more powerful teacher than the present scheme which has such a haphazard relation to population. Since the practical equivalent of such a scheme seems to be found in existing indirect laws, it would seem that these laws could be given full symbolic weight by adopting them as conscious population policy. But would such an intentional change in the law be morally feasible, or even effective? If such change is rejected, what change would be preferable? Morality The test of morality here is simple: It is immoral for the law to affect the reproductive behavior of one person by penalizing another person. Specifically, it is immoral for the law to affect the reproductive behavior of parents by penalizing their child. The easy way-the way taken for at least 2,500 years is to attempt to control reproductive action by deprivations visited on the child. Such an approach was, historically, the dominant approach to childbearing outside of wedlock. Making the child so born a bastard, filius nullius, the law revenged on him the wrong done by his parents. This approach was not ineffective. At points in Anglo-American history, illegitimacy has been remarkably low. The approach also appealed to one of the strongest of primitive instincts: to identify children with their parents, to visit the sins of one generation upon the descendants in the next, to make the family corporately guilty. Modern proposals to deter childbearing by deprivations inflicted on the children share this ancient heritage, its appeal to primitive instinct, and the likelihood of success. But they are profoundly wrong in making children pay for their parents' fault. For this reason alone, the following changes in the law must be rejected: elimination of lunches, breakfasts, or milk to school children or the elimination of cash aid to needy children; the placing of economic barriers to the public education of any child; the limitation of housing for children in a large family; the reduction of the medical care given to the child in the womb and after birth. Feasibility Proposals for persuasion through injury inflicted on the children are not infeasible-the victims are not in a position to complain. Other possible changes fail the test of political viability. The introduction of confiscatory inheritance taxation for estates above the level of $200,000 might, for example, have high symbolic value in expressing governmental disapproval of family dynasties; it is unlikely that such a drastic measure would have any chance of Congressional approval. Utopian changes of various kinds must come to a halt before the common sense of representative government. Would raising the age of marriage be utopian? The ages for consent to marry were not set with population in mind. In this respect, the American laws contrast sharply with the statutes of some nineteenth century German and Swiss communities in which the demographic consequences of raising the age of marriage to 26 for women, 28 for men was a prime objective. The American laws also contrast with policy in China, where the Communist Party, on taking power, at once raised the ages of consent to 21 for men, 18 for women, and subsequently set 30 for men and 22 for women as an exemplary norm for party members.289 The American ages were largely determined by nineteenth century legislatures unconcerned with population density. No attention whatsoever has been given judicially to the check on population growth which the statutes, in effect, impose. To raise the age of marriage to, say, 25, would be to attempt to achieve magically by law what could only be achieved by a massive change in cultural values. But it might not be utopian to raise generally the age of marriage to 21. Raising the age for women to 21 in states where 21 is the age of consent for men would not be an unrealistic objective, and it would be sufficiently in accord with other cultural norms not to produce a wide discrepancy between the law and practice. It could not, under traditional conceptions of federalism, be accomplished directly by Federal law. Adoption of the Equal Rights amendment to the Constitution, however, would