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 []

Motherhood and Justice

Ann Gerhart argues that The Supreme Court needs more mothers:

But in selecting Kagan, Obama ensured that one key demographic would actually lose representation on the court, compared with its membership just a few years ago: mothers, a category in which 80 percent of American women eventually land.

It’s not like we’ve never had moms in black robes. The flinty rancher and the feminist firebrand who blazed the trail for female justices both are mothers, with five children between them. Sandra Day O’Connor and Ruth Bader Ginsburg, who joined the bench in 1981 and 1993, respectively, benefited from high-achieving husbands who held the Bible for them as they were sworn in, supported their aspirations and sacrificed for their careers. …

The women of a younger generation who stand on their shoulders, Sonia Sotomayor and, if confirmed, Kagan, are single and have no children. That’s not a judgment, just a fact, a line or two not found on their extraordinary bios. If Ginsburg is the next justice to step down, the court could be transformed into a body with no mothers — otherwise known as people who know what it’s like to come home from work and spend a night picking lice out of a kid’s hair.

For women and their climb toward social and economic parity, is this a sign of progress or a setback? And for the country and its Constitution, would more mothers on the bench change the way the laws of the land are interpreted? …

I, for one, am grateful that no one has turned up any record of a Supreme Court nominee saying, “I would hope that a wise working mother of three, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” The howls would be deafening.

Women in general are more “socially compassionate” than men, says Northwestern University social psychology professor Alice Eagly, citing her analysis of decades of research on gender difference in decision-making. As legislators, lawyers and judges, women are somewhat more likely than men to favor what we call, irritatingly, “women’s issues,” generally child care, reproductive rights, sex discrimination in the workplace, education and health care.

But differences between mothers and non-mothers? “Interesting question,” Eagly said in an e-mail. “I don’t know of any studies on this question of motherhood and decision-making.”

It seems sensible to imagine that a woman who has juggled it all — the full-time job, the kids, the housework, the aging parents — has a deeper and more instinctual grasp of the challenges facing similar women. Michelle Obama, a Princeton and Harvard Law grad like Kagan, now living in the White House with a guy who watches “SportsCenter” to chill, frequently tells her audiences of women various versions of “Look, I get it,” to loud cheers. …

To tease out any gender differences, researchers conducted a review of about 7,000 federal appeals court decisions between 1976 and 2002 and found no statistical difference in the way women and men ruled in a variety of types of cases, except one: sex discrimination.

In those cases, female judges were about 10 percent more likely to find for the plaintiff than their male counterparts, said Christina Boyd, a political scientist at SUNY-Albany and a co-author of the study. And on three-judge panels where at least one member was a woman, the men were 15 percent more likely to find for the plaintiff than on panels with only male judges.

So women do affect the law — something Ginsburg learned through experience. “Yes, women bring a different life experience to the table,” she told Emily Bazelon in an interview for the New York Times Magazine shortly before Sotomayor’s hearings. “All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.”

In saying he wants justices who have “heart” and “empathy,” and who understand “how our laws affect the daily realities of people’s lives,” Obama has invited us to ask who has a life outside work and who doesn’t. That’s hard to determine in a confirmation process that will require Kagan, like Sotomayor before her, to crimp her personality and bite her tongue.

Motherhood offers a one-word verifier. It signals a woman with an intensity of life experiences, jammed with joys and fears, unpredictability and intimacy, all outside the workplace. Much of the time, it’s the opposite of being strategic and assiduously prepared.

It’s a story we understand without needing all the details.

Neera Tanden finds these arguments “ridiculous”:

The policy initiative I worked on most with Elena at the White House was President Clinton’s child care initiative, a then-historic $20 billion investment in child care, after school, Head Start, and early learning. That’s why I find arguments by some that have criticized the president for not selecting a mother to the Supreme Court so ridiculous. There seems to be a notion that a single woman can’t represent the interests of mothers. Frankly, there were plenty of Republican members of Congress who happened to be mothers, who didn’t lift a finger to help mothers balance work and family. Now that I’m a mom, I know Elena got it because what mattered to her was drafting policies that made a concrete difference in the lives of children and helped working parents with their most important obligation.

Bella DePaulo (author of Singled Out: How Singles are Stereotyped, Stigmatized, and Ignored, and Still Live Happily Ever After and the Living Single blog) is also unhappy with Gerhart’s piece, and see also this essay of hers (h/t: Nicky Grist [bio]).

