Tuesday, May 20, 2008

The 1968 Revolution You Never Heard Of

In a Los Angeles Times opinion piece, Nancy Polikoff, law professor at American University and author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law," discusses the impact of a little-known U.S. Supreme Court ruling from 1968. She calls it the "1968 revolution you never heard of." In the case, the court "repudiated centuries of settled law by granting constitutional recognition and protection to a previously outcast group: children born outside of marriage and their parents."

The case had to do with the rights of parents and children in unwed unions.
Under common law, a child born outside marriage used to be fillius nullius, the child of no one. In the Middle Ages, it was even a lesser crime to kill a person who had been born to an unmarried woman. In the U.S., well into the 1960s, such a child's birth certificate might be stamped "bastard."

The State of Louisiana maintained to the court that it was "not trying to punish or discriminate against anyone":
Louisiana's purposes ... are positive ones: the encouragement of marriage as one of the most important institutions known to law, the preservation of the legitimate family as the preferred environment for socializing the child. ... Since marriage as an institution is fundamental to our existence as a free nation, it is the duty of ... Louisiana to encourage it. One method of encouraging marriage is granting greater rights to legitimate offspring."

Polikoff notes that the Supreme Court rejected that reasoning and refused to penalize the unwed parents or the children born out of wedlock:
Encouraging marriage and expressing disapproval of nonmarital sex were no longer constitutionally sufficient reasons to deny equal rights to children or to their parents.

Citing last week's California Supreme Court ruling allowing same-sex couples to marry, Polikoff, remarks that those who argue against rights for non-traditional families "may assert that they do not intend to punish or discriminate but simply want to promote marriage. It's an argument that rings as hollow in 2008 as it did in 1968."

From a Latter-day Saint point of view, is it better for families to suffer financially and emotionally so as to uphold the LDS doctrine of sexual purity, or should we be more concerned with the welfare of the individual families themselves? Did the U.S. Supreme Court in 1968 contribute to the disintegration of the Family?

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