Labine v. Vincent/Dissent Brennan

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting.

In my view, Louisiana's intestate succession laws, insofar as they treat illegitimate children whose fathers have publicly acknowledged them differently from legitimate children, plainly violate the Equal Protection Clause of the Fourteenth Amendment. The Court today effectively concedes this, and to reach its result, resorts to the startling measure of simply excluding such illegitimate children from the protection of the Clause, in order to uphold the untenable and discredited moral prejudice of bygone centuries which vindictively punished not only the illegitimates' parents, but also the hapless, and innocent, children. Based upon such a premise, today's decision cannot even pretend to be a principled decision. This is surprising from Justices who have heretofore so vigorously decried decisionmaking rested upon personal predilections, to borrow the Court's words, of 'life-tenured judges of this Court.' Ante, at 539. I respectfully dissent.

* In 1961, Ezra Vincent was 69 years old and Lou Bertha Patterson (now Lou Bertha Labine) was 41. They were unmarried adults living in rural, southwest Louisiana, outside the town of Lake Charles. Soon after meeting each other in 1961, Mrs. Patterson moved in with Mr. Vincent. Although they did not marry, Mrs. Patterson had a daughter by Mr. Vincent on March 15, 1962. The child's birth certificate identified the father and mother by name. Within two months, Mr. Vincent and Mrs. Patterson appeared before a notary public and executed a form, in accordance with Louisiana law, acknowledging that Mr. Vincent was the father of the child. A month later, the child's birth certificate was changed to give the child Mr. Vincent's name, and she has always been known since as Rita Nell Vincent. By acknowledging the child, Mr. Vincent became legally obligated under state law to support her. Mr. Vincent and Mrs. Patterson continued to live together and raise Rita Nell until Mr. Vincent died in 1968. He left no will.

As natural tutrix of Mr. Vincent's only child, Rita Nell's mother brought this suit on the child's behalf seeking to have Rita Nell declared Mr. Vincent's sole heir. Applying Louisiana law, the trial court dismissed the action and declared Mr. Vincent's collateral relations-his brothers and sisters-to be his heirs. The child's tutrix appealed, arguing that to treat a publicly acknowledged illegitimate child differently from a legitimate child was a denial of equal protection and due process. The Louisiana intermediate appellate court affirmed in all respects, upholding the state statutory provisions against constitutional attack, '(h)owever unfair it may be to punish innocent children for the fault of their parents.' 229 So.2d 449, 452 (1969). The Louisiana Supreme Court declined review, and we noted probable jurisdiction. 400 U.S. 817, 91 S.Ct. 79, 27 L.Ed.2d 44 (1970).

The rationality and constitutionality of Louisiana's treatment of the illegitimate child can only be analyzed against the background of a proper understanding of that State's law. Under Louisiana law, legitimate children have an automatic right to inherit from their parents. Legitimate children generally cannot be disinherited. Property cannot even be given away without taking account of the rights of a legitimate child, since the portion of the decedent's estate that can be given away or disposed of through donations inter vivos or mortis causa is sharply limited by law for the benefit of a person's legitimate children. Actually the Louisiana Constitution protects this scheme of forced heirship which benefits the decedent's parents as well as his legitimate children.

This enshrinement of forced heirship in the state constitution symbolizes Louisiana's extensive legal ordering of familial affairs. Louisiana's regulation of the family covers not merely the devolution of property upon the death of any member, but virtually every aspect of the duties owed by one family member to another, and the authority, particularly of the father, over the other members. This reflects the derivation of Louisiana's legal traditions from the French, Spanish, and Roman civil law; they do not have their roots in English common law:

'Countries which received the Roman law in one form or     another have traditionally ordered relationships between      citizens in terms of two institutions, family and obligation. * *  * (T)he relationships formed by Romanist man were all      grounded in one or both of these institutions. His     relationship with his family was determined by law, it      established his status, and this, in turn, qualified the      relationships which he could make with those who were not his      family. * *  * (A) man's position within his family passed      into the modern Roman laws as the significant qualification      to forming private legal relationships.' Tucker, Sources of      Louisiana's Law of Persons: Blackstone, Domat, and the French      Codes, 44 Tul.L.Rev. 264, 275-276 (1970) (emphasis added).

