“In regard to the only issue that I consider properly before the Court, I agree with the State’s argument that the Equal Protection Clause is not violated when Illinois gives full recognition only to those father-child relationships that arise in the context of family units bound together by legal obligations arising from marriage or from adoption proceedings. Quite apart from the religious or quasi-religious connotations that marriage has – and has historically enjoyed – for a large proportion of this Nation’s citizens, it is in law an essentially contractual relationship, the parties to which have legally enforceable rights and duties, with respect both to each other and to any children born to them. Stanley and the mother of these children never entered such a relationship. The record is silent as to whether they ever privately exchanged such promises as would have bound them in marriage under the common law. See Cartwright v. McGown, 121 Ill. 388, 398, 12 N. E. 737, 739 (1887). In [405 U.S. 645, 664] any event, Illinois has not recognized common-law marriages since 1905. Ill. Rev. Stat., c. 89, 4. Stanley did not seek the burdens when he could have freely assumed them.
Where there is a valid contract of marriage, the law of Illinois presumes that the husband is the father of any child born to the wife during the marriage; as the father, he has legally enforceable rights and duties with respect to that child. When a child is born to an unmarried woman, Illinois recognizes the readily identifiable mother, but makes no presumption as to the identity of the biological father. It does, however, provide two ways, one voluntary and one involuntary, in which that father may be identified. First, he may marry the mother and acknowledge the child as his own; this has the legal effect of legitimating the child and gaining for the father full recognition as a parent. Ill. Rev. Stat., c. 3, 12-8. Second, a man may be found to be the biological father of the child pursuant to a paternity suit initiated by the mother; in this case, the child remains illegitimate, but the adjudicated father is made liable for the support of the child until the latter attains age 18 or is legally adopted by another. Ill. Rev. Stat., c. 106 3/4, 52…
The Illinois Supreme Court correctly held that the State may constitutionally distinguish between unwed fathers and unwed mothers. Here, Illinois’ different treatment of the two is part of that State’s statutory scheme for protecting the welfare of illegitimate children. In almost all cases, the unwed mother is readily identifiable, generally from hospital records, and alternatively by physicians or others attending the child’s birth. Unwed fathers, as a class, are not traditionally quite so easy to identify and locate. Many of them either deny all responsibility or exhibit no interest in the child or its welfare; and, of course, many unwed fathers are simply not aware of their parenthood.
Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male’s often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until [405 U.S. 645, 666] they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State’s obligations as parens patriae. 4
Stanley depicts himself as a somewhat unusual unwed father, namely, as one who has always acknowledged and never doubted his fatherhood of these children. He alleges that he loved, cared for, and supported these children from the time of their birth until the death of their mother. He contends that he consequently must be treated the same as a married father of legitimate children. Even assuming the truth of Stanley’s allegations, I am unable to construe the Equal Protection Clause as requiring Illinois to tailor its statutory definition of “parents” so meticulously as to include such unusual unwed fathers, while at the same time excluding those unwed, and generally unidentified, biological fathers who in no way share Stanley’s professed desires. [405 U.S. 645, 667]
As Mr. Justice Frankfurter once observed, “Invalidating legislation is serious business . . . .” Morey v. Doud, 354 U.S. 457, 474 (1957) (dissenting opinion). The [405 U.S. 645, 668] Court today pursues that serious business by expanding its legitimate jurisdiction beyond what I read in 28 U.S.C. 1257 as the permissible limits contemplated by Congress. In doing so, it invalidates a provision of critical importance to Illinois carefully drawn statutory system governing family relationships and the welfare of the minor children of the State. And in so invalidating that provision, it ascribes to that statutory system a presumption that is simply not there and embarks on a novel concept of the natural law for unwed fathers that could well have strange boundaries as yet undiscernible…”[i]
“By excluding unmarried mothers and divorced mothers (for the most part) from eligibility, the framers of the mothers’ pension laws made it quite clear that their primary concern was to support traditional families when those families suffer financial difficulties from the loss of the husband’s income. They were also concerned to take no action that would encourage illegitimacy or divorce. In addition to the criteria excluding certain categories of recipients, there were behavioral criteria as well…Only much later, with the welfare legislation of the Great Society were moral criteria abandoned in administering AFDC programs- the direct successor of mothers’ pensions. The subsequent explosion of the illegitimacy rate is a persuasive argument that the concerns of mothers’ pension proponents were justified.”[ii]
Because of the feminist movement and the sexual revolution (which was a product of the feminist movement), we now have a welfare system and a legal system that rewards illegitimacy and punishes marriage. The result is a society that is wrecked. Our legal system is corrupt, our schools are dangerous, children are failing school and turning to crime, and the happiness of women is at the lowest point in our history. In this article I consider one of the main reasons that I believe all these problems are occurring. The main problem, I believe, is the breakdown of our families.