compel the states to treat men and women equally in this matter. Instead of lowering the age for men to 18, the states might well be induced to raise the age for women to 21. Such a legal postponement of marriage might have a modestly beneficial effect on procreation. A further test of feasibility is provided by the Constitution. Laws which invaded the fundamental right to marry would be unconstitutional by the standard established in Loving. That right extends to a penumbra of associated activities, as Boddie and Griswold have suggested. Taxing schemes, for example, which intentionally discriminated against marriage or against procreation by the married would have to justify their injury of the constitutional right and would be unfeasible if rational need for them could not be shown. In any event, it is constitutionally possible to resist lowering of the age of marriage. However, as a corollary of the lowering of the age for voting, the age of marriage may be lowered as well. Strikingly enough, in a state generally as attentive to population consequences as California, the age of marriage was lowered, in December 1971, to 18 for men.290 No attention was directed to the population impact; and, no doubt, at first the population impact will not be serious. In the long run, however, there is enough interaction between law and behavior for the lower age to have an effect. Moreover, unless resisted on the grounds of population effect, the California pattern may be accepted throughout the country. Changing the rules for exit from marriage could also be viewed as feasible, although the feasibility of accomplishing the change Federally might be questioned. Divorce statutes have never been correlated to procreation. No American statute makes childlessness ground for divorce; the number of children of the divorcing couple has no bearing on the grant of a decree. Few statutes, such as the recent New York law, provide for appointment of a representative of the children to be heard on the dissolution of the marriage. At a formal statutory level, having children cannot be used to escape divorce, nor can the avoidance of children be used to facilitate it. Sometimes a child is conceived in the hope that a new life will revive a failing marriage: In this way, the threat of divorce may act as a stimulus to precreation. Sometimes a child is conceived because the difficulties in the way of divorce deflect a spouse from divorce to a new effort within the existing marriage: In this way, unavailability of divorce may act as a stimulus to procreation. It must be a matter of speculation which case is common. Undeniably, the practical ease of divorce where there are no children may influence a couple still exploring their relationship to postpone childbearing until they are sure of their marital commitment. In this significant way, a liberal divorce law on the California model may deter procreation.291 If a statute were to be tailored to the objective, it should make divorce most easily available for couples childless in the first five years of marriage and sharply distinguish these couples from couples with children or long-married couples. No American statute draws these distinctions. To enact a Federal divorce statute might be difficult politically. It would be questionable constitutionally because marriage and divorce have always been reserved in the Federal system to the states. Perhaps the most that could be done, at a Federal level, would be to encourage experimentation by populous states. Effectiveness To change the Civil Service policy on the discharge of publicly known homosexuals would not be immoral and might be politically feasible. It is questionable, however, if such a gesture, tangibly affecting only the very small number of persons somehow publicly identified as homosexuals would have much demographic impact. The change would be too bureaucratic in character to have much general symbolic value. If changes-politically more difficult to accomplish-were also made in the Immigration and Naturalization Act, the Defense Department's industrial security rules, and the military services discharge