Scalia’s claim that

legislation discriminating against lesbians and gay men for the sole purpose of expressing the

community’s moral standards is constitutionally acceptable. One reason to examine these cases

is that, on the basis of the public debates over lesbian/gay civil rights claims, everyone – Justices

and activists alike – seems to have forgotten all about them.

Scalia implicitly took this position – that the majority’s moral preferences simpliciter are

valid justification for legislation -- in his dissent in Romer v. Evans, the 1996 case in which the

United States Supreme Court invalidated a state constitutional amendment that repealed all

existing local lesbian/gay rights ordinances and prohibited any entity of state government from

using lesbian, gay, or bisexual as the basis for any sort of civil rights protection.4 Dissenting,

Scalia found in the amendment only “a modest attempt by seemingly tolerant Coloradans to

preserve traditional sexual mores against the efforts of a politically powerful minority to revise

those mores through use of the laws.”5

Dissenting in Lawrence v. Texas, the 2003 case in which the Supreme Court overruled

Bowers v. Hardwick, which had found state sodomy laws constitutionally acceptable, and struck

down the sodomy law of Texas, and by implication all other state sodomy laws, Scalia made

explicit his belief that the majority's moral preferences are a constitutionally sufficient basis for

legislation. He writes that

Countless judicial decisions and legislative enactments have relied on the ancient

proposition that a governing majority's belief that certain sexual behavior is "immoral and

4
Romer v. Evans 517 U.S. 620 (1996).
5
Id.
 unacceptable" constitutes a rational basis for regulation.... State laws against bigamy,

same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication,

bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of

laws based on moral choices.6

The cases involving non-marital children belie this claim, as well as Scalia's other doctrinal

claim in his Lawrence dissent.

The cases involving non-marital children consistently and squarely hold that the bare

desire to express the community’s moral condemnation is not a constitutionally sufficient

justification for legislation. Justice Kennedy made this point in his majority opinion via a

quotation from Justice Stevens' dissent in Bowers: “…the fact that the governing majority in a

State has traditionally viewed a particular practice as immoral is not a sufficient reason for

upholding a law prohibiting the practice; neither history nor tradition could save a law

prohibiting miscegenation from constitutional attack.”7 Here Stevens practices casuistry in both

the narrow legal and the broad social movement sense, analogizing from a famous case striking

down explicitly racist legislation to legislation that was homophobic in effect, if not on its face.

Similarly, Justice O'Connor, in her concurrence, agreeing with the holding of Lawrence

but basing her conclusion on the equal protection clause of the fourteenth amendment, rather

than the right to privacy under substantive due process, as the majority held, stated flatly that

This case raises a different issue than Bowers: whether, under the Equal Protection

Clause, moral disapproval is a legitimate state interest to justify by itself a statute that

bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of

this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy

6
Lawrence, 539 U.S. 558 (Scalia dissenting).
7
Ibid., quoting Bowers, 478 U.S. at 216 (Stevens dissenting).
 rational basis review under the Equal Protection Clause.... Indeed, we have never held

that moral disapproval, without any other asserted state interest, is a sufficient rationale

under the Equal Protection Clause to justify a law that discriminates among groups of

persons.8

O'Connor made no mention of the cases involving non-marital children, finding ample precedent

elsewhere for her claim.

In his Lawrence dissent, Scalia objected not only to the substance of its holding, but also

to the majority's procedure in arriving at that holding. He accuses the majority and the

concurrence of “apply[ing] an unheard-of form of rational-basis review that will have far-

reaching implications beyond this case.” Although the majority's opinion in fact applies

something one might call “rational basis plus,” it does not explicitly address the issue.

O'Connor, however, cites various cases for the proposition that “When a law exhibits such a

desire to harm a politically unpopular group, we have applied a more searching form of rational

basis review to strike down such laws under the Equal Protection Clause.” Again, O'Connor did

not cite any of the cases involving non-marital children here, but she might well have. Like the

majority opinion in Lawrence, the non-marital children cases do not much discuss the standard

of review involved, but they do tend to apply something that looks like “rational basis plus.”

The later cases explicitly hold that status as a non-marital child is not suspect at the level of

racial or ethnic identity, meaning that strict scrutiny, which the Court applies to legislation

relying on racial or ethnic categories, does not apply to statutes affecting non-marital children.

Even so, the Court held squarely and repeatedly that the expression of the majority's moral

preferences simpliciter is not a rational basis for legislation.

8
Lawrence, 539 U.S. 558 (O'Connor concurring).
 There is also a compelling strategic reason for lesbian/gay activists to foreground cases

involving non-marital children. Insofar as the unstated purpose, but certainly the obvious effect,

of statutes disfavoring non-marital children is plainly to allow men to escape responsibility for

their extra-marital sexual activity, this is very much and very directly a feminist issue. It thus

presents an opportunity, along with defense of abortion rights,9 for lesbian/gay activists to make

common cause with feminists.

There is also the obvious, but rarely remarked, point that, in a regime where few states

recognize marriage rights for same-sex couples, the many children born to same-sex couples are,

by definition, non-marital. Beyond our desire to protect our children from any sort of stigma,

legal or otherwise, for being non-marital, there is the point that, both politically and legally,

lesbian/gay activists should do more to encourage the children of same-sex couples to speak out

against discrimination against their parents. Following Balkin and Siegal, lesbian/gay legal

activists should explore methods of using equal protection decisions on behalf of non-marital

children to secure rights for their parents – using an old principle in a novel way to challenge an

old practice. Prohibitions on same-sex marriage, after all, have the effect of visiting invidious

discrimination on the heads of their children, discrimination that is irrational and unjust for the

same reasons that discrimination against all non-marital children is.

