Law Commons^™

Abstract: This Article questions whether and why it should be unconstitutional to treat legitimate and illegitimate children differently. It argues that legitimacy doctrine is rooted in a biological essentialism completely at odds with contemporary efforts to expand legal recognition of nontraditional parenting practices including same-sex parenting, single parenthood by choice, surrogacy, and sperm donation. The routine invocation of legitimacy doctrine by advocates purporting to help nontraditional families is thus at best ironic and at worst dangerous. Analysis of the U.S. Supreme Court’s legitimacy cases reveals that liberal Justices, in trying to dismantle marriage—a legal construct—as the arbiter of legitimate parenthood, …