policy, then government acceptance of homosexuals would be clearly signaled. The effect of this acceptance would depend in part on whether the number of homosexuals would ever exceed three or four percent of the population, and in part on how many homosexuals would renounce or limit heterosexual activity and procreation. It is doubtful that the effort required to make the necessary legal changes would be justified by the demographic consequences. Moral, Feasible, and Effective Change Changes in Federal law meeting all the desired criteria are these: 1. Making the distribution and advertisement of contraceptives subject only to regulation by the Food and Drug Administration, invalidating all state legislation on the subject. 2. Enacting legislation like the proposed S. 659 and funding the higher education of children from lowincome families. 3. Determining by further legislation, if necessary, that married women, older women, and women with preschool children may not be discriminated against in employment. 4. Enacting a statute recognizing a right to equal treatment by persons seeking parenthood by adoption. 5. Encouraging the postponement of marriage and procreation by scholarships and attractive Federal employment tied to celibate status. The first proposal would wipe away the vestiges of a tertiary statute supporting marriage. It should not encounter serious political opposition, or strong objection on moral grounds. It should facilitate the use of contraceptives, eliminate an obsolete sanction system, and teach a new responsibility. The second proposal is a positive approach to population, banking on human educability. The support S. 659 enjoyed in the Senate suggested that patience and strategy might win it friends in the House. The proposed Education Amendments would combat population growth morally and effectively by a combination of deferred procreation and the development of new values. It would help channel human energy in a nonprocreative direction. The third change would add the clarity which the Philipps decision has made necessary in the Civil Rights Act provisions on discrimination based on sex. Other implementation of the equal rights of women could be done by executive order in the Armed Forces. The 145 assurance of full equality for women in employment should now encounter no overt opposition. The law would constitute important Federal teaching. The fourth change could be effected by explicit amendment to Title VII of the Civil Rights Code or could be separately legislated. It would Federally canonize surrogate parenthood and accelerate recognition of the split between procreation and parenthood, sexual intercourse and parenthood. It would be a modestly effective channeling and teaching decree. The final proposal stresses both the channeling and teaching functions of law. It would reinforce the central pattern of procreation by postponing entry to it, and proclaim the Federal interest in deferring marriage. Acting constructively to strengthen marriage, it would assist in moving to a higher age the time at which procreation would begin. No single law can change the culture. Together, these proposed changes would constitute only a moderate advance in conscious Federal policy. But changes of this kind-constructive, moral, and feasible-are the necessary legal adjuncts of a wider cultural effort to moderate nationally the growth of population. REFERENCES 1. An example of the approach rejected here is the inventory made by Edwin D. Driver, "Population Policies of State Governments in the United States: Some Preliminary Observations,” Villanova Law Review, 1970, Vol. 15, pp. 818-853. 2. For an exposition of the kind of jurisprudential approach followed here, see Lon L. Fuller, "Human Interaction and the Law," American Journal of Jurisprudence, 1969, Vol. 14, pp. 1-37. 3. Oliver W. Holmes, Jr., "The Path of the Law," Harvard Law Review, 1897, Vol. 10, p. 459. 4. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 18-19. 5. Jean Piaget, The Moral Judgment of the Child (New York: Free Press), pp. 87-88. 6. Ibid., p. 77. 7. See Hart, op. cit., pp. 180-207. 