The remainder of this article consists of an examination of the cases in which the United

States Supreme Court reviewed statutes and policies disfavoring non-marital children in various

ways. This discussion emphasizes the ways in which the issue of non-marital children and the

community’s moral sensibility resembles cases involving lesbian/gay civil rights claims.
9
I take it that, apart from the doctrinal similarity of “privacy rights” that grounds the
Supreme Court's decisions striking down prohibitions on both abortion and sodomy, the
underlying rationale for the right to abortion and the right to sodomy are the same: both
involve claims to bodily autonomy at a profound and fundamental level, and resistance to
domination by heterosexual men, the need for which lesbians and gay men share with
women. Together, we are the majority, so why do we let them run the place?
 Between 1968 and 1986, the Supreme Court heard fourteen cases involving statutes or

policies imposing specific legislative disabilities or requirements on non-marital children.10 The

Court upheld the statutes in only four of these cases, striking down the statute or policy in all

others.11

The first of these cases, Levy v. Louisiana, involved Louisiana statutes that prevented five

non-marital children from filing a wrongful death action at the death of their mother, and from

continuing a cause of action that the mother had initiated before her death. The majority's

opinion set out a conceptual framework that would govern all subsequent cases, with

disagreement largely around the margins of the central definitions. In an indication of the

10
Reed v. Campbell, 476 U.S. 852 (1986) (Reversal of Texas appeals court's upholding of decision excluding non-
marital child from father's estate under statute that excluded all non-marital children from decedent parent's estate
unless parents subsequently married, despite Trimble v. Gordon, Supreme Court decision invalidating essentially
identical statute from another state on the argument that Trimble did not apply retroactively); Trimble v. Gordon,
430 U.S. 762, 767 n.11 (1977) (striking down on equal protection grounds an Illinois statute that categorically
prohibited non-marital children from taking in intestacy from their fathers even where the decedent had legally
acknowledged paternity); Jimenez v. Weinberger, 417 U.S. 628 (1974) (striking down on due process/equal
protection grounds a categorical prohibition on receipt of Social Security disability benefits by non-marital children
born after the parent’s disability); Gomez v. Perez, 409 U.S. 535 (1973) (striking down on equal protection grounds
Texas law holding that non-marital children have no claim to support from their fathers, unlike marital children);
New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (striking down on equal protection grounds
provision of New Jersey welfare statute that categorically denied benefits to non-marital children); Weber v. Aetna
Casualty & Surety Co, 406 U.S. 164 (1972) (striking down on equal protection grounds Louisiana statute allowing
unacknowledged, non-marital children to recover under workers’ compensation only to the extent that other
claimants did not exhaust the amount available for remedy); Griffin v. Richardson, 346 F. Supp. 1226 (Md.),
summarily aff’d, 409 U.S. 1069 (1972) (striking down on equal protection grounds portion of federal statute that
allows non-marital children to receive Social Security benefits on parent’s death only if other, favored, claimants do
not exhaust the available benefit); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U.S. 1069
(1972) (same as Griffin); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968) (per curiam)
(striking down under equal protection Louisiana statute that prohibited mother from filing wrongful death suit at
death of her non-marital child); Levy v. Louisiana, 391 U.S. 68 (1968) (striking down state's statutory scheme that
precluded children from pursuing wrongful death action for their mother's death, or continuing a cause of action that
she had initiated during her lifetime).
11
Lalli v. Lalli, 439 U.S. 259 (1978) (plurality opinion)(upholding against equal protection challenge a New York
state statute requiring non-marital child to show judicial recognition of decedent’s paternity before allowing the
child to take in intestacy); Matthews v. Lucas, 427 U.S. 495 (1976) (upholding against due process/equal protection
challenge federal statute requiring showing claimant’s actual dependency on decedent in order for non-marital
children to receive survivors’ benefits under Social Security); Beaty v. Weinberger, 478 F.2d 300 (CA5 1973),
summarily aff’d, 418 U.S. 901 (1974) (upholding against equal protection challenge federal policy categorically
prohibiting non-marital children from receiving Social Security benefits via parent’s disability claim)”; Labine v.
Vincent, 401 U.S. 532 (1971) (upholding against equal protection and due process challenges a Louisiana statute
excluding non-marital children from taking in intestacy unless the father legally acknowledge paternity).
general opprobrium non-marital children suffered under at the time, the Court began by stating

what one would hope was obvious: “We start from the premise that illegitimate children are not

'nonpersons.' They are humans, live, and have their being. They are clearly 'persons' within the

meaning of the Equal Protection Clause of the Fourteenth Amendment.”12 It then offered a short,

pedestrian review of Court doctrine regarding review of state legislation under the equal

protection clause, explaining that, while states have broad leeway to classify their citizens, still

those classifications must be “rational.”13

In evaluating the rationality of state statutory classifications, “we have been extremely

sensitive when it comes to basic civil rights and have not hesitated to strike down an invidious

classification even though it had history and tradition on its side.”14 The opinion contains no

explicit discussion of standard of review. This statement, however, does indicate that the Court

is applying O'Connor's “more searching form of rational basis review,” and for the same reasons

that O'Connor invoked it: that the law in question seemed to have as its primary or sole purpose

to express animosity toward the group in question. In the end, the Court concluded that the

children's status as non-marital was, or should be, irrelevant to their legal claims.

In particular, the Court noted that, because the present case involved tort actions, for

wrongful death and, apparently, the mother's separate cause of action, by denying her children

the opportunity to initiate a wrongful death action or continue the mother's separate action, the

Louisiana statutes had the undesirable effect of allowing tortfeasors to escape liability for no

legally sound reason.

