News Release: Faculty Experts, Law, Religion and Ethics

Apr. 30,  2009

Cost of Illegitimacy Soaring, Says Emory Law Professor

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For nearly 2000 years, religious and secular laws have wrongly judged illegitimate children by the sexual impropriety of their parents, and it is high time for modern-day parents, not children, to be held accountable, says Emory University law professor John Witte, Jr. in his new book "The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered" (Cambridge University Press, 2009). 

"There are no illegitimate children, only illegitimate parents," says Witte, Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and director of Emory's Center for the Study of Law and Religion (CSLR). The book, his 23rd, is a product of the CSLR's "Christian Jurisprudence" research project sponsored by the Alonzo L. McDonald Agape Foundation and the Lilly Endowment, Inc.

Now that the stigma of illegitimacy has disappeared, rates of children born out of wedlock are skyrocketing: 38 percent of all American children are born illegitimate, and illegitimacy rates have more than doubled since 1975. The cost to American taxpayers, according to the Institute for American Values, is $112 billion annually for anti-poverty, criminal justice, education programs and in lost tax revenues.

"If the historical doctrine of illegitimacy was a Christian theology of sin run amuck, this new form of illegitimacy is a constitutional theory of sexual liberty run wild," says Witte, a renowned expert in legal history.

While endorsing constitutional protections of sexual liberty and privacy, Witte argues that government should enforce a "much firmer imposition of ongoing civil responsibility for the care and support of an innocent child born of such conduct." This includes aggressive paternity and maternity suits and laws that compel payments of child support for non-custodial parents. "Sex may be free," he writes, "but children are not."

Much of Witte's book is a careful analysis of the development of the historical doctrine of illegitimacy from antiquity to today. Under such chapter headings as "Woe to bastards," "The wages of sin" and "Heir of no one," Witte examines the doctrines and definitions of illegitimacy that have long led to systematic discrimination and deprivation of these children.

Traditionally, any child born out of lawful wedlock was deemed a bastard: the product of fornication, adultery, concubinage, incest, prostitution or other sexual crime and sin. "A bastard was at once a child of no one and a child of everyone—born without name and without home, the perennial object of both pity and scorn, charity and abuse, romance and ribaldry," writes Witte. "For many centuries, bastards lived in a sort of legal limbo…assuming they escaped the not so uncommon historical practice of being secretly smothered or exposed upon birth."

Overall, the doctrine of illegitimacy does not sit well with biblical teachings of individual accountability and Christian community, Witte concludes, identifying a number of passages in the Hebrew Bible and New Testament that condemn illegitimacy and vicarious liability. "Conservative churches today that want to resurrect the doctrine of illegitimacy might do well to remember that Jesus himself was regarded as illegitimate in his own day and was yet cherished by his parents, both human and divine." 

Nor does the doctrine of illegitimacy fit the democratic principles of equality, dignity and justice for all, especially for the innocents. "All persons are created equal," regardless of their birth status, Witte argues. And they are equally entitled to "life, liberty and the pursuit of happiness."  "No child in a nation with our wealth and values should be left uninsured, undernourished or poorly educated. But we need a much better organized and advertised state and federal system of holding parents financially accountable for the children they bring into the world. That will do much to deter irresponsible sex and to promote responsible childbearing within marriage," Witte says.

The Center for the Study of Law and Religion (CSLR) at Emory University is home to world-class scholars and forums on the religious foundations of law, politics, and society. It offers first-rank expertise on how the teachings and practices of Christianity, Judaism, and Islam have shaped and can continue to transform the fundamental ideas and institutions of our public and private lives. The scholarship of CSLR faculty provides the latest perspectives, while its conferences and public forums foster reasoned and robust public debate.

Originally posted on April 28, 2009

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