Summer 2009: Of Note

Legitimate Children

Professor John Witte explores attitudes toward illegitimacy in Sins of the Fathers

By Mary J. Loftus

When Jonas Robitscher Professor of Law John Witte Jr. was a young boy in Ontario, the minister of his church banished a single mother and her child from the congregation with these words from the Bible: “Bastards have no place in this assembly of the Lord; even to the tenth generation none of his descendents may enter here.”

Witte remembers being shocked by this action. “How could the church banish this little baby and withhold from him the sacrament of baptism? Was fornication so much worse a sin against the Decalogue than the sins of lying, stealing, or dishonoring parents—all of which were already on my ample roll of youthful follies? Perhaps I was next out the door,” he recounts in his twenty-third book, published this year by Cambridge University Press, The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered. “Even worse, what would come of my little foster-brother, Robert, given his illegitimate birth? Surely he would be banished soon, too. I remember being terrified.”

The decision, however, proved to be controversial within the church even then, Witte says. The minister soon left, and with him went the “stark discipline and dark sermons that marked his troubled tenure.”

No doubt a young Witte felt relief that Robert, or “Ponkie,” as the Witte family called him, remained welcome—although it took several more years before the church baptized him, and the Ontario authorities never allowed the family to adopt him. Despite Robert’s abandonment by his biological parents and severe handicaps that took his life by age sixteen, he was the “best model I have ever seen of the pure faith and simple joy that become the true Christian life,” Witte writes.

Witte, director of Emory’s Center for the Study of Law and Religion and McDonald Distinguished Professor of Christianity, was left with the seed of an idea that became The Sins of the Fathers.

For nearly two millennia, posits Witte, religious and secular laws have wrongly judged illegitimate children by the sexual impropriety of their parents. 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.”

Historically, “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.”

Early rabbis and church fathers, however, worked to incorporate these children into their communities, Witte says, and commanded everyone to care for them with the help of local synagogues and churches. Later, medieval and early modern church and state hardened their stance against illegitimate children, offering them few remedies: the standing to sue their parents for support, the option of entering a monastic order, and the slender possibility of legitimization or adoption. The English common law was even firmer, as Henry VIII found out in his futile attempt to legitimize his “bastard son” to be his successor to the throne. Under English common law, a child was either born in marriage and was legitimate or was born outside of marriage and, thus, was not. “Illegitimacy was tantamount to an immutable condition like gender or race; it could not be undone,” Witte says.

During the colonial era, England’s laws of illegitimacy were carried over into the New World. After the Revolution, Americans began to reform these laws in favor of the rights of the child, as, eventually, did much of the modern Western world. “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,” says Witte, “and was yet cherished by his parents, both human and divine.”