8. For example, “The Family Law Act," Title I, California Civil Code, secs. 4100-4101. 9. See Nils Kr. Sundby, "Legal Right in Scandinavian Analyses," Natural Law Forum, 1968, Vol. XIII, pp. 102-103. 10. On Chinese concubinage, see Derek Bodde and Clarence Morris, The Law of Imperial China (Cambridge: Harvard Univ. Press, 1967), pp. 169, 171-172. On Roman law on slavery, see John T. Noonan, Jr., "Novel 22," in The Bond of Marriage, William Bassett, ed. (Notre Dame, Ind.: Univ. of Notre Dame Press, 1968), p. 62. 11. De Burgh v. De Burgh 39 Cal. Reports 2nd 858 at 863-864; 250 Pacific Reports 2nd 598 (1952). 12. Loving v. Virginia 388 U.S. Reports 1 at 12 (1967). 13. "1971 Midyear Report and Recommendations of the Family Law Section to the American Bar Association House of Delegates on the Uniform Marriage and Divorce Act," Family Law Quarterly, 1971, Vol. 5, pp. 191-193. See Calif. Civil Code sec. 4101, as amended by S.B. 1387 (1971). 14. State v. Gans 168 Ohio St. 174, 151 N.E. 2nd 709, 68 A.L.R. 2nd 736, (1958) cert. den. 359 U.S. 945 (1959). 15. See, for example, Ulrich v. Ulrich, 136 N. Y. 120, 32 N.E. 606 (1892). At common law, however, an adult child was under no duty to support or contribute to the support of his parents, Duffy v. Yordi, 149 Cal. 140, 84 P. 838 (1906). 16. See, for example, State v. Tucker, 174 Ind. 715, 93 N.E. 3 (1910), declaring that the crime of incest is purely a statutory creation. 17. See also, Nev. Rev. Stats. Title 16, secs 201.300-201.370, for crimes in relation to prostitution held punishable in the state of Nevada (including pandering, pimping, and operation of a bawdy house). 18. Cleveland v. United States 329 U.S. 14 at p. 19 (1946). 19. Levy v. Louisiana, 88 Sup. Ct., 1509, 391 U.S. 68, 20 L.Ed. 436 (1967). 20. 401 U.S. 532. (1971). 21. 39 U.S. Law Week 4294 (1971). 22. For example, California Penal Code, sec. 647 (punishing homosexual solicitation and "lewd" conduct). 23. Boutelier v. Immigration and Naturalization Service 387 U.S. 118 (1967). 24. Charles Lister, "The Right to Control the Use of One's Body" in The Rights of Americans: What They Are-What They Should Be, Norman Dorsen, ed. (New York: Pantheon, 1970), p. 350. 25. Adams v. Laird 420 F.2d 230 (D.C. Cir. 1969), cert. den. 90 Sup. Ct. 1390 (1970). 26. Note, "Government-Created Employment Disabilities of the Homosexual," Harvard Law Review, 1969, Vol. 82, pp. 1738 and 1734. 27. Boutelier v. Immigration and Naturalization Service 387 U.S. 118 at pp. 128-129 (Douglas dissenting). 28. "Government-Created Employment Disabilities of the Homosexual," op. cit., p. 1746. 29. Norton v. Macy 417 F.2d 1161 (D.C. Cir. 1969). 30. Morrison v. State Board of Education 82 Cal. Rptr. 175, 461 P. 2d 375 (1969). 31. See, generally, Note "Dismissal of Homosexuals from Government Employment: The Developing Role of Due Process in Administrative Adjudications," Georgetown Law Journal, 1970, Vol. 58, pp. 632-645. 32. 18 U.S. Code, sec. 552 (1948); 19 U.S. Code, sec. 1365 (1951), (Sec. 1365 repealed in 1962). See generally, R. W. Haney, Comstockery in America (1960). 33. See, U.S. Code Congress, and Admin. News (1971), for H.R. 4605, 91st Cong., 2nd Sess. (1971). On the history, see P. Smith, "The History and Future of the Legal Battle Over Birth Control," Cornell Law Quarterly, 1963, Vol. 49, p. 275. 34. For example, California Business and Professions Code, sec. 4315. 35. For example, California Business and Professions Code, sec. 4315. 36. Georgia Annotated Statutes, sec. 99-3103 (sales permitted to the married, the pregnant, parents, and others upon request) (amended, 1970) Iowa Revised Statutes Vol. 55; ch. 725.5 (1939) (sales permitted only to the married and to parents). 37. Baird v. Eisenstadt 429 F 2nd 1938 at 1401 (1st Cir., 1970), probable jurisdiction noted, 39 U.S.L. W. 3375 (1971). 38. 381 U.S. 479 (1965). 39. U.S. Bureau of the Census, Statistical Abstract of the United States: 1968, p. 32. 40. See V. Bullough, The History of Prostitution, pp. 251-261 (Hyde Park, N.Y.: University Books, 1964); E. Glover, et al. eds., Delinquency and Deviant Social Behavior, Vol. 5 40-43 (International Universities Press, 1962). M. Ploscowe, Sex and the Law 206-07 (New York: Prentice-Hall, Inc., 1951). 