Presumptions Of Legitimacy and and Illegitimate Presumptions

For C.S., who brought Michael H. to my attention and noted its importance to modern American paternity jurisprudence.

We have recently been discussing conclusive presumptions in law and Halachah; an oft-touted example of such a presumption in American law, apparently originating in the English common law tradition, is the presumption of legitimacy, the presumption that the child of a married woman was fathered by her husband:

The law has always been concerned with paternity. Paternity was critical to the succession of monarchs and the inheritance of property. Paternity was a moral issue because of the church’s insistence on fidelity in marriage and celibacy outside marriage. Infidelity could mean disgrace for a man and death for a woman. The moral taint was so strong that law punished the child as well as the mother:

All the disabilities of bastardy are of feudal origin.1 With us it is of Saxon origin. The term bastard being derived from a Saxon word, importing a bad, or base, original. The disabilities of bastardy are the same under the civil as under the common law, and in all ages and nations. He has no ancestor; no name; can inherit to nobody, and nobody to him;2 can have no collaterals nor other relatives except those descended from him. He can have no surname, until gained by reputation. (Stevesons’s Heirs v. Sullivant, 1820)

The stigma of bastardy lasted a lifetime and could blight the lives of the next generation, as witnessed by the heraldic bend (or bar) sinister on the family crest, designating bastardy. In addition to inheritance, a bastard was denied entrance into several callings and certain civil rights. These harsh laws persisted until relatively recent times in England and the United States. The stigma of bastardy was such that the common law developed legal presumptions in favor of legitimacy. …

Halachah, too, has a strong presumption of legitimacy, with a similar (albeit disputed) exception for a husband with no access to his wife (although we require a twelve month separation, rather than nine months):

האשה שהיה בעלה במדינת הים ושהה שם יותר מי”ב חדש וילדה אחר י”ב חדש הולד ממזר, שאין הולד שוהה במעי אמו יותר מי”ב חדש. ויש מי שאומר שאינו בחזקת ממזר. וכיון דפלוגתא היא הוי ספק ממזר:

הגה: אבל תוך י”ב חדש אין לחוש, דאמרינן דאשתהי כל כך במעי אמו …

אשת איש שיצא עליה קול שהיתה מזנה תחת בעלה והכל מרננים אחריה, אין חוששין לבניה שמא הם ממזרים שרוב בעילות תולים בבעל. … ואם היא פרוצה ביותר חוששין אף לבנים:

הגה: ומכל מקום היא נאמנת לומר על בניה שהם כשרים …3

הגה: … אם זנתה תחת הבעל, אפילו אומרת של פלוני הוא והוא ממזר אין חוששין לדבריה, דתולין רוב בעילותיה בבעל וכשר, ומותר בקרובי אותו פלוני שאומרת עליו:4

As we see, Halachah adds one additional important exception to the presumption of legitimacy, the case of פרוצה ביותר, although there is some debate about this, and some authorities rule that this is limited to the context of the special priestly prohibitions (איסורי כהונה), or even that it merely results in the stigma of family blemish (פגם משפחה), but has no strictly legal consequence.5

As to whether Halachah views this presumption as irrebutable, the question would have been moot until fairly recently, since there would generally have been no method to reliably ascertain that the father of a married woman’s child was someone other than her husband. Nevertheless, I know of no reason to assume that Halachah considers the presumption conclusive, and as we have seen, Rav Elyashiv seems to take for granted that a D.N.A test could establish ממזרות (although as we shall see, at least some legal regimes that establish conclusive presumptions of paternity do make exceptions for D.N.A. tests, at least under certain circumstances).

