Sure it does. The poor fit suggests that this if after the fact rationalization rather than underlying policy rationale.
Which is more than offset by the fact that your offered alternative rationale, that this is somehow part of a conspiracy to punish men, doesn’t have any historical basis and doesn’t make any sense. Let me illustrate:
Texas used to have exactly the law that you propose, allowing children born in wedlock child support and denying it to all others (in fact, almost everywhere that had child support laws followed that rule, as that was the common law rule). The issue of Equal Protection for illegitimate children was raised, and Texas fought it all the way to the U.S. Supreme Court. Texas wasn’t required to do so, and wasn’t even a party; the state voluntarily filed an amicus brief arguing that the state law should stand and that illegitimate children shouldn’t receive support. The state’s argument wasn’t based on any kind of “well, men should have rights too” issue, because they knew that argument had no legs and wasn’t relative to the child’s Equal Protection claim. Instead the state argued that determining paternity and enforcing against fathers who had never acknowledged children would be unduly financially burdensome on the state. Texas lost, and was faced with the choice of including illegitimate children in child support laws or scrapping child support altogether.
Now, after fighting for exactly the law that you propose all the way to the U.S. Supreme Court, do you think that the state just suddenly, completely changed its mind on the issue, did a 180 and decided to enact a law giving child support to illegitimate children solely for the purposes of “punishing men?” That’s just silly. They changed it because they lost. The state enacted the law giving all children child support because the alternative was to do away with child support altogether, which would cost the state much more than it would save. There’s no ulterior motive of enforcing morality here, just a simple cost-benefit anaylsis.
I don’t remember saying that there was an ulterior motive. I am saying taht there is an inequitable effect when you hold reluctant fathers to the same standard as you hold willing fathers in the support of biological children.
States always have an interest in preserving their laws.
Roe v Wade had not been decided by then. It is the women’s right ot an abortion created out of whole cloth by Roe V Wade that makes the this situation unfair.
I don’t understand what your example is supposed to prove. So we have a state that was told to change its laws to remove the distinction between child support for legitimate children and illegitimate children and it did so. If youa re asking me whether I think it would be a greater injsutice to eliminate child support entirely in all cases or to continue the current situation, then i would agree that the greater injustice would be eliminate it entirely.
I make a distinction between men who have children they agree to support then change their minds later and want to walk away from responsibilities that they agreed to and men who get a woman pregnant, tell the woman, he doesn’t want the baby and won’t support the baby.
That’s what the word “rationalization” means. You honestly don’t recall that you’ve claimed repeatedly throughout this entire thread that all the reasons that the law provides illegitimate children with child support are just rationalizations, and that the true purpose of the law is to “punish men?”
If you’re now willing to drop that that’s more than fine with me.
Whcih completely misses the point that they didn’t have to have that law in the first place. The state chose the system that you propose, and when it was challenged chose to defend it all the way up to the U.S. Supreme Court. When they lost, they changed it. Not just Texas, everybody changed it. No ulterior motive, no desire to “punish men.” The law is like that because the U.S. Supreme Court said it had to be.
Roe v. Wade and Gomez v. Perez were decided by the exact same Court within five days of each other. There is no legal confilct between the two, and no case has been filed in the last 40 something years even suggesting that there is. They don’t even deal with the same areas of the Constitution: one is an Equal Protection Case, and one is a Substantive Due Process case.
Here is what it’s supposed to prove:
- The reasons that current shild support laws are the way they are aren’t mere rationalizations for the ulterior motive of punishing men. The law used to be as you describe, the U.S. Supreme Court said that it was an Equal Protection violation, the law was changed. If you’re now willing to drop that, that’s fine.
- Every argument given in these threads for providing only “legitimate” children with child support focuses on the disparity between a woman’s ability to decide to have a baby and a man’s inability to do the same. This ignores the fact that the child, once born, is a person with rights and has a constitutional right not to be treated differently. If the argument were couched in terms of why Gomez v. Perez was wrongly decided and why illegitimate children should be treated differently that would be one thing, but every time the point gets brought up the argument quickly gets shifted back to the lack of fairness between the mother and father and the fact that the child’s mother “could have had an abortion.” That’s just not relevant to the child’s rights.
I don’t think that’s what I said (its certainly not what I meant). I didn’t say punishing men is why we have the current system, I said that the rationale being presented to defend the current system is to punish men for having sex. The argument being presented was that if men didn’t want to pay child support then they shouldn’t have sex, that sounds a lot like you want to punish men for having sex. That is an argument we do not apply to women and pregnancy.