The word “family” is indeed very diverse if we consider all of the cultures throughout history. Every society has had its own customs regarding marriage. Some societies were matrilineal with the fathers (if paternity was ever even acknowledged at all) being occasional visitors with no necessary obligation to support the children and having no claim to them. The most successful and civilized societies have generally been strictly patriarchal, with men having the responsibility to support, protect and lead their families and, of course, the resulting rights that come along with it. Many societies have had homosexual marriages and polygamy/polyandry and a whole host of other living arrangements. In the view of feminists, all of these living arrangements can exist simultaneously. Indeed, their entire movement was about changing our laws and customs to reflect any family arrangement one can think of. All stigma concerning illegitimacy and unwed mothers had to go because, of course, it was “discrimination” and an attack on personal freedoms. The stigma of illegitimacy was one of the first things that had to go in the eyes of feminists because, of course, women must be sexually free and marriage was the enslavement of both men and women in their view. As Germaine Greer stated in 1970:
“Even though there are more problems attendant upon bringing up an illegitimate child, and even friendly cohabitation can meet with outrage and prosecution from more orthodox citizens, marrying to avoid these inconveniences is a meaningless evasion.”[iii]
Yet, after a few decades we see the results of these policies and no true analysis of the cultural and legal climate today can reasonably conclude that all has changed for the better. The prime leaders of the women’s liberation movement claimed that women would be better off if they were sexually free and postponed marriage to pursue their careers first. They championed easier divorces and abolition of all the laws that protected wives, mothers, widows and all women in general on the grounds that it was making women second class citizens. In their eyes, if women could leave their families to pursue careers and enjoy equality with men by being sexually promiscuous all would be better. The prominent feminist leaders of the time believed that housework and the care of young children was holding women back. If only society would do away with the “terrible” protective legislation and treat women like men then, they claimed, would women truly be free. Quoting Germaine Greer once again:
“Men argue that alimony laws can cripple them, and this is obviously true, but they have only themselves to blame for the fact that alimony is necessary, largely because of the pattern of granting custody of the children to the mother. The alimonized wife bringing up the children without father is no more free than she ever was…If independence is a necessary concomitant of freedom, women must not marry.”[iv]
The feminists have now secured almost every single legal and cultural change they sought, and men’s groups jumped on board to exploit it all to their advantage. Yet, in looking around today at the situation young women, older women, wives and mothers find themselves in it does not look good. I have yet to see a case where the feminist way has actually made women free. Quite the contrary.- feminism has given away a woman’s bargaining power in every area of life. In the old days, many babies were not conceived in marriage but most were at least born into it because of the social and legal pressures on BOTH parties. If a marriage did not take place after a pregnancy occurred the unwed mother would not be entitled to benefits and the unwed father would have no claim to the child. Now that illegitimacy is accepted both culturally and legally, women have lost their power to demand commitment and support from men. Today’s men know they do not have to marry a girl once she becomes pregnant for all the rights and pleasures that were once reserved solely for married men who took on traditional responsibilities for a wife and children are now freely given to them.
Feminism and the sexual revolution has really messed women and girls up real bad. They are pressured into sex by their boyfriends and then forever regret it. Because of feminists the common law rights that once protected young women from male pressure to engage in sex are gone. Traditional laws protected women and sent a clear message to the male that he was responsible. For instance, traditional statutory rape laws punished the man (as he was the only party who would walk free from basically all of the consequences of the sexual act) but protected the young woman. But, of course, this was “sex discrimination” and feminists did not stop until every jurisdiction gender-neutralized these laws.
Another problem we have as a result of widespread illegitimacy is the welfare culture that is turning us into a socialist state where everyone eventually becomes equally poor and equally bad off. For a young woman whose life at home is bad she knows an option available to her is to have a child and collect the resulting welfare that is freely given to her. One can hardly blame a woman for wanting to get out on her own and have a family. I myself understand as I had a child very young. The only difference is that I married the father and now many years later am still married to him and living a very stable life where our children can be raised. But the majority of young women today do not get these options. Generally when a young woman becomes pregnant today the father denies all responsibility or the two simply cohabit for a time and collect welfare as our tax laws penalize marriage and the welfare benefits are greater when couples cohabit and unwed fathers can claim rights at any time they want to regardless of whether they marry the mother or not.
It is the old saying of “if you subsidize something you will get more of it. “With a tax system that rewards marriage and strict laws against illegitimacy a young woman could marry the father of her child without losing anything. Moreover, taking away the free pass that unwed fathers get today would lead many to consider heavily the decision to marry the mother and take responsibility for her and the child.
Now unwed fathers do not have a complete “free pass” as they still are responsible for some child support, but very few actually pay their dues. Men evading responsibility is not a new thing but the feminist movement has stripped women’s bargaining power greatly in this area. The maternal preference that protected mothers of young children in custody disputes no longer exists. A man wishing to evade responsibility today has many options at his disposal that his male ancestors did not. Joint custody laws allow him to completely be off the hook for child support as our laws now assume both parents will then equally assume responsibility for both the care and support of the child (another feminist fantasy that simply has not panned out in reality). Men’s groups were the most adamant about joint custody laws in the late 70s and 80s, often disguising their intentions so as not to arouse opposition from the public, but feminists championed them too as it would “free” women from the responsibility of caring for children all the time so they could pursue their careers and gain equal economic power to men. Also, the threat of a custody battle (where the outcome can never be known as there are no clear guidelines and both parents have an equal shot at custody and even support thanks to the feminist movement) causes many women to decide it is best to just support the child alone.
To restore stability to society and protect the sanctity of the family, the current legal and cultural climate must be changed. Illegitimate births must be de-legitimized once again. Promiscuity and divorce is not freedom. Cohabitation is not freedom. A woman will be used and tossed aside. She will waste her youth on a career and cohabiting with several lovers only to find in the end that she is not on equal terms with men and while his desirability may increase with time, hers will not. If a society is to be civilized and prosperous, stigma and penalties must be attached to sexual promiscuity and illegitimacy.
[i] STANLEY v. ILLINOIS, 405 U.S. 645 (1972) 405 U.S. 645
[ii] Roberton, B.C., “Force Labor: What’s Wrong With Balancing Work and Family,” p. 19;28. Spence, 2002.
[iii] Greer, G., “The Female Eunuch,” p. 359. HarperCollins, 1970, 1971.
[iv] ibid., p. 358-359
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