The classic discussion of the legal presumption of a husband’s paternity of his wife’s child is the Rehnquist Court’s 1989 decision in Michael H. V. Gerard D., in which Justice Antonin Scalia, writing for the Court, upheld Californian law declaring this presumption to be generally irrebutable:

Under California law, a child born to a married woman living with her husband is presumed to be a child of the marriage. Cal.Evid.Code Ann. § 621 (West Supp.1989). The presumption of legitimacy may be rebutted only by the husband or wife, and then only in limited circumstances. Ibid. The instant appeal presents the claim that this presumption infringes upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the constitutional right of the child to maintain a relationship with her natural father. …

The California statute that is the subject of this litigation is, in substance, more than a century old. California Code of Civ.Proc. § 1962(5), enacted in 1872, provided that “[t]he issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.” In 1955, the legislature amended the statute by adding the preface: “Notwithstanding any other provision of law.” 1955 Cal.Stats., ch. 948, p. 1835, § 3. In 1965, when California’s Evidence Code was adopted, the statute was codified as § 621, with no substantive change except replacement of the word “indisputably” with “conclusively,” 1965 Cal.Stats., ch. 299, § 2, pp. 1297, 1308. When California adopted the Uniform Parentage Act, 1975 Cal.Stats., ch. 1244, § 11, pp. 3196-3201, codified at Cal.Civ.Code Ann. § 7000 et seq. (West 1983), it amended § 621 by replacing the word “legitimate” with the phrase “a child of the marriage” and by adding nonsterility to nonimpotence and cohabitation as a predicate for the presumption. 1975 Cal.Stats., ch. 1244, § 13, p. 3202. In 1980, the legislature again amended the statute to provide the husband an opportunity to introduce blood-test evidence in rebuttal of the presumption, 1980 Cal.Stats., ch. 1310, p. 4433; and in 1981 amended it to provide the mother such an opportunity, 1981 Cal.Stats., ch. 1180, p. 4761. In their present form, the substantive provisions of the statute are as follows:

Ҥ 621. Child of the marriage; notice of motion for blood tests
  • “(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.
  • “(b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.
  • “(c) The notice of motion for blood tests under subdivision (b) may be raised by the husband not later than two years from the child’s date of birth.
  • “(d) The notice of motion for blood tests under subdivision (b) may be raised by the mother of the child not later than two years from the child’s date of birth if the child’s biological father has filed an affidavit with the court acknowledging paternity of the child.
  • “(e) The provisions of subdivision (b) shall not apply to any case coming within the provisions of Section 7005 of the Civil Code [dealing with artificial insemination] or to any case in which the wife, with the consent of the husband, conceived by means of a surgical procedure.” …

While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during, and born into, an existing marriage was begotten by someone other than the husband and had a prior relationship with him. As the Court of Appeal phrased it:

” ‘The conclusive presumption is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.’ ” 191 Cal.App.3d, at 1005, 236 Cal.Rptr., at 816, quoting Vincent B. v. Joan R., supra, 126 Cal.App.3d, at 623, 179 Cal.Rptr., at 10.

Of course the conclusive presumption not only expresses the State’s substantive policy but also furthers it, excluding inquiries into the child’s paternity that would be destructive of family integrity and privacy.

This Court has struck down as illegitimate certain “irrebuttable presumptions.” See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). Those holdings did not, however, rest upon procedural due process. A conclusive presumption does, of course, foreclose the person against whom it is invoked from demonstrating, in a particularized proceeding, that applying the presumption to him will in fact not further the lawful governmental policy the presumption is designed to effectuate. But the same can be said of any legal rule that establishes general classifications, whether framed in terms of a presumption or not. In this respect there is no difference between a rule which says that the marital husband shall be irrebuttably presumed to be the father, and a rule which says that the adulterous natural father shall not be recognized as the legal father. Both rules deny someone in Michael’s situation a hearing on whether, in the particular circumstances of his case, California’s policies would best be served by giving him parental rights. Thus, as many commentators have observed, see, e.g., Bezanson, Some Thoughts on the Emerging Irrebuttable Presumption Doctrine, 7 Ind.L.Rev. 644 (1974); Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee Prohibited, Neutral, and Permissive Classifications, 62 Geo. L.J. 1071, 1102-1106 (1974); Note, Irrebuttable Presumptions: An Illusory Analysis, 27 Stan.L.Rev. 449 (1975); Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974), our “irrebuttable presumption” cases must ultimately be analyzed as calling into question not the adequacy of procedures but-like our cases involving classifications framed in other terms, see, e.g., Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965)-the adequacy of the “fit” between the classification and the policy that the classification serves. See LaFleur, supra, 414 U.S., at 652, 94 S.Ct., at 802 (Powell, J., concurring in result); Vlandis, supra, 412 U.S., at 456-459, 93 S.Ct., at 2238-2240 (WHITE, J., concurring), 466-469, 93 S.Ct., at 2243-2245 (REHNQUIST, J., dissenting); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). We therefore reject Michael’s procedural due process challenge and proceed to his substantive claim.

