King Lear, a profoundly sad play, begins with a funny, gossipy exchange between two of Lear’s trusted counselors. Kent asks Gloucester if a certain handsome young man is Gloucester’s son. Gloucester responds somewhat cryptically, so Kent says “I cannot conceive you”—meaning, “I don’t get what you’re saying.” Gloucester than serves up one of Shakespeare’s favorite rhetorical devices: a sexual pun worthy of any nerdy, 14-year-old boy:
I cannot conceive you.
Sir, this young fellow’s mother could; whereupon she grew round-wombed, and had, indeed, a son for her cradle ere she had a husband for her bed.
(I.1.12-14). Gloucester goes on to acknowledge that he also has an older son “by order of law” who, despite his legitimacy, is “no dearer in [his] account” than the illegitimate one. Gloucester then provides the following arguments as to why he has equal affection for his bastard son:
- “his mother [was] fair;”
- “there was good sport at his making;” and
- “the whoreson must be acknowledged.”
In short, Gloucester makes a case for feelings that are out of joint with the law then governing this aspect of human life. His arguments aren’t exactly sophisticated. They hinge mostly on personal bias. But that last one—that “the whoreson must be acknowledged”—hints at a kind of policy argument. Gloucester seems to say that it is, perhaps, unfair for offspring to be shunned and legally disadvantaged when the offspring had nothing to do with how they appeared on the world’s stage.
Interestingly, it wasn’t until the 1970s that, through a series of SCOTUS decisions, the entrenched vestiges of the common-law of “bastardy” started to be dismantled in the U.S. See, e.g., New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (finding that limiting welfare assistance to households in which parents are ceremonially married and children are legitimate or adopted violated the equal-protection rights of illegitimate children); Richardson v. Griffin, 409 U.S. 1069 (1972) (affirming conclusion that Social Security provision entitling illegitimate children to monthly benefit payments only to extent that payments to widow and legitimate children had not first been exhausted denied illegitimates equal protection).
State and federal legislators in this country were content to continue to discriminate against illegitimates until well after their counterparts in other countries, like the common-law mothership Great Britain, abolished such practices by legislation. So litigants had to make Constitutional arguments and rely on the Supreme Court to eventually step up and protect the rights of this particular minority (which has included folks like founding father Alexander Hamilton and Apple founder Steve Jobs).
Ultimately, equal protection arguments are all about fairness, which means people are suspicious of them. They hinge on policy arguments. And the trouble is that competing policy arguments exist on both sides of any given legal issue, not just when it comes to equal-protection claims. This is because people have different notions about what will render the world fairer and whose interests should win out when it seems like a zero-sum game (such that making the world fairer for one group might mean that some other group is going to have to give something up). In any event, I tell me students that, even though policy arguments are seen as “inferior” in terms of conventional rules of construction, I believe they are almost always what really carry the day. This position may seem cynical since policy arguments are often political—or at least they reflect different visions of how best to organize the polis that are often associated with one political party or another. But the truth is, most judges, like most people, believe in fairness; and they want to believe that any given decision they make is fair—indeed, fairer than the proposed alternative. So, I think that legal arguments, even if technically unassailable, need to tap into the decision-makers’ sense of fairness or they are a tougher sell. Lawyers have to keep this in mind. Especially when two sides of an argument are clearly associated with two sides of a politically charged fight, an advocate on one side trying to get through to a decision-maker seemingly on the other side must overcome any predisposition against “bastards” by appealing to the latter’s sense of fairness—but on terms to which those inclined against bastards can appreciate.
Of course, if someone—especially someone lucky enough to wear a black robe for a living—has given up on fairness altogether, that is a different matter. Those anomalous types, who just see the judicial process as indistinguishable from any other political battle, another game to be manipulated so that a particular team, no matter the inherent justice of that team’s positions, always wins because that team is seen as furthering that person’s short-term self-interests— Well, those are the real bastards.