Hazal actually do maintain that fatherhood is (generally) an essential qualification for membership our Supreme Court, the Sanhedrin, and not just fatherhood, but recent fatherhood:

[תניא] אין מושיבין בסנהדרין זקן וסריס ומי שאין לו בנים ר’ יהודה מוסיף אף אכזרי וחילופיהן במסית דרחמנא אמר לא תחמול ולא תכסה עליו:1

Rashi explains that the senior has “forgotten the pain of child-rearing, and is not compassionate”:

זקן. ששכח כבר צער גדול בנים ואינו רחמני וכן סריס:

The remarkable implication is that judges, at least on the Sanhedrin, are not supposed to be mere soulless automations, rigidly applying the Law untainted by the milk of human kindness. Our previous discussions of this general topic:

And my lecture The Legitimacy of Compassion as an Influence on Judicial Decisions, which comprises much of the above material, does indeed utilize this Gemara as its starting point.

Returning to Gerhart’s thesis, Rav Ben-Zion Meir Hai Uziel actually takes precisely the opposite view; he concludes a lengthy analysis of the Halachic legitimacy of female judges (listen to my lecture on the topic) by declaring that although the institution of a policy allowing such appointments can be technically justified, it is nevertheless inappropriate:

אלא שלדעתנו מפני חשיבות של ענין דין בישראל לא נכון לעשות תקנה כזאת [לקבל נשים], שהיא פוגעת בהנהלת משק הבית הישראלי וחנוך הבנים וטפולם התמידי שאינו יכול להעשות אלא על ידי אם רחמניה שהיא צופיה הליכות ביתה, ושאין הדין יכול להיות אמת מסבות פסיכולוגיות של רגשי רחמים מרובים, שהאשה חוננה בהם, וגם מסיבת עדינות רגשותיה שהונאתה מרובה ודמעתה מצויה, אין ממנים אותה לדון דאחד מתנאי הדיין הוא: אנשי חיל, גדולים בחכמה ואמיצים ברוחם, שמקימים לא תגורו מפני איש כי המשפט לאלקים הוא.

Rav Uziel argues, in diametric opposition to Gerhart, that motherhood is actually a hindrance to proper justice (in addition to the deleterious effect that jurisprudence will have on her domestic character): “the Law [produced by a female judge] cannot be true due to psychological causes of feelings of great compassion, with which Woman is graced, and also due to the cause of the delicacy of her feelings, for her emotional hurt [heb. הונאתה] is great and her tears come easily, we do not appoint her to judge, for one of the qualifications of the judge is: men of valor, great in wisdom and brave [Heb. אמיצים] of spirit, who fulfill [the charge of the verse] “ye shall not be afraid of the face of man; for the judgment is God’s:”

We close with this fascinating exchange, from the pages of Binah magazine, about the personal and professional life of the most famous female judge in Jewish history:

Devorah Haneviah was a leader of Klal Yisrael, but the passuk says, “ad shekamti Devorah, shekamti eim beYisrael.” Devorah’s primary role and her greatest pride was not her prophecy or prominent position, but rather her motherhood.2

The author explains the passuk “ad shakamti Devorah, shakamti eim b’Yisrael – until I, Devorah, arose; I arose as a mother in Yisrael” (Shoftim 5:7) as referring to, and attributing the highest significance to, Devorah’s status as a biological mother and her career as mother to her own children. Is there a source for this explanation?

The classic meforshim who explain this passuk – Ralbag, Metzudas Dovid, and Malbim – explain eim, “mother”, as referring to various aspects of Devorah’s leadership of Klal Yisrael: as a maternal leader, a “parent” who rebukes Klal Yisrael, as well as a metaphorical biological mother of Yisrael, due to her saving them from Sisrah. Targum Yonasan goes so far as to translate the phrase as “until I was sent to prophesy for Yisrael,”, with no mention of a maternal connotation. Indeed, it would be difficult to understand why the passuk would be praising Devorah as a “private” mother in the context of her shirah on the salvation of Klal Yisrael.

I would be interested to know if there is an authoritative source that explains this passuk as referring to Devora as a “real” mother, as the author states, rather than as a leader. Otherwise, it would seem that the explanation in the article was an extension of the author’s personal views on the subject, rather than an accurate interpretation of the passuk and the portrayal of Devorah HaNeviah in Tanach.3

I heard the pshat on Shiras Devorah from Mrs. Devorah Leah Silberberg, Rav Gedalia Schorr’s daughter, who is a well-known mechaneches is Eretz Yisrael. After receiving your letter, I presented it to Rav Yisroel Dovid Schlesinger from Monsey, N.Y. who verified its veracity for me.4

I think it is clear who has the better of this interchange.

  1. סנהדרין לו: – קשר []
  2. Liba Cohen, Up Against the Tide, in Binah Vol. 4 No. 181 (19 Iyar 5770 / May 3, 2010) p. 53. []
  3. Letter to the editor from R. Reich, ibid. Vol. 4 No. 185 (18 Sivan 5770 / May 31, 2010) p. 14. []
  4. Liba Cohen, ibid. p. 15. []