Written by Kevin Senich
Marriage is disappearing. Its once privileged status has been largely taken away by laws designed to make divorce easy. Once law ceased to protect marriage, it rapidly evolved in the direction of making marriage irrelevant. Legally, it makes increasingly little difference today whether one is married or not.
A recent case on point is J.A.S v. Bushelman, where the Kentucky Supreme Court pitched itself headlong into the growing national debate over the sanctity of marriage as an institution. In Bushelman a man filed a paternity action claiming the child born to a married woman was his, and not the woman’s husband’s. The issue was whether this other man could even be heard in court. Historically, the question of whether a wife’s child was her husband’s was a question only a husband could ask in court. When the dust settled, the Court had decided that the marital status of the mother was irrelevant in paternity actions.
Bushelman was decided by the narrowest margin. An impassioned dissent implored the majority to consider whether marriage, if not the law, could tolerate equating the rights of a husband with those of an “interloper” as regards the paternity, and hence custody, of a child born to a husband’s wife. Unfortunately, marriage lost … again.
Why did marriage lose? Fifty years ago the interloper would have been thrown out of court. A hundred years ago he would have been sued for defamation. Two hundred years ago the interloper would have kept his mouth shut unless he was a much better shot than the husband with a dueling pistol. Infidelity happened then. Perhaps as much as today. But, marriage as an institution was protected.
Then we eliminated our bastardy laws.
Once upon a time in America, paternity was more clear cut. If a child’s parents were married, the husband was presumed the father. Otherwise, in many ways it did not matter who the father was. “Bastardy” was a legal status, and not an enviable one. Children “born out of wedlock” were not entitled to inherit property from their biological fathers’ estates, and until very recently, not even entitled to child support.
Simply put, the old bastardy laws existed to incentivize marriage, or, more appropriately, to seriously disincentivize out of wedlock childbirth. Under those laws, women could ill afford to have illegitimate children. This was not just for social reasons, but for financial reasons as well. Men’s access to women outside marriage correspondingly was more limited. Certainly those laws did not exist to punish children and stigmatize people for life. But in our effort to eliminate the unwanted, adverse collateral effects of bastardy laws, we also eliminated the incentives to have children in lawful wedlock. Changes in law are rife with unintended consequences.
The elimination of the bastardy laws had a ripple effect. In short order, the financial responsibility of a biological father for child support was equated to that of a husband in marriage. Such laws obviously intended to safeguard the needs of out of wedlock children and unmarried mothers. But, in equating the support obligations of fathers of children born out of wedlock with those of married fathers, the law eliminated yet one more distinction between marriage and non-marriage, one more reason why marriage could be seen as unnecessary.
Today 40% of our mothers feel no compelling incentive to marry. The stigma of unwed childbearing is gone. Husbands are no longer prerequisites. Yet, the promise of child support regardless of marital status is as illusory as the belief that unwed fathers will necessarily participate in their children’s lives to the same extent as married fathers. Despite freedom from the shame of illegitimacy, despite child support laws mandating equality with children of marriage, children born out of wedlock are still routinely stigmatized by poverty. They are also far too often fatherless in every sense except the biological one.
The pro-marriage laws of our forbearers, now seen in some circles as oppressive, were nevertheless purposeful. They existed because they HAD to. The edifice that was the institution of marriage was constructed over eons of trial and error. Laws supporting marriage existed for one reason and one reason only – time proved that marriage NEEDED them. Human nature did not change. The way we made babies did not change. But, our marriage laws did and continue to do so, all the while hammering away with unintended consequences at the institution’s foundations.
Once upon that time, the presumption that the husband was the biological father of his wife’s child was “the strongest known to law.” Marriage was important, even more important than biology. Reconciliation and marriage had at least some small chance, even in the face of dramatic infidelity. Once we said that marriage was irrelevant for child support, and now note the consequences. At least in Kentucky marriage is now irrelevant for parenting. So says the majority of the Kentucky Supreme Court. Add Bushelman to the list of the law’s disregard for marriage, and the disregard is now so complete as to be more akin to disdain.
I respectfully join the dissent.