12
Levy, 391 U.S. at (footnotes omitted). See infra, discussion of Trimble v. Gordon for
common law doctrine that non-marital children were filius nullius, or “son of nobody” from
the Latin.
13
Id.
14
Id. (citations omitted)
 The same year, in Glona v. American Guaranty & Liability Ins. Co., the Court also struck

down a Louisiana statute that had the inverse effect, of prohibiting a mother from filing a

wrongful death action for the death of her non-marital child. The court offered an overview of

Louisiana's statutes governing the rights of non-marital children, describing it as a “curious

course.”15 Louisiana's statutes made no distinction between marital and non-marital children for

purposes of defining incest, and the mother could inherit from a non-marital but recognized child

on the child's death, just as she could take under the state's workers' compensation law were she

in fact dependent on the child who died as the result of a workplace accident.16 Louisiana's

defense of its “curious course” gets to the core of the issue with respect both to non-marital

children and lesbians and gay men: “Yet it is argued that since the legislature is dealing with

'sin,' it can deal with it selectively and is not compelled to adopt comprehensive or even

consistent measures.”

This argument has a sort of intuitive plausibility to anyone who grew up in the

overwhelmingly Christian culture of the United States, yet one hesitates to attempt any rational

explanation of it, insofar as the point seems to be that, because the classification of actions as

“sin” is itself inherently not a product of rational calculation, then any subsidiary classifications

may also escape any inquiry as to their rationality. Insofar as all legislation at base deals in

essentially moral claims and classifications, this argument seems to allow a blanket escape hatch

by which all statutes could elude examination of their rationality. Statutes prohibiting same-sex

sexual activity, and otherwise imposing disabilities on lesbians and gay men, have their origin in

15
Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968).
16
Id.
similar Christian notions of “sin,” and degree of religiosity is a strong indicator of likely hostility

toward the rights claims of lesbians and gay men.17 Such statutes also lack all rational basis.

The Court goes on to note that the statute can scarcely be defended as an effective means

for deterring the getting of non-marital children. “It would, indeed, be farfetched to assume that

women have illegitimate children so that they can be compensated in damages for their death.”18

It then makes a point similar to that of Levy: “A law which creates an open season on

illegitimates in the area of automobile accidents gives a windfall to tortfeasors. But it hardly has

a causal connection with the 'sin,' which is, we are told, the historic reason for the creation of the

disability.”19 Such statutes thus have the dual flaws of allowing the irresponsible to escape the

consequences of their irresponsibility, and of doing so in a manner that bears essentially no

effective correlation to the underlying undesirable (by some accounts)20 conduct..

The next case, Labine v. Vincent, presented facts that would become common in

subsequent cases involving non-marital children. It is the first of the cases in which the Court

upheld the statute and represents thereby a departure from the larger legal trend. The case again

originated in Louisiana, this time challenging on equal protection grounds a statutory scheme

that prohibited non-marital children from taking from their fathers' estates in intestacy even

17
BERNICE E. LOTT & DIANE MALUSO, THE SOCIAL PSYCHOLOGY OF INTERPERSONAL DISCRIMINATION (1995), 84-85.
As an aside, this seems to me to be ample reason to eschew the whole notion of “sin” in any
public law. Them as wants to subject themselves to a religious regime that talks about sin
should be free to do so, but it is not a concept that can ever meet the standards of public
rationality that Americans rightly expect from their laws.
18
Id.
19
Id.
20
I should note here that, with most states not yet recognizing marriage rights for same-sex
couples, virtually all of the many children born to such couples are non-marital. I certainly
wish to visit no comdemnation, legal or moral, on such children. Apart from the children of
same-sex couples, visiting any disability on non-marital children seems like an obviously bad
idea. Children are children and we as a society have the responsibility to care for them,
regardless of how they got here. Again, I can see nothing in such statutes except the desire
of heterosexual men to escape responsibility for their extra-marital sexual activity, not a
goal that I, or our society as a whole, can or should endorse or abet.
where the father had formally acknowledged the child. The Court distinguished Levy by noting,

in part, that Levy involved tort claims, rather than inheritance, and asserted that

the Court held that the State could not totally exclude from the class of potential plaintiffs

illegitimate children who were unquestionably injured by the tort that took their mother's

life. Levy did not say and cannot fairly be read to say that a State can never treat an

illegitimate child differently from legitimate offspring.21

The Court then went on to compare the relationship of non-marital to marital children with that

of a wife and a concubine and asserted that the state surely could protect the interests of legally

wedded wives by disfavoring concubines.22

One obvious flaw in this analogy is that, in the concubine/wife comparison, there is

always an individual, the wife, whose interests the law can legitimately protect by disfavoring

the other party. With non-marital children, whether the father does or does not have marital

children will vary by case. Also, all children, unlike all concubines, require various forms of

support from adults in order to grow themselves into productive adults. Depriving any child of

such support is plainly not in the best interests of the larger society, regardless of the social harm

one my posit as stemming from non-marital sexual relations. The Court then concluded the issue

in Labine by resort to the sort of tautology beloved of judicial conservatives: “One set of

relationships is socially sanctioned, legally recognized, and gives rise to various rights and

duties. The other set of relationships is illicit and beyond the recognition of the law.”23

Concubines and non-marital children lack rights because, well, because the state says so. Case

closed.

21
Id.
22
Id.
23
Id.
 The Court ends its opinion by further explaining the difference it sees between this case

and Levy. In Levy, the Court asserts, the state had created an “insurmountable barrier” to

recovery by non-marital children. In Labine, by contrast, the father could have left a will

identifying the child as a beneficiary, or he could have legitimated the child by marrying her

mother, or by stating his intent to legitimate her in the formal, notarized acknowledgement of

paternity that he executed (no, such notarized acknowledgement of paternity was not sufficient

under Louisiana law to allow the child to take in intestacy).24

Predictably, Justice Brennan dissented, joined by Justices Douglas, White, and Marshall.

