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The presumption of legitimacy is one of Euro-American family law’s most venerable doctrines. Under this well-known rule, a woman’s husband is presumed to be the father of any child conceived during marriage. Throughout the ages, the substance of the doctrine has been remarkably consistent: With relatively modest changes, it can be traced from Roman law through Canon Law, Civil Law, and the Common Law—and until recently, into the parentage statutes of a majority of U.S. states. But, as Susan Appleton correctly observed nine years ago,1 this ancient rule is now at a crossroads. On the one hand, it has been eroded by the rise of genetic paternity tests and the demise of laws that discriminate against children born out of wedlock. On the other hand, it has been given a second wind by extension to same-sex married couples and couples who use ART, who vigorously guard its value as a protection for their children. As a result, we are now at a particularly useful vantage point to review the promises of the presumption itself.

A new article shines light on the presumption and its many meanings. As Andrew Counter illustrates in Always Uncertain, the ideological underpinnings and consequences of the presumption have varied “enormously” in different places and times.

Counter’s analysis of the cultural and legal development of the presumption of legitimacy focuses primarily on his readings of two texts—Guy de Maupassant’s short story Monsieur Parent (1885) and the record of Michael H. v. Gerald D. (1989).2 In Monsieur Parent, the eponymous character learns that his wife Henriette has been unfaithful with family friend Limousin, and that Georges, his only child, may be the fruit of that affair. After the liaison is discovered, Monsieur Parent turns Henriette and Georges out of the house, but is haunted by the realization that no one will ever know whether Georges was his biological child. In Michael H. v. Gerald D., Victoria D. was born to Carole D., who was married to Gerald D. However, Carole had an extramarital partner, Michael H., who obtained blood tests indicating that he was almost certainly the child’s biological father. Michael claimed that California’s presumption of legitimacy was unconstitutional, but his claim was rejected by the Supreme Court.

Counter’s article begins by deftly situating each of these texts within the broader cultural and legal contexts from which they emerged. As he explains, the presumption of legitimacy was codified into French law in Article 312 of the French Civil Code of 1804. Because the presumption was intended to eliminate the inherent uncertainty in determining a child’s father, it was “extremely difficult to rebut.” (P. 68.) In order to successfully challenge the paternity of a child born during marriage, a litigant would have to show “the impossibility of cohabitation between the spouses for the entire period,” “that the husband had been rendered impotent by an accident after the marriage,” or “that the wife had committed adultery … and had concealed … the birth from the husband and had been separated from him at the time.” (P. 68.)

In California, meanwhile, the presumption of legitimacy was codified in 1872. In addition to the standard exceptions for the impossibility of cohabitation and the husband’s impotence, California courts initially allowed the presumption to be rebutted upon a showing that “the child is of a race or color such that it could not have been conceived by the husband.” (P. 69.)3 As Counter wryly notes, this exception was “doubtless undergirded by motives less noble than a mere judicial love of truth.” (P. 69.) But it also indicated that California courts were willing “to admit as evidence what was, so to speak, evident”—“to permit rebuttal of the presumption where it was manifestly inaccurate.” (P. 69.)

Against this legal backdrop, Counter presents two major historical shifts in the presumption’s premises. First, Counter notes that when France’s Article 312 was codified, it was not justified by the same concerns that had been invoked in an earlier era to defend similar measures in Roman law: It was presented as a measure to protect a child’s right to his father’s support, rather than a measure to safeguard a father’s property rights to his legal offspring. Drawing on Durkheim’s analysis, Counter explains that, during this period, “the protection extended to the child here is understood primarily as protection from repudiation by… the presumptive father … hence the state’s primary interest is seen to be to force its father and mother to acknowledge it.” (P. 70.)

Next, Counter observes that in California the emergence of early testing based on blood types in the 1960s allowed litigants to exclude at least some men as possible fathers. Interestingly, however, California courts immediately began rejecting this evidence as a threat to the integrity of married families. By the late 1960s, moreover, these courts began to repudiate earlier dicta that had allowed proof of racial differences to rebut the presumption in particular cases. In a period of only ten years, the courts had transformed a doctrine of legal epistemology into a doctrine of “family integrity”: Instead of serving as a rule of evidence that could be rebutted, the presumption now operated as an “‘overriding social policy’ whereby the legislature preferred children to be raised by married couples”—no longer a procedural substitute for proof, but now a “substantive rule of law.” (P. 70.)

While these historical insights are significant, they only scratch the surface of what Counter’s article offers. Above all, Always Uncertain provides the sheer pleasure of close readings in law and literature—his comparisons of the principal characters in Monsieur Parent and Michael H. are unforgettable. Throughout the article, Counter deploys familiar tropes from both literary and historical criticisms of legal texts, but he never allows himself, or the reader, to get too comfortable within them.

