Antioch Law Journal


Martha T. Zingo


Between 1968 and 1980 the Supreme Court decided twenty cases' involving statutory classifications based on illegitimacy. The Court's decisions have determined whether discrimination against those individuals deemed illegitimate by law2 constitutes a denial of equal protection. When these decisions are analyzed it seems apparent that the Court was experiencing some difficulty in determining the appropriate constitutional test to apply to illegitimacy statutes. It is not surprising that the Court's various rulings appear inconsistent. The purpose of this article is to examine the Supreme Court's inconsistent decisions in its equal protection analysis of laws affecting illegitimate children. To accomplish this goal, it is necessary first to consider the decisions of the Court; second, to identify the constitutional tests employed; and third, to investigate the stance advocated by each Supreme Court and its significance. This article will demonstrate, through statistical analysis, the voting patterns of each individual justice on this issue. It follows that legislators can predict, with a fair degree of accuracy, whether a law affecting illegitimate children will withstand a constitutional challenge. This article concludes that the Court should apply strict, rather than intermediate scrutiny. Strict scrutiny would afford full predictability to lawmakers, and consistently protect illegitimate children against invidious discrimination.