He asserted that the Court acknowledged that the Louisiana statute discriminates against the non-

marital child in a manner that violates the equal protection clause, but allowed this

discrimination by simply excluding the child from the protection of the clause. He then turned

the favorite charge of judicial conservatives against judicial liberals back on the conservatives in

the majority: “Based upon such a premise, today's decision cannot even pretend to be a

principled decision. This is surprising from Justices who have heretofore so vigorously decried

decisionmaking rested upon personal predilections, to borrow the Court's words, of 'life-tenured

judges of this Court'”25 The majority opinion, on Brennan's view, is an unprincipled reflection of

the majority's personal prejudices.

He concludes, damningly:

The conclusion the Court appears to draw from its itemization of other discriminations

among a deceased's relatives is that Louisiana needs no justification at all for any of the

distinctions it draws. That reasoning flies in the face not only of the Equal Protection and

24
Id.
25
Id. (Brennan dissenting).
 Due Process Clauses of the Fourteenth Amendment, but also of the very notion of a rule

of law.26

Brennan earlier noted that the state's authority to regulate family relationships was not at issue

and not contested in this case. Here he accuses the majority of careening off to the opposite

extreme: in its zeal to protect the state's power to regulate,27 it effectively removes all restraints

on that power, which is of course completely antithetical to the genius of American government.

Brennan criticized the majority's “the law is what the state says the law is, case closed

reasoning” thus:

It is, to say the least, bewildering that a Court that for decades has wrestled with the

nuances of the concept of 'state action' in order to ascertain the reach of the Fourteenth

Amendment, in this case holds that the state action here, because it is state action, is

insulated from these restraints.28.

He goes on to note that the majority's basis for distinguishing Levy is mistaken: there, the child

could have pursued a wrongful death action had the parent formally acknowledged the child; no

“insurmountable barrier” existed in Levy.29

Brennan concludes with an observation that he would make again in a subsequent dissent,

and elaborate further on:

26
Id.
27
Conservatives love to complain that any attempt to eliminate sodomy laws is a wholesale
attack on the power of government to govern. See Bowers, “This is essentially not a question of
personal "preferences" but rather of the legislative authority of the State” (Burger concurring);
Lawrence, “The impossibility of distinguishing homosexuality from other traditional 'morals'
offenses is precisely why Bowers rejected the rational-basis challenge. 'The law,' it said, 'is
constantly based on notions of morality, and if all laws representing essentially moral choices are
to be invalidated under the Due Process Clause, the courts will be very busy indeed'” (Scalia
dissenting, quoting Bowers). This is a bizarre claim.
28
id. (Brennan dissenting).
29
Id. (Brennan dissenting).
 In my judgment, only a moral prejudice, prevalent in 1825 when the Louisiana statutes

under consideration were adopted, can support Louisiana's discrimination against

illegitimate children. Since I can find no rational basis to justify the distinction Louisiana

creates between an acknowledged illegitimate child and a legitimate one, that

discrimination is clearly invidious.30

The implication is clear: in Brennan's view, at least, “moral prejudice” simpliciter is not a

constitutionally sufficient ground for legislation. Here he clearly poses the dichotomy: moral

prejudice on one hand, rational basis for legislation on the other, and never the twain shall meet.

The next two cases dealing with non-marital children the Court decided at the same time

in 1972, summarily affirming district court opinions striking down provisions of the Social

Security Act that allowed non-marital children to claim death benefits on a parent's earnings

record only insofar as other, more favored, beneficiaries did not exhaust the available benefit.31

Thus, by 1972, the Court had firmly established the principle that statutes and policies, state or

federal, discriminating against non-marital children were constitutionally suspect.

The next case to produce an opinion from the Court, also in 1972, was Weber v. Aetna

Casualty & Surety Co.32 Weber would subsequently become a lodestar case for disputes

involving the rights of non-marital children.33 Weber involved the claims of two non-marital

children to benefits under the workers' compensation statutes of Louisiana, which held that non-

marital children could receive such benefits only insofar as other beneficiaries in more favored

classes did not exhaust the available amount. In this respect, it presented essentially the same
30
Id. (Brennan dissenting).
31
Griffin v. Richardson, 346 F. Supp. 1226 (Md.); Davis v. Richardson, 342 F. Supp. 588 (Conn.), both

summarily aff'd, 409 U.S. 1069 (1972).

32
406 U.S. 164 (1972).
33
See Reed, 476 U.S. 852; Trimble, 430 U.S. 762; Jiminez, 417 U.S. 628; Matthews, 427 U.S.
495; Gomez, 409 U.S 535.
issue as Griffin and Davis. In holding the Louisiana discrimination unconstitutional, however,

the Court cited Levy and Glona. In Weber, the deceased's household included four legitimate

children by the deceased's wife, who was then committed to a mental hospital, and two non-

marital children by the deceased's co-habitant, whom he could not marry, having a living spouse.

The award under workers' compensation to the four marital children exhausted the available

benefit, leaving nothing for the two non-marital children.

In sustaining the state's statutory scheme, the Louisiana courts held that the present facts

more resembled those of Labine, where the Supreme Court had upheld the state statute, than

Levy, where the Court had struck the statute down. Noting the similar historical origins and legal

reasoning behind wrongful death statutes and workers' compensation statutes, the Supreme Court

disagreed with the Louisiana courts' assessment:

Given the similarities in the origins and purposes of these two statutes, and the similarity

of Louisiana's pattern of discrimination in recovery rights, it would require a disregard of

precedent and the principle of stare decisis to hold that Levy did not control the facts of

the case before us.34

Thus, the Court, as in Levy, struck the state statute down.