Thus it is that Louisiana law distinguishes between legitimate children and illegitimate children throughout that law's extensive regulation of family affairs. But, for purposes of this case, I need only discuss those portions of Louisiana law that bear upon inheritance rights. Article 178 of the Louisiana Civil Code provides in full: 'Children are either legitimate, illegitimate, or legitimated.' Not all illegitimate children can be legitimated, however-only those whose parents do not have legitimate descendants or ascendants and could lawfully have married each other at the time of the child's conception, or those whose parents later marry can be legitimated. An illegitimate child who can be legitimated becomes a 'natural' child when his father formally acknowledges him. However, Article 206 of the Louisiana Civil Code provides that, '(i)llegitimate children, though duly acknowledged, can not claim the rights of legitimate children.' Thus, the primary consequence under Louisiana succession law that flows from acknowledgment is that the natural child may inherit under a will, and inherits if there is no will, only after the father's other descendants, ascendants, collateral relations, and surviving spouse, but before the estate escheats to the State. An illegitimate child whose parents could lawfully have married each other at the time of the child's conception, but who has not been publicly acknowledged, or an illegitimate child whose parents were not capable of marriage at the time of conception, may not inherit at all, either by will or intestate sucession, 'the law allowing them nothing more than a mere alimony.' La.Civ.Code Ann., Art. 920 (1952).

Under Louisiana law a legitimate child would have had an absolute right to inherit Mr. Vincent's estate; Mr. Vincent could not have totally disinherited such a child. This is a consequence of Louisiana's 'forced heirship' law, in other words a consequence of a state decision, however contrary that might be to Mr. Vincent's own desires. Similarly in the present case, Mr. Vincent's illegitimate daughter, though duly acknowledged, is denied his intestate estate, not because he wished that result but because the State places her behind Mr. Vincent's collateral relations-indeed behind all his relations-in the line of succession.

The State's discrimination is clear and obvious. Ordinarily, even in cases of economic regulation, this Court will inquire, under the Equal Protection Clause of the Fourteenth Amendment, whether there is some 'reasonable basis' for a discrimination in a state statute, or whether the discrimination is invidious. E.g., Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957); Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Such an inquiry does not question the State's power to regulate; rather, it focuses exclusively on whether the State has legislated without the invidious discrimination that is forbidden by the Fourteenth Amendment.

For reasons not articulated, the Court refuses to consider in this case whether there is any reason at all, or any basis whatever, for the difference in treatment that Louisiana accords to publicly acknowledged illegitimates and to legitimate children. Rather, the Court simply asserts that 'the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State.' Ante, at 538. But no one questions Louisiana's power to pass inheritance laws. Surely the Court cannot be saying that the Fourteenth Amendment's Equal Protection Clause is inapplicable to subjects regulable by the States-that extraordinary proposition would reverse a century of constitutional adjudication under the Equal Protection and Due Process Clauses. It is precisely state action which is subjected by the Fourteenth Amendment to its restraints. It is, to say the least, bewildering that a Court that for decades has wrestled with the nuances of the concept of 'state action' in order to ascertain the reach of the Fourteenth Amendment, in this case holds that the state action here, because it is state action, is insulated from these restraints.

Putting aside the Court's repeated emphasis on Louisiana's power to regulate intestate succession-something not questioned and wholly irrelevant to the present constitutional issue-only two passages in the Court's opinion even attempt an argument in support of today's result. First, the Court tells us that Louisiana intestate succession law favors some classes of a deceased's relatives over other classes. That is certainly true, but the Court nowhere suggests what bearing these other discriminations have on the rationality of Louisiana's discrimination against the acknowledged illegitimate. It is a little like answering a complaint of Negro school children against separate lavatories for Negro and white students by arguing that the situation is no different from separate lavatories for boys and girls, or for elementary school children and high school students. These other discriminations may be rational or irrational. But their only relevance to the rationality and constitutionality of the specific challenged discrimination is the light they throw, if any, on the basis for that discrimination. The conclusion the Court appears to draw from its itemization of other discriminations among a deceased's relatives is that Louisiana needs no justification at all for any of the distinctions it draws. That reasoning flies in the face not only of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, but also of the very notion of a rule of law.

The only other hint at an attempt to support today's result may appear in the purported distinction of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968): 'We emphasize that this is not a case, like Levy, where the State has created an insurmountable barrier to this illegitimate child.' Ante, at 539. There may be two implications in this statement: (1) that in Levy, there was an insurmountable barrier to recovery; and (2) that any discrimination that falls short of an 'insurmountable barrier' is, without need for further analysis, permissible. As to the first, Levy involved an unacknowledged illegitimate child. Louisiana permitted an illegitimate child to recover in tort for the death of the child's mother, under the State's wrongful death act, only if the illegitimate child had been acknowledged. There was no insurmountable barrier to the child's recovery; if the mother had formally acknowledged the child, recovery would have been permitted. My Brother Harlan's dissent emphasized this fact and argued that the State was entitled to rely on specified formalities. Plainly then Levy did not involve any 'insurmountable barrier.'