41. See, for example, Adams v. Laird, 420 F. 2d 230 (1969). 42. U.S. Bureau of the Census, op. cit., p. 51. 43. U.S. Bureau of the Census, Current Population Reports, Number of Children Under Five to Women, March 1969, p. 4; see also, Statistical Abstract of the United States: 1968, p. 51, Table 60. 44. See, for example, Calif. Penal Code as cited in Reference 22; also, M. Paulsen and S. Kadish, Criminal Law and Its Processes at 5-17 (Boston: Little, Brown Co., 1962). 45. Reynolds v. U.S., 98 U.S. 145, 25 L. Ed. 244 (1878). 46. For example, rabbinic law makes divorce mandatory for prolonged sterility, Yebamoth 6.64a. 47. U.S. Bureau of the Census, Statistical Abstract of the United States: 1968, p. 52 (a sample of decennial census, 1910 to 1965). For the virtually unanimous desire of American married couples for children, see Judith Blake, "Reproductive Motivation and Population Policy," BioScience, March 1971, Vol. 21. 48. Stanley S. Surrey and William C. Warren, Federal Income Taxation (New York: The Foundation Press, 1960), p. 411; Internal Revenue Code, sec. 151(b)(e). 49. Stanley S. Surrey, "Federal Taxation of the Family-The Revenue Act of 1948," Harvard Law Review, 1948, Vol. 61, pp. 1097 and 1099. 50. U.S. Internal Revenue Service, 1970 Instructions for Form 1040, p. 21. 51. U.S. Bureau of Labor Statistics, Handbook of Labor Statistics Bulletin 1966, Table 148. 52. U.S. Dept. of the Treasury, Press Service No. 4480, 1947, reprinted in Surrey and Warren, op. cit., p. 410. 53. Ibid., p. 413. 54. U.S. Bureau of Labor Statistics, op. cit. 55. U.S. Internal Revenue Service, op. cit. 56. Adrian A. Kragen and John K. McNulty, Cases and Materials on Federal Income Taxations (West Publ. Co., 1970), 744-746. 57. U.S. Internal Revenue Service, op. cit., pp. 4-5. 58. Lower estimate derived from U.S. Bureau of Labor Statistics, op. cit., Table 136 and Table 148, Note 51. Higher estimate derived from Ritchie H. Reed and Susan McIntosh, "The Costs of Children" (paper prepared for the Commission on Population Growth and the American Future). Unintended Consequences: Laws Indirectly Affecting 59. Canada, Report of the Royal Commission on Taxation, 1966 Vol. II, p. 123. 60. Kragen and McNulty, op. cit., p. 796. 61. Internal Revenue Code, Sec. 73. 62. Ibid., sec. 102. 63. Ibid., sec. 170. 64. The general failure of the tax law to treat children as individuals, and the consequent inequitable treatment of parents, may be contrasted with the benefits accorded a class beyond the age of procreation, those aged 65 or over, who are given an extra $650 exemption (sec. 151), a further exemption of 15 percent of retirement income (sec. 37), a partial or total exemption from tax on the sale of their residence (sec. 121), and special rules for medical care deductions (sec. 213e). No comparable tax advantages are accorded children or the parents of children. 65. U.S. Bureau of Labor Statistics, op. cit., Table 148. 66. Kragen and McNulty, op. cit., p. 771. 67. U.S. Internal Revenue Service, op. cit. 68. Canada, op. cit., Vol. II, p. 127. 69. U.S. Congress, House, H. Rept. 92-708, 91st Cong., 1st sess., Dec. 4, 1971, Congressional Record, Vol. 117, p. H11761. 70. On state and city income taxes, see Dick Netzer, "Tax Structures and Their Impact on the Poor," in Financing the Metropolis: Public Policy in Urban Economics, John P. Crecine, ed. (Beverly Hills, Calif.: Sage Publications, Inc., 1970), pp. 473-474. 78. John E. Coons and Stephen D. Sugarman, "Family Choice In Education: A Model State System for Vouchers," California Law Review, 1971, Vol. 59, p. 432. 79. U.S. Bureau of the Census, Current Population Reports, Income in 1969 of Families and Persons in the U.S., Dec. 14, 1970, Table 18, p. 42. 80. For the classic judicial recognition of the importance of education, see Chief Justice Warren in Brown v. Board of Education 347 U.S. 483 at 493 (1954): "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education 'to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship." For the use of the right to equal education as the basis for constitutional invalidation of a state's property tax, see Serrano v. Priest 5 Cal. 3rd 584 (1971). 