The language that would prove to make Weber a lodestar for subsequent cases appears in

the final paragraph, which merits quotation in full:

The status of illegitimacy has expressed through the ages society's condemnation of

irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on

the head of an infant is illogical and unjust. Moreover, imposing disabilities on the

illegitimate child is contrary to the basic concept of our system that legal burdens should

bear some relationship to individual responsibility or wrongdoing. Obviously, no child is

34
Weber, 406 U.S. 164.
 responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as

an unjust—way of deterring the parent. Courts are powerless to prevent the social

opprobrium suffered by these hapless children, but the Equal Protection Clause does

enable us to strike down discriminatory laws relating to status of birth where—as in this

case—the classification is justified by no legitimate state interest, compelling or

otherwise.35

To state what may already be obvious, it is the argument of this article that the reasoning the

Court here articulates with respect to non-marital children applies, or should apply, with equal

force to lesbians and gay men, and to all legislation that imposes burdens on them.

Imposing burdens on lesbians and gay men “is contrary to the basic concept of our

system that legal burdens should bear some relationship to individual responsibility or

wrongdoing.” Even under the previous regime in which the Court found state statutes

prohibiting sodomy constitutional,36 the blanket discrimination visited on lesbians and gay men

rarely, if ever, depended on a successful prosecution for having violated such statute; more, most

of those statutes historically prohibited the conduct in question for all persons, making no

distinction among the gender or sex of the participants.37 The discrimination in most states

should, under the concept of equal protection of the laws, have aimed at all persons, regardless of

sexual orientation, who practiced sodomy, which many heterosexual couples do.38 As Justice
35
Id.
36Bowers v. Hardwick, 478 U.S. 1039, overruled by Lawrence v. Texas, 537 U.S. 1231.
37
This was true even in Bowers, although the Court chose to ignore that fact, characterizing
the issue as the right of “homosexuals” to engage in sodomy.
38
See Michael Rocke, Forbidden Friendships (1998) 215-16 (discussion of prosecutions for
heterosexual sodomy in late 15th and early 16th century Florence); Geraldine Bedell,
“'Unnatural,' Maybe, but Not Unknown: It Is Dangerous to Make Assumptions about What is
Normal Sex, Says Geraldine Bedell,” The Independent, July 5, 1992,
http://www.independent.co.uk/life-style/unnatural-maybe-but-not-unknown-it-is-dangerous-
to-make-assumptions-about-what-is-normal-sex-says-geraldine-bedell-1531306.html (last
visited, July 7, 2009) (article estimating that 20 to 43 percent of married women had tried
“sodomy,” referred to subsequently in the article as “anal intercourse,” although most
sodomy statutes have been understood to prohibit fellatio and cunnilingus as well. See
Kennedy noted in overruling Bowers v. Hardwick, the case upholding state sodomy statutes,

statutes aimed specifically at same-sex couples were a relatively recent permutation on the basic

crime.39

Similarly, “penalizing [lesbians and gay men] is an ineffectual—as well as an unjust—

way of deterring” individuals from identifying as lesbian or gay. Neither sodomy statutes, nor

the various other disabilities that American law has variously visited on lesbians and gay men,

dissuaded all persons from adopting that identity. Indeed, those disabilities have had exactly the

opposite effect, causing large numbers of lesbians and gay men to assert their identities all the

more vociferously as part of a political movement to demand an end to the discrimination.

Indeed, avowal of one's lesbian/gay identity has become a central tactic for lesbian/gay rights

activists on the logic that opinion polling data show that persons who know a lesbian or gay man

are more likely to support their rights claims than persons who do not. As I have argued

elsewhere, this vigorous participation in the political process is itself a separate reason why

courts should strike down all discriminations based on sexual orientation and gender identity

under the equal protection clause, and the First Amendment.40

Finally, in effect anticipating its subsequent holdings in Romer v. Evans and Lawrence v.

Texas, the Court in Weber stated that “the classification is justified by no legitimate state interest,

compelling or otherwise.” Brennan's use of the term, “compelling” here seems to anticipate the

emergence of “compelling state interest” as the most common phrase the Court uses to indicate

the requirement the state must meet for any use of racial or ethnic classifications to pass

Lawrence, 517 U.S. at xxx for Texas sodomy statute defining “deviate sexual intercourse” as
"(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the
penetration of the genitals or the anus of another person with an object."
39
Lawrence, 517 U.S. 1231.
40
William B. Turner, The National Masturbators' Task Force, SSRN abs. #1120588.
constitutional muster.41 The finding that a law must serve a compelling state interest, of course,

triggers the Court's strict scrutiny review, the most difficult form of review for a statute to

survive. This opinion, like Levy, thus seems to rest on rational basis plus review.

The Court's next review of a statutory scheme discriminating against non-marital children

came from Texas, where a state court found that the respondent was the biological father of the

child, and that the child needed the father's support, but held that, because the child was

“illegitimate,” it had no legal claim to support from the father.42 As noted above, all of the

statutes and policies at issue in these cases in varying ways have the effect, nowhere stated as the

express purpose, of allowing men to escape responsibility for their extra marital sexual activity.

This effect appears no where so glaringly, however, as in this case, where a judge could hold that

the respondent was in fact the child's father, and the child needed support, but state statutes

prevented the judge from ordering that support solely because the child was non-marital. The

Texas appeals court sustained this decision against constitutional challenge, and the Texas

Supreme Court refused to hear the appeal. The United States Supreme Court granted certiorari

and reversed the Texas courts.43

The U.S. Court rehearsed Texas statutes holding fathers responsible for supporting their

children, noting that such responsibility survives the end of the father's marriage to the mother,

applies regardless of whether the father has custody of the children in question, and is

enforceable by resort to criminal sanctions if necessary. It then reviewed its holdings in Levy

41
See, e.g., Grutter v. Bollinger,539 U.S. 306 (2003) (majority finding that diversity in
educational institutions is a compelling state interest, such that law school's race-based
affirmative action policy is constituionally acceptable, while dissenters all assert that the
majority's scrutiny of the affirmative action policy is anything but strict); Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227 (clear statement of the doctrine that racial
classifications will undergo strict scrutiny to detemine if they are narrowly tailored to
achieve a compelling state interest).
42
Gomez v. Perez, 409 U.S. 535.
43
Id.
and Weber, concluding with this sweeping declaration against paternal irresponsibility: “We

therefore hold that once a State posits a judicially enforceable right on behalf of children to

needed support from their natural fathers there is no constitutionally sufficient justification for

denying such an essential right to a child simply because its natural father has not married its

mother.”44 Need I point out that the scheme under which the father could escape his support

obligation just by not marrying the mother was a virtual invitation to men to abandon their non-

marital children, and the mothers of those children.