The Court's second implication-that any discrimination short of an 'insurmountable barrier' is permissible-is one of those propositions the mere statement of which is its own refutation. Levy, as I have pointed out, holds squarely to the contrary specifically in the context of discrimination against illegitimate children. And numerous other cases in this Court establish the general proposition that discriminations that 'merely' disadvantage a class of persons or businesses are as subject to the command of the Fourteenth Amendment as discriminations that are in some sense more absolute.

In short, the Court has not analyzed, or perhaps simply refuses to analyze, Louisiana's discrimination against acknowledged illegitimates in terms of the requirements of the Fourteenth Amendment. Since I still believe that the Constitution does prohibit a State from denying any person the 'equal protection of the laws,' I must therefore undertake my own analysis to determine, at a minimum, whether there is any rational basis for the discrimination, or whether the classification bears any intelligible proper relationship to the consequences that flow from it. See, e.g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McLaughlin v. Florida, 379 U.S. 184, 190-191, 85 S.Ct. 283, 287-288, 13 L.Ed.2d 222 (1964); Morey v. Doud, supra; Gulf, C. & S.F.R. Co. v. Ellis, 165 U.S. 150, 155, 17 S.Ct. 255, 256-257, 41 L.Ed. 666 (1897).

Certainly, there is no biological basis for the State's distinction. Mr. Vincent's illegitimate daughter is related to him biologically in exactly the same way as a legitimate child would have been. Indeed, it is the identity of interest 'in the biological and in the spiritual sense,' Levy v. Louisiana, 391 U.S., at 72, 88 S.Ct., at 1511, and the identical 'intimate, familial relationship,' id., at 71, 88 S.Ct. at 1511 between both the legitimate and illegitimate child, and their father, which is the very basis for appellant's contention that the two must be treated alike.

Louisiana might be thought to have an interest in requiring people to go through certain formalities in order to eliminate complicated questions of proof and the opportunity for both error and fraud in determining paternity after the death of the father. This argument, of course, was the focal point of the dissent in Levy and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). I leave aside, for the moment, the fact that the holdings of those two cases indicate that this consideration is insufficient to justify a difference in treatment when there is no dispute over the fact of parentage. For my Brother Harlan's dissenting opinion in those cases explicitly recognized that the State's interest in this regard is fully satisfied by a formal public acknowledgment. 391 U.S., at 80, 88 S.Ct., at 1514. When a father has formally acknowledged his child or gone through any state authorized formality for declaring paternity, or when there has been a court judgment of paternity, there is no possible difficulty of proof, and no opportunity for fraud or error. This purported interest certainly can offer no justification for distinguishing between a formally acknowledged illegitimate child and a legitimate one.

It is also important not to obscure the fact that the formality of marriage primarily signifies a relationship between husband and wife, not between parent and child. Analysis of the rationality of any state effort to impose obligations based upon the fact of marriage must, therefore, distinguish between those obligations that run between parties to the marriage and those that run to others. By Brother Harlan, unlike his colleagues in the majority, concedes that the Equal Protection Clause requires a justification for Louisiana's discrimination against illegitimates, and he attempts one; he argues that it is reasonable for a State to impose greater obligations on a man in respect to his wife and their children than in respect to other women and any other children of whom he may be the father. In other words, contrary to the Louisiana court below he apparently believes that Louisiana's discrimination against illegitimates reflects a state policy that would discourage marriage by imposing special burdens, such as those of forced heirship, upon those who enter into it. However that may be, such force as his argument may have stems directly from its lack of specificity. Imposition by a State of reciprocal obligations upon husband and wife that are not imposed upon those who do not enter into a formalized marriage relationship is based upon the assumptions (1) that marriage may be promoted through pressure applied on or by the party seeking the benefit of obligations imposed by the married status, and (2) that in any event the choice is entirely within the control of the two individuals concerned. These elements are entirely lacking when we consider the relationship of a child vis-a -vis its parents. Precisely this point was made approvingly by Chancellor Kent, relied upon by my Brother Harlan, early in the 19th century:

'This relaxation in the laws of so many of the states, of the     severity of the common law (discrimination against illegitimates), rests upon the principle that      the relation of parent and child, which exists in this      unhappy case, in all its native and binding force, ought to      produce the ordinary legal consequences of that      consanguinity.' 2 J. Kent, Commentaries * 213 (12th ed. O.      Holmes 1873).