81. See Charles S. Benson, The Economics of Public Education (Boston: Houghton Mifflin Co., 1968), pp. 30-62. 82. See Mass. General Laws, Vol. 31, Sec. 196.1 et seq. 84. Internal Revenue Code, sec. 2056(e)(1) (marital deduction); sec. 2055. 85. David Westfall, “Revitalizing the Federal Estate and Gift Taxes," Harvard Law Review, 1970, Vol. 83, p. 989. 86. U.S. Dept. of the Treasury, Tax Reform Studies and Proposals, 1969, Part 3, p. 366, reported in ibid., pp. 991-992. 87. Westfall, op. cit., p. 996. 88. Ibid., p. 989. 89. Housing Act of 1949, 42 U.S. Code 1441. 90. See Thomas H. Naylor, "The Impact of Fiscal and Monetary Policy on the Housing Market," Law and Contemporary Problems, 1967, Vol. 32, pp. 384 and 390. 91. For the authorizing legislation, 12 U.S. Code 248b (discount rate); 12 U.S. Code 248m (reserve requirements); 12 U.S. Code 263 (open market purchases). 92. See the qualifications made by Naylor, op. cit., p. 394. 93. Ibid., p. 393. 94. In 1968, life insurance companies held 61 billion dollars in nonfarm residential mortgages, mutual savings banks $42 billion, commercial banks $37 billion, and savings and loan associations $29 billion; see U.S. Bureau of the Census, Statistical Abstract of the United States 1968, p. 450. 95. U.S. President's Task Force on Low Income Housing, Toward Better Housing for Low Income Families, 1970, p. 1. 96. Ibid., p. 3. 119. Ibid. For the language quoted, National Housing Act, sec. 207b, 12 U.S. Code 1713b. 120. John B. Halper, "The Influence of Mortgage Lenders on Building Design," Law and Contemporary Problems, 1967, Vol. 32, pp. 266 and 271. 121. Historical Note following 12 U.S. Code Annotated 1713. 122. U.S. National Commission on Urban Problems, Building the American City (Washington: Government Printing Office, 1968), p. 99. 123. U.S. Dept. of HUD, op. cit., p. 282. 124. Internal Revenue Code, sec. 103a. 125. U.S. Dept. of HUD, op. cit., p. 289. 126. 42 U.S. Code 1410h; the authorities do make contributions in lieu of taxes. 127. U.S. Congress, House, Committee on Banking and Lending, Housing and the Urban Environment; Report and Recommendations of Three Study Parcels of the Subcommittee on Housing, H. Rept. 1585, 92nd Cong., 1st sess., June 1971, p. 24. 128. U.S. National Commission on Urban Problems, op. cit., P. 127. 129. Ibid., p. 129. 130. U.S. Dept. of HUD, op. cit., p. 262. 131. U.S. National Commission on Urban Problems, op. cit., pp. 119 and 127. 132. 82 Stat. 505, 42 U.S. Code 1402(2). 133. The amendment was described as enabling "local housing authorities to respond to the housing needs of low-income families with many children and those with low incomes," U.S. Congress, House, Committee on Banking and Lending op. cit., reprinted in U.S. Code Congressional and Administrative News (1968), p. 2905. 134. U.S. President's Task Force on Low Income Housing, op. cit., p. 7. 135. Descriptions taken from U.S. Congress, Senate, Select Committee on Nutrition and Human Needs, Housing Need and Federal Failure in Rural America, 91st Congress, 2nd Sess., 1971, p. 20, and supplemented by figures from U.S. Congress, House, Committee on Banking and Lending, op. cit., pp. 24-25. For statutory references, see 12 U.S. Code. 1715-1 (1971 Supplement). 136. U.S. Commission on Civil Rights, Home Ownership for Lower Income Families, June 1971, p. viii. 137. Ibid., P. viii. 138. Ibid., p. 93. 139. Descriptions taken from the sources listed in note 135. For the statutory authority for the programs, 12 U.S. Code 1715-1 (Sec. 22); See also, P.L. 88-560, 78 Stat. 769 (Title V) (1964). 140. Telephone interview by John T. Noonan, Jr., with the California State Office of the Farmers' Home Administration, August 4, 1971. 141. Internal Revenue Code, sec. 163; Stanley S. Surrey, "The Federal Income Tax Base for Individuals," Columbia Law Review, 1958, Vol. 58, pp. 815, 826. 142. Internal Revenue Code, sec. 164. 143. Treasury estimates, Statement of Joseph W. Barr, Secretary of the Treasury, U.S. Congress, Joint Economic Committee, |