I think you misunderstood what I have been saying.
I never said that the state is trying to punish men. I said that the argument being presented was an argument that punished men for having sex.
I’m saying that if Roe v Wade had existed during Gomez v Perez, a good lawyer for the deadbeat dad would have brought up the disparity between a woman’s right to an abortion and the lack of a man’s right to extricate himself from a pregnancy. I don’t know if the case would have come out any differently.
Gomez seems to say that you can’t distinguish between illegitimate and legitimate children, I would extend that argument and say that you can’t distinguish between men and women and as a matter of substance a woman’s right to an abortion is a right to be free from the consequences of having a child and i would distinguish the children of unwanted pregnancies from the children of wanted pregnancies. So if an unmarried couple had a child they wanted to have, the man would still be liable for child support but if the man never wanted the child, he should not be.
Once again i think you misunderstand my point about rationalization. I don’t think the states are rationalizing, I think the arguments by people on your side of the debate are.
OK I’ll bite. I’m not a constitutional scholar but I think that you can distinguish wanted children from unwanted children instead of between legitimate and illegitimate. In a country where no child goes without support (at least state support) there is no need for paternal support at all. The only reason for paternal support is so that the child can continue to live in the lifestyle that they had before their dad ran off with the babysitter.
I don’t think that men abandoning their unborn children is any more desirable than a woman killing her unborn child but in the interests of giving people autonomy over their lives under the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, it seems to me that what is good for the goose is good for the gander.
The language used in Roe includes language that this right of privacy is at least in part a right to not have children.
“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”
Roe was not decided on some clear cut principle, it couldn’t be. It was based on some nebulous right of privacy that derived from the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action. With that said, there might be a state interest in enforcing child support but that state interest begins and ends in replacing what the state would otherwise spend in supporting the child, doesn’t it? And we would have to weigh that that state interest against the biological father’s rights.
We can discuss the state’s interest if you like but the other folks on your side seem to think it is a forbidden topic on this thread.
Okay, fantastic. We are in agreement that the purpose behind the present law is not to punish men. I consider this huge progress.
A good lawyer would have done no such thing. Gomez v. Perez dealt with an Equal Protection violation as the law applied to an individual person, and bringing up the Substantive Due Process rights of another person is entirely not relevant. “Your mother could have aborted you” is not an argument to an Equal Protection claim.
The fact that there wasn’t an immediate rush back to the courthouse to argue that those two cases are in conflict and that nobody has ever argued that that point since should tell you that it most definitely would not have.
You just did exactly what I was describing: you shifted the point of why illegitimate children should or should not be treated differently under the law back to the perceived lack of fairness between the posistions of the mother and father.
No, you can’t circumvent the ruling by changing the terminology. As far as the child is concerned, there’s no functional or legal difference between being labeled “illegitimate” and being labeled “unwanted.” If that would have worked, the states would have done so.
The Court has made clear that the right to privacy is a 14th Amendment Substantive Due Process issue. Instead of discussing the state’s interest versus the father’s desires and shifting to the issue of fairness between the man and woman yet again, I’d rather hear the argument as to why Gomez was wrongly decided and why the law should treat some children differently from others.
Or, have homosexual sex. Zero risk of pregnancy!
Wow I can’t believe this thread is still going on.
And do you also agree that the arguments being presented was an argument that is based on punishing men for having sex?
I disagree. Just because the Gomez v Perez did not “deal with” equal protection, it was “based on” equal protection. There was no due process right of the sort found under Roe to “deal with” at the time of its argument. But like I said, I have little confidence that the court would have found for the deadbeat father in any case.
You keep arguing about what the courts said. I agree that the court said what it said. The debate is not “what is the law” the debate is “what should the law be” If that was how we conducted debates then we wouldn’t have any debates on abortion, I could just point to roe v wade and the debate would be over.
Yeah, I guess my point is that men have rights too. The child’s need for support can be fulfilled by the state.
Why is there no functional difference. Not all children born outside of marriage are unwanted and unsupported (voluntarily) by the father.
Your main question seems to be, how can the law or a just society distinguish between unwanted children born out of wedlock and all other children. I guess I would say that there is a difference between children that fathers agree to have and those that they do not agree to have. I posit that children born within wedlock presumptively have the promise of their father’s support and that children born outside of wedlock do not presumptively have the promise of the their father’s support. I think the unwanted illegitimate child is stuck with state support. I think the Roe v Wade right of privacy can extend to the right of a father to not have the life altering event of having a child thrust upon him.