For example, Counter’s analysis of the presumption’s historical development in both France and California casts doubt on the accuracy of Justice Scalia’s own historical analysis in Michael H., which was critical to his rejection of Michael H.’s constitutional claims. When Justice Scalia turns to the historical record, he reports: “we have found nothing in the older sources … addressing specifically the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man.” (P. 77.)4 In a “slippery footnote,” Justice Scalia treats this absence of authority as a “specific tradition [which] unqualifiedly denies protection to such a parent”—a claim that Counter views as “far-fetched for a number of reasons.” (P. 77.)5 First, paternity could not be proven in the nineteenth century; second, adultery was a crime in most jurisdictions; third, nineteenth century jurists took an “unsentimental view of paternity,” regarding it as “a set of, mostly financial, duties.” (P. 77.) “From a legal point of view,” Counter concludes, “Michael H. … had simply never existed before.” (P. 77.)

For a moment, Counter’s analysis seems reminiscent of historical critiques of judicial opinions—most notably Anne Goldstein’s famous analysis of Justice White’s opinion in Bowers v. Hardwick.6 But rather than dwelling too long on this historical payoff, Counter briskly turns back to his literary analysis: After noting that “Michael H. … had simply never existed before,” he observes that “what the law cannot imagine is not necessarily unimaginable to literature.” (P. 77.) In a remarkable move, Counter explains that, in Monsieur Parent, the character of Limousin offers an anticipatory vision of Michael H.—a mode of family life that Justice Scalia was unwilling to entertain, one hundred years later. As Counter explains, Limousin represents “an accomplice to adultery … who … comes forward to raise (what he takes to be) his illegitimate child.” (P. 78.)

Here, too, Counter manages to avoid analytical clichés, while squeezing astonishing insights from his legal and literary texts: Rather than suggesting that literature always liberates—by imagining what the law cannot afford to—he observes the ways in which both texts offer “conservative” accounts of what happens when husbands and wives engage in “unconventional behavior.” (P. 78.) Moreover, he reasons, both texts imply that such consequences are “inevitable … where female sexual liberty is not restrained.” (P. 79.) While de Maupassant brands Henriette “a harridan, a hypocrite, and a … tramp,” (P. 79.)7 Justice Scalia is more subtle in his critique, noting that Carole D. is “an international model”—a woman who has brought her daughter to live not only with her husband Gerald but also with her adulterous lover Michael and with “yet another man” as well. (P. 79.)8 And finally, Counter notes that Gerald D. represents a figure that even Maupassant could not have imagined—“the happy cuckold, the husband who is willing knowingly to élever les enfants des autres (“raise the children of others”).” (P. 79-80.) In Counter’s account, Gerald D. signifies the arrival of a man who understands paternity as “a fundamentally affective experience in which biological fact is incidental (or, much as it is for California law, “irrelevant”).” (P. 80.)

In his closing remarks, Counter leaves no stone unturned in his criticism of the presumption’s operation in both literature and law, then and now. While he admits that “the meaning of the presumption may have changed entirely between 1885 and 1989,” he suggests that the two texts reveal “the same abiding possibility: that the family itself might, or indeed must, be the site of an exclusion, that it is predicated … on ‘bolted doors’ and the ‘jealous possession of happiness.’” (P. 80.)9 In both narratives, he notes, “the person who finds himself the victim of this exclusion—Michael H., M. Parent—is rendered abject.” (P. 80.) Although M. Parent initially turned out his wife and legal child, the story later describes him “as an outlaw, living une vie de forçat (“a convict’s life”) and following his hated wife around like a voleur (“thief”) … the outsider who threatens the [new family’s] tranquil enjoyment.” (P. 81.) In Counter’s view, “These moments exemplify that chilling familialist tendency to attribute perversity to those who have been excluded from the ‘blessings’ of family life, even against their will” (P. 81)—and more fundamentally, “the power of bourgeois familialism to subvert subversion, to define the terms even of transgressive desire itself.” (P. 82.) After all, Counter laments, Michael H. wanted nothing more than “the right to act as a father to his biological offspring.” (P. 82.) Marking out the limits of the presumption’s premises in both narratives, Counter concludes: “It is surely a bad day indeed for non-conformity when such a desire can be considered non-conformist; though worse still, of course, when the right not to conform is found not even to stretch that far.” (P. 82.)

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  1. Susan Frelich Appelton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 Boston L. Rev. 227, 228 (2006).
  2. 491 U.S. 110.
  3. Quoting In re Estate of Walker, 180 Cal. 478, 491 (1919).
  4. Quoting Michael H. v. Gerald D., 491 U.S. 110, 125 (1989).
  5. Quoting id. at 125 n.6. As Counter observes, Justices Kennedy and O’Connor specifically declined to join this footnote. (77).
  6. Anne B. Goldstein, Homosexuality, History, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073 (1988).
  7. Quoting Monsieur Parent at 2: 601.
  8. Quoting Michael H. v. Gerald D., 491 U.S. 110, 113-114 (1989).
  9. Quoting André Gide, Les Nourritures Terrestres (Paris: Gallimard, 2008) (1897), 67.
Cite as: Clifford Rosky, Legitimacy’s Uncertainties: Exploring the Presumption’s Premises, JOTWELL (July 17, 2015) (reviewing Andrew J. Counter, Always Uncertain: The Presumption of Legitimacy in Two fins de siècle, 26 Law & Lit. 65 (2014)),