Scalia endorses the argument of the appellate court that California law is really establishing a דין of paternity, irrespective of the biological מציאות; Justice William J. Brennan, in a dissent joined by Justice Thurgood Marshall and Justice Harold Andrew Blackmun, rejects this as specious sophistry:

Gerald D. and the plurality turn a blind eye to the true nature of § 621 by protesting that, instead of being a conclusive presumption, it is a “substantive rule of law.” Ante, at 119. This facile observation cannot save § 621. It may be that all conclusive presumptions are, in a sense, substantive rules of law; but § 621 then belongs in that special category of substantive rules that presumes a fact relevant to a certain class of litigation, and it is that feature that renders § 621 suspect under our prior cases. To put the point differently, a conclusive presumption takes the form of “no X’s are Y’s,” and is typically accompanied by a rule such as, “. . . and only Y’s may obtain a driver’s license.” (There would be no need for the presumption unless something hinged on the fact presumed.) Ignoring the fact that § 621 takes the form of “no X’s are Y’s,” Gerald D. and the plurality fix upon the rule following § 621-only Y’s may assert parental rights-and call § 621 a substantive rule of law. This strategy ignores both the form and the effect of § 621.

In a further effort to show that § 621 is not a conclusive presumption, Gerald D. claims-and the plurality agrees, see ante, at 119-that whether a man is the biological father of a child whose family situation places the putative father within § 621 is simply irrelevant to the State. Brief for Appellee 14. This is, I surmise, an attempt to avoid the implications of our cases condemning the presumption of a fact that a State has made relevant or decisive to a particular decision. See, e.g., Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Yet the claim that California does not care about factual paternity is patently false. California cares very much about factual paternity when the husband is impotent or sterile, see Cal.Evid.Code Ann. § 621(a) (West Supp.1989); it cares very much about it when the wife and husband do not share the same home, see Vincent B. v. Joan R., 126 Cal.App.3d, at 623-624, 179 Cal.Rptr., at 11; and it cares very much about it when the husband himself declares that he is not the father, see Cal. Evid.Code Ann. § 621(c) (West Supp.1989). Indeed, under California law as currently structured, paternity is decisive in choosing the standard that will be used in granting or denying custody or visitation. The State, though selective in its concern for factual paternity, certainly is not indifferent to it. More fundamentally, California’s purported indifference to factual paternity does not show that § 621 is not a conclusive presumption. To say that California does not care about factual paternity in the limited circumstances of this case-where the husband is neither impotent nor sterile nor living apart from his wife-is simply another way of describing its conclusive presumption.

  1. Our laws of ממזרות date back to the Biblical and Talmudic eras, and have nothing to do with feudalism. []
  2. Our laws of inheritance do not in any way discriminate against a ממזר; see, e.g., Shulhan Aruch Hoshen Mishpat 276:6. []
  3. שלחן ערוך אה”ע סימן ד’ סעיפים י”ד-ט”ו []
  4. שם סעיף כ”ו בהגה []
  5. עיין בית שמואל שם ס”ק כ”ו ובאוצר הפוסקים ס”ק ס”ח אותיות א’, ז-ט []
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3 Responses to Presumptions Of Legitimacy and and Illegitimate Presumptions

  1. CS says:

    Thanks for the dedication!

  2. NAB says:

    The New York Times ran an interesting piece on this:

    http://www.nytimes.com/2009/11/22/magazine/22Paternity-t.html?scp=1&sq=who%20knew%20I%20was%20not%20the%20father&st=cse

    “Of course, the men who take the tests already question their paternity, and for about 30 percent of them, their hunch is right. Yet as troubled as many of them might be by that news, they are even more stunned to discover that many judges find it irrelevant. State statutes and case law vary widely, but most judges conclude that these men must continue to raise their children — or at least pay support — no matter what their DNA says. “

    • Yitzhak says:

      Thanks – I actually had that link opened in a browser tab, and had meant to read it and mention it in the post, but I forgot. I subsequently read it and have been meaning to update the post …

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