The Court followed Gomez in the same year, 1973, with New Jersey Welfare Rights

Organization v. Cahill. This decision produced a notably brief opinion in which the Court

succinctly stated the facts, which were that, through its definition of the family types that were

eligible for public assistance, the state worked discrimination against non-marital children

without stating such discrimination explicitly. It then quoted the final paragraph of Weber,

quoted above, and restated the holdings of Weber, Levy, and Gomez to hold the New Jersey

scheme unconstitutional in its discrimination against non-marital children.

Next, in Jiminez v. Weinberger, the Court reviewed a provision of the Social Security Act

prohibiting non-marital children born after the parent's disability from receiving disability

insurance payments absent a showing either that the father resided with the claimant, or was

actually supporting the claimant at the time of the disability, in contrast to marital children and

subsequently legitimated non-marital children. Jiminez was the father of three children with his

partner, had publicly acknowledged being their father, and had become their sole caretaker at the

departure from the household of the children's mother. Because the first child was born before

Jiminez became eligible for disability payments, she qualified for coverage of her own. The

44
Id.
other two children, by contrast, having been born after Jiminez's qualification for disability

payments, and being non-marital, did not qualify.

Each side pointed to a Supreme Court decision assertedly supporting its position. The

Secretary of Health, Education, and Welfare relied on Dandridge v. Williams,45 where the Court

upheld a state's public assistance program that made no distinction in benefits regardless of

family size against a constitutional challenge. Appellants pointed by contrast to Weber for the

proposition that discriminations based on the marital/non-marital distinction are constitutionally

suspect.46 The Court distinguished Dandridge, noting that its decision in that case turned

significantly on the fact of limited resources, making rational the state's decision to support some

families sufficiently, but others less sufficiently, rather than supporting all families insufficiently.

The Court found no such concern operating in the case of the Social Security system, noting the

Secretary's own insistence that the prohibition on afterborn non-marital children from receiving

benefits was designed solely to minimize fraud resulting from spurious, including collusive,

claims to paternity.47

The Court then noted that all marital children, and certain classes of afterborn non-marital

children, qualified for benefits with no showing of actual dependence on the disabled wage

earner, whereas afterborn non-marital children who could not be legitimated under state law

were categorically barred from receiving benefits regardless of their actual dependence on the

disabled wage earner. The discrimination, then, was not between all non-marital and all marital

children, but between two subclasses of non-marital children. This discrimination was both

overinclusive, in allowing benefits to some children who were not in fact dependent on the

disabled wage earner, and underinclusive in denying benefits to some children who were in fact

45
397 U.S. 471 (1970).
46
Id.
47
Id.
so dependent. The distinction rested solely on the concern to prevent spurious claims. The

Court noted, however, that “the potential for spurious claims is the same as to both,” rendering

the exclusion of afterborn, non-legitimated, non-marital children a violation of the equal

protection component of the Fifth Amendment.48 It did not note, though it might well have, that

such concern was completely unjustified on the instant facts because the father had publicly

acknowledged the children as his. This is a rare instance in which, because the mother had left

the household, the deleterious effects of the statute fell on a man rather than a woman, in

addition, of course, to the children. .

In 1976, the Court upheld an essentially identical provision of the Social Security

program against similar constitutional attacks. Both Matthews v. Lucas49 and Norton v.

Matthews50 resembled Jiminez in placing a higher burden of proof of dependence on certain non-

marital children not, as in Jiminez, for receipt of benefits at the parent's disability, but at the

parent's death. Relying on Jiminez and Gomez, the district court reversed the Secretary's

administrative denial of benefits in Matthews and ordered him to pay benefits to the claimants.51

Norton presented the same substantive issue, but also somewhat complicated jurisdictional issues

resulting from its status as a class action suit that need not detain us here (in Norton, note that the

father was serving in the Army in Vietnam and had begun the process of acquiring dependents'

pay for his child, but did not complete the application before dying in combat).52

These cases are obviously outliers in terms of this article's discussion of the cases in that

both involve upholding, rather than striking down, discriminations based on the marital/non-

marital distinction. The majority in Matthews distinguished Jiminez by asserting that Congress

48
Id.
49
427 U.S. 495 (1976).
50
427 U.S. 524 (1976).
51
Matthews, 427 U.S. 495.
52
Norton, 427 U.S. 524.
had based its statutory scheme on “reasonable empirical judgments that are consistent with a

design to qualify entitlement to benefits upon a child's dependency at the time of the parent's

death.” Those “reasonable empirical judgments” in turn served the rational interest in

“administrative convenience,” allowing the administration “to avoid the burden and expense of

specific case-by-case determination in the large number of cases where dependency is

objectively probable.” Such approximations by Congress are constitutionally acceptable “so

long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by

the applicable level of scrutiny.”53 This despite the same problems of overinclusiveness and

underinclusiveness as in Jiminez.