Intestate succession laws might seek to carry out a general intent of parents not to provide for publicly acknowledged illegitimate children. However, as the summary of Louisiana law I have made shows, one of the primary hallmarks of Louisiana's civil code is its detailed, extensive regulation of the family relationship. Its discrimination against the illegitimate in matters of inheritance and succession is official state policy, completely negating any argument that such discrimination merely represents a legislative judgment about the probable wishes of a deceased or the desires of most persons in similar situations. The opinion of the state court below itself eliminates that possibility. The Louisiana court affirmatively states that the disinheritance of acknowledged illegitimates is in furtherance of specific state policy goals goals that are unrelated to parents' intentions, 229 So.2d, at 452. Finally, viewing the general statutory treatment of illegitimates as a whole, particularly the facts that only a narrow class of fathers can legitimate their children by declaration, and that unacknowledged and 'adulterous' illegitimates are prohibited from inheriting even by will, I think the conclusion is compelled that Louisiana's discrimination represents state policy, not an attempt to aid in the effectuation of private desires.

Even if Louisiana law could be read as being based on a legislative judgment about parents' intent, the present discrimination against illegitimates could not stand. In order to justify a discrimination on the ground that it reflects a legislative judgment about the desires of most persons in similar situations, there must be some rational basis for finding that the legislative classification does reflect those persons' desires or intentions as a general matter. The Court makes no argument that fathers who have publicly acknowledged their illegitimate children generally intend to disinherit them. No Louisiana court opinion or Louisiana legislative pronouncement that I can discover, or the Attorney General of Louisiana in this case, has ever argued that the Louisiana scheme reflects the general intentions of fathers of illegitimate children in that State. Indeed, the state court below justified the discrimination on the ground that 'the denial of inheritance rights to illegitimates might reasonably be viewed as encouraging marriage and legitimation of children.' 229 So.2d, at 452. Such denial could encourage marriage only if fathers generally desire to leave their property to their illegitimate children; otherwise, disinheritance would not operate as a sanction to encourage marriage.

Moreover, logic and common experience also suggest that a father who has publicly acknowledged his illegitimate child will not generally intend to disinherit his child. A man who publicly announces that he has fathered a child out of wedlock has publicly claimed that child for his own. He has risked public opprobrium, or other sanctions, to make the public announcement. Surely, it does not follow that he will generally desire to disinherit that child and further discredit his reputation by refusing to contribute to his own child at death. All the writings cited to us, including a United Nations study report, an English study commission, the proposed Uniform Probate Code, and a variety of law review commentary in this country, suggest precisely the opposite conclusion. Moreover, Louisiana is the only State in the country that denies illegitimate children rights of inheritance from the mother equal to those of legitimate children, and one of only four States that have expressly provided by statute that the illegitimate child may not inherit from his father. The legislatures of 20 States by statute allow acknowledged illegitimate children to inherit equally from their fathers. Three States grant equal rights of inheritance from the father regardless of acknowledgment. The legislatures of the other 23 States have not passed upon the question.

The Court nowhere mentions the central reality of this case: Louisiana punishes illegitimate children for the misdeeds of their parents. The judges of the Third Circuit Court of Appeal of Louisiana, whose judgment the Court here reviews, upheld the present discrimination '(h)owever unfair it may be to punish innocent children for the fault of their parents * *  * .' 229 So.2d, at 452. It is certainly unusual in this country for a person to be legally disadvantaged on the basis of factors over which he never had any control. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). The state court below explicitly upheld the statute on the ground that the punishment of the child might encourage the parents to marry. If that is the State's objective, it can obviously be attained for more directly by focusing on the parents whose actions the State seeks to influence. Given the importance and nature of the decision to marry, cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, I think that disinheriting the illegitimate child must be held to 'bear no intelligible proper relation to the consequences that are made to flow' from the State's classification. Glona v. American Guarantee & Liability Insurance Co., 391 U.S., at 81, 88 S.Ct., at 1514-1515 (Harlan, J., dissenting).

In my judgment, only a moral prejudice, prevalent in 1825 when the Louisiana statutes under consideration were adopted, can support Louisiana's discrimination against illegitimate children. Since I can find no rational basis to justify the distinction Louisiana creates between an acknowledged illegitimate child and a legitimate one, that discrimination is clearly invidious. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). I think the Supreme Court of North Dakota stated the correct principle in invalidating an analogous discrimination in that State's inheritance laws: 'This statute, which punishes innocent children for their parents' transgressions has no place in our system of government which has as one of its basic tenets equal protection for all.' In re Estate of Jensen, 162 N.W.2d 861, 878 (1968).