Matthews is the first of these cases to contain an explicit discussion of the appropriate

level of review. It does so because the district court had found that non-marital status is like race

and ethnicity in requiring strict scrutiny from the courts. The Supreme Court disagreed with the

district court's finding on this point.54 Again quoting Weber's explanation that the non-marital

classification is inherently unjust and irrational, still the majority in Matthews cited other cases

involving non-marital children to note that it had invalidated statutes discriminating against the

class without finding that the class was suspect at the level of race or ethnicity. It also noted that,

merely because a classification is unconstitutional as applied in some contexts does not entail the

conclusion that it is unconstitutional in all contexts. Finally, the Matthews majority noted that

the discrimination that non-marital children suffered has never been so pervasive and severe as

that visited on women or racial and ethnic minorities. The Court concluded that “We conclude

that the statutory classifications are permissible…because they are reasonably related to the

53
Matthews, 427 U.S. 495.
54
Id.
likelihood of dependency at death.”55 “Reasonably related” says essentially the same thing as

“rational basis.”

Justice Stevens, joined by Justices Brennan and Marshall, dissented in both Matthews

and Norton, predicating his dissent on the merits on the same argument in both cases.56 In

Matthews he stated flatly that he could see no relevant difference between that case and Jiminez,

thereby rejecting the majority's effort to distinguish the two. He then discussed the majority's

approving rehearsal from previous cases of the point that visiting disabilities on non-marital

infants is “illogical and unjust,” again quoting Weber. Given this finding, Stevens would hold

the discrimination “invalid unless it is justified by a weightier governmental interest than merely

'administrative convenience.'"57

Stevens then offers a brief but highly acute and perspicacious discussion of prejudice in

terms of tradition that merits extended quotation:

However irrational it may be to burden innocent children because their parents did not

marry, illegitimates are nonetheless a traditionally disfavored class in our society.

Because of that tradition of disfavor the Court should be especially vigilant in examining

any classification which involves illegitimacy. For a traditional classification is more

likely to be used without pausing to consider its justification than is a newly created

classification. Habit, rather than analysis, makes it seem acceptable and natural to

distinguish between male and female, alien and citizen, legitimate and illegitimate; for

too much of our history there was the same inertia in distinguishing between black and

white. But that sort of stereotyped reaction may have no rational relationship other than

55

56
Matthews, (Stevens dissenting); Norton (Stevens dissenting).
57
Matthews, (Stevens dissenting).
 pure prejudicial discrimination to the stated purpose for which the classification is being

made.58

As with the Court's explanation for the irrationality of the non-marital distinction in Weber,

Stevens' discussion here of the problem with traditional forms of discrimination applies with

equal force to lesbians and gay men. Although demonstrably not as deeply rooted in our nation's

traditions as some Justices would have us believe,59 still many defend their desire to discriminate

against lesbians and gay men in terms of tradition, and such discrimination has plainly in fact

become a habit in just the sense that Stevens here condemns.

In 1977, the Supreme Court decided Trimble v. Gordon, striking down an Illinois statute

that allowed non-marital children to inherit from their fathers in intestacy only if the parents had

married.60 The Illinois Supreme Court upheld the law on the authority of Labine. The U.S.

Supreme Court noted that it had distinguished Labine in Weber, and relied heavily on the

language of Weber in striking the Illinois statute down. In defending the Illinois statute, the state

noted that the current statute, which allowed non-marital children to inherit only from their

mothers, was an improvement over the previous common-law regime, which declared non-

marital children filius nullius and allowed them to inherit from neither parent. It found that the

statute had two purposes, to encourage family relationships, and to provide for the orderly

disposition of decedents' estates.

The Court acknowledged the legitimacy of the state's concern for family relationships,

but noted that cases such as this required more than a “mere incantation of a proper state

58
Id.
59
Fred Fejes, Gay Rights and Moral Panic: The Origins of America's Debate on Homosexuality
(2008) (explaining changing popular understandings of lesbians and gay men in the United
States during the twentieth century) ; Martin Bauml Duberman, “'Writhing Bedfellows, 1826:
Two Young Men from South Carolina's Ruling Elite Share 'Extravagent Delight'” (article
describing intimate correspondence between two young men from prominent South Carolina
families that discusses their sexual relationship with each other) Lawrence opinion.
60
Trimble v. Gordon, 430 U.S. 762 (1977).
purpose.” It then rehearsed its well established finding that disfavoring non-marital children to

express the community’s disapproval of extra-marital sexual relations was “illogical and unjust,”

and not a constitutionally permissible objective. It quoted again the final paragraph from Weber,

concluding that “The parents have the ability to conform their conduct to societal norms, but

their illegitimate children can affect neither their parents' conduct nor their own status.”61 The

Court thus dismissed the goal of establishing “legitimate” families as a constitutionally

permissible one. Perhaps it would be better to say that the state may certainly enact statutes for

the purpose of establishing “legitimate” families, but only insofar as such statutes work no

discrimination against persons who choose not to enter into such families.

It gave more credence to the other stated purpose of the statute, ensuring the orderly and

just disposition of decedents' estates. Acknowledging that problems of proof were greater for

non-marital claimants against fathers' estates than against mothers', still the Court asserted that

Illinois had failed to consider the possible middle ground between wholesale denial of

inheritance rights to non-marital children and case-by-case examination. Indeed, in the instant

case, a circuit court in Illinois had found the deceased to be the child's father and ordered him to

pay support, an order he assertedly complied with, obviating any concern for proof of paternity.62

The Court reversed and remanded to the Supreme Court of Illinois for further proceedings.

In 1978, the Court decided Lalli v. Lalli, the last of the cases involving non-marital

children in which the Court upheld the statute, which in this case came from New York and

placed a higher burden of proof on non-marital children who would take in intestacy. In doing

so, it noted its finding in Matthews, reiterated in Trimble, that non-marital status was not suspect

at the level of race or ethnicity; the court's strictest scrutiny, then, was not applicable, although

61
Id.
62
Id.
the intermediate level of scrutiny involved – call it rational basis plus – was not “toothless,” as

Trimble demonstrated in striking the statute down. The Court distinguished the New York

statute in Lalli from the Illinois statute in Trimble by noting that the New York statute imposed

only an evidentiary burden on the non-marital child, not the requirement that the parents marry,

as in Illinois. The Court noted that, under the New York statute, the petitioner in Trimble would

have been eligible to inherit, having a court order finding the deceased to be her father. The New

York statute resembled the Illinois statute, however, in being a reform that relaxed its more

draconian predecessor, which allowed non-marital children to inherit only from their mothers.

The Court rehearsed the relative difficulties of proof that claims of paternity present that

are not present in claims of maternity, holding that the New York scheme, unlike the Illinois

scheme, was sufficiently narrowly tailored to the state's legitimate goal of ensuring the just and

reliable disposition of decedents' estates. Dissenting, Justice Brennan noted that the requirement

of a judicial finding of paternity would often disqualify heirs such as the petitioner in Lalli,

whose father had acknowledged and supported him during his lifetime, but had simply never

gone through with the formality of a judicial proceeding. He also dismissed the asserted concern

to avoid belated claims by unknown non-marital children, noting that the commonly used legal

devices of notification by publication and a short statute of limitations for claims would be ample

to avoid the problems of unknown non-marital children fouling the legal process with their

claims.

Finallly, in 1986, the Court decided Reed v. Campbell,63 which involved essentially the

same facts as Trimble v. Gordon. A Texas statute allowed a non-marital child to inherit from the

father's estate in intestacy only where the father had legitimated the child by marrying the

mother. The Court summarized itself thus:

63
476 U.S. 852 (1986).
 we have unambiguously concluded that a State may not justify discriminatory treatment

of illegitimates in order to express its disapproval of their parents’ misconduct. We have,

however, also recognized that there is a permissible basis for some 'distinctions made in

part on the basis of legitimacy'; specifically, we have upheld statutory provisions that

have an evident and substantial relation to the State’s interest in providing for the orderly

and just distribution of a decedent’s property at death.64

Note the point: moral disapproval simpliciter is not a sufficient ground for imposing legal

disabilities on a minority group. According to the Reed court, expression of moral disapproval is

not a legitimate state interest.

The Court concluded that the state court’s decision was unconstitutional. The state court

in Reed excluded the plaintiff from recovery solely because her father died four months before

the Supreme Court’s opinion in Trimble v. Gordon, which squarely held that the practice of

preventing non-marital children from inheriting in intestacy unless their parents had

subsequently married was unconstitutional. In Reed, the state court held that the plaintiff was

ineligible to inherit under such a rule, and that it had no responsibility to apply the holding of

Trimble retroactively.65 The Supreme Court could see no rational basis for refusing to apply

Trimble retroactively.

Interestingly, as we have seen, the Court consistently refused to find that non-marital

children constitute a suspect, or even a quasi-suspect, classification for purposes of equal

protection analysis. They did their work on behalf of non-marital children using rational basis

review. In Mathews v. Lucas, the Court wrote,

It is true, of course, that the legal status of illegitimacy, however defined, is, like race or

64
Id. at 854-55.
65
One really cannot help but ask, are these judges stupid, mean, or both?
 national origin, a characteristic determined by causes not within the control of the

illegitimate individual, and it bears no relation to the individual’s ability to participate in

and contribute to society. The Court recognized in Weber that visiting condemnation

upon the child in order to express society’s disapproval of the parents’ liaisons “is

illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary

to the basic concept of our system that legal burdens should bear some relationship to

individual responsibility or wrongdoing. Obviously, no child is responsible for his birth

and penalizing the illegitimate child is an ineffectual – as well as unjust – way of

deterring the parent.”66

Once again, every substantive statement in this quotation applies with equal force to lesbian and

gay men.

Lesbian/gay identity “is, like race or national origin, a characteristic determined by

causes not within the control of the [lesbian/gay] individual, and it bears no relation to the

individual’s ability to participate in and contribute to society,” facts that only the most

recalcitrant homophobe would contest. We have already discussed the other two points – that

legal burdens should bear some relationship to individual responsibility or wrongdoing, and that

penalizing lesbians and gay men for their lesbian/gay identity is both unjust and

counterproductive, bringing about exactly the opposite of the desired outcome. Again, the

existence of a vigorous and, in the main, successful, LGBT civil rights movement in spite of

various legal disabilities proves both the ability of LGBT persons to participate in and contribute

to society, and the counterproductiveness of efforts at deterrence.

The one important difference between non-marital children and LGBT persons, as the

66
Mathews, 427 U.S. at 505, quoting Weber, 406 at 175.
quotation above from Reed v. Campbell indicates,67 is that the courts have found legitimate

reasons to allow the use of the marital/non-marital distinction, especially where the state can

show a legitimate concern for fraud. Non-marital children may in some instances operate under

increased burdens of proof.68 One of the claims of this article is that no legislative

classifications based on sexual orientation are rational. But the underlying point is that the courts

have been quite thoughtful in their willingness to evaluate the actual circumstances that the cases

of non-marital children present, and they have achieved a reasonable, consistent balance between

the rights of non-marital children and the legitimate administrative needs of government.

Not surprisingly, Scalia carefully avoids mention of these cases in both his Romer and his

Lawrence dissents. Again, they conclusively disprove his contention that statutes serving no

purpose other than to express the community's moral condemnation of particular conduct are

constitutionally permissible.69 Given that no other “rational” basis for discriminations against

lesbians and gay men exists, this point necessarily invalidates all such discriminations under the

equal protection clause of the fourteenth amendment to the United States Constitution.

67
Supra note 108.
68
See, e.g., Lalli, 439 U.S. 259; Matthews, 427 U.S. 495.
69
Lawrence, 539 U.S. at 586ff (Scalia dissenting).