LEVY v. LOUISIANA

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Argument of Norman Dorsen

Chief Justice Earl Warren: Number 508, Norman Dorsen versus William A. Porteous, III.

Mr. Dorsen.

Mr. Norman Dorsen: Mr. Chief Justice, members of the Court.

This case concerns the rights of illegitimate children under the Fourteenth Amendment.

Specifically, the question is whether a state can deny children born to an unmarried woman the benefits of a statute permitting children generally to sue for the wrongful death of their mother.

The facts in the case are simple and uncontested.

The decedent, Mrs. Louise Levy was the mother of five infant children whose interests are at stake here.

The children lived with their mother and were dependent on her.

The defendants in the case in this Court are Dr. W.J. Wing of the Charity Hospital of New Orleans and an insurance company, the Interstate Fire & Casualty Company.

On March 12, 1964, Mrs. Levy went to the Charity Hospital feeling ill and having other symptoms.

She was assigned to Dr. Wing who purported to examine here but failed to take blood test and make other checks.

On March 19, Mrs. Levy returned and she was still feeling ill.

Dr. Wing admonished her for not taking the medicine that he had prescribed and he suggested that she see a psychiatrist and in fact, he made an appointment with her to see a psychiatrist.

On March 22nd, Mrs. Levy was brought to the hospital in a comatose condition, on March 29th, she died.

This suit was filed in the Louisiana courts under Article 2315 of the Louisiana code, the wrongful death statute of the state.

Two elements of damages were alleged, totalling $60,000.00.

$55,000.00 was alleged as the damages that these children suffered for the loss of their mother prior to the age of majority.

This is the wrongful death element.

$5,000.00 was alleged as the survivorship portion of the damages for the decedent's pain and suffering before she died.

After procedural matters were taken care of in the lower court, the trial court dismissed the cause of action.

This was affirmed by the Court of Appeals of Louisiana and one reason was given for denying these illegitimate children the right to sue and the words of the Louisiana Court of Appeals, the decision is "actually based on morals and general welfare because it discourages bringing children into the world out of wedlock".

Justice Potter Stewart: The Court -- did the Court make any distinction at all between the dependence action or the survivorship action?

Mr. Norman Dorsen: It did not Mr. Justice Stewart.

Justice Potter Stewart: The first action, I suppose the damages could be plainly awarded only in the event of dependency, couldn't they?

Mr. Norman Dorsen: Right.

That's correct Mr. Justice.

The Supreme --

Justice Potter Stewart: The second one is on behalf of the mother herself for her own pain and suffering.

Mr. Norman Dorsen: That's quite correct.

The Supreme Court of Louisiana without opinion refused the writ of error.

It's the position in this Court that the appellants take that this application of Article 2315 is invalid under the Fourteenth Amendment.

First, because it violates the Equal Protection Clause, denying the children rights on the basis of suspect criteria, the status of illegitimacy.

Second, because it's a violation of Equal Protection Clause on the ground of a statutory classification is unreasonable in light of the purpose of Article 2315.

And three, that it's a violation of due process because the discrimination for there is no valid state purpose and deprives the children of rights on the basis of a status over which they have no control.

Our first point is that the classification is unreasonable in light of the statutory purpose.

The principle in this Court is ancient and clear and we quoted in the brief on page 9 where the Court said as long ago as 1896 that the attempted classification must always rest upon some difference which bears a reasonable and just relation to the Act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis.

Of course more recent cases like Carrington and Rash and McLaughlin and Florida adopt and apply this rule of the Court.

The application of this principle, it seems to us is equally plain in this case.

It's the purpose of the wrongful death portion of the statute to save children harmless from the loss of the material and moral benefits that they would have received if their mother had lived, the mother in whom they were dependent, the mother with whom they resided and this of course is the purpose of all wrongful death statutes.

In this case, it seems to us, it's wholly unreasonable to discriminate against the illegitimate children.

They were as close to their mother as any children could be.

They were fully dependent on her for both the economic necessities and the intangibles of training, nurture and guidance.

Indeed Louisiana Workman's Compensation Law which has been applied to permit dependence to recover under the Workman's Compensation law even if they're illegitimate, points up in our judgement the unreasonable nature of the classification here.

When one turns to the survivorship portion of the statute, the purpose is only slightly different but there is an added element and that is to reinforce the deterrent aspects of the general tort law by refusing to permit wrongdoers to escape payment.

This stated in the statute itself and by an authoritative law review article in Louisiana which on page 16 states, "The idea apparently evolved that the person responsible for the wrongful act should pay damages to someone connected with the deceased whether or not that person was dependent on him.

And of course in this case, the children were dependent on the mother and there is no reason that I can think of and no reason has been suggested, I respectfully say to the Court, why this children like any other children should not be able to bring this course of action on behalf of their -- in their status as dependents and children of the mother with whom they lived.

Now, the justification, the only justification that was given in the Louisiana court was the idea that illegitimacy would be deterred by rule of this kind.

Not only was this assertion unsupported by factual data but with all candor, it seems to me, to be a wholly unbelievable assertion.

It assumes that those in the process of begetting children will assume all of the following eventualities.

The possibility of pregnancy that there will be no later marriage or other method of legitimating the children that the children will not be acknowledged, that the mother would subsequently die at the hands of a tortfeasor, not only of a tortfeasor but in the hands of a solvent or insured tortfeasor and not only that but within the jurisdiction of Louisiana.

Justice Potter Stewart: Well, even if you assume that the mother found all those things and it's hardly renounced to her benefit, she is dead.

Mr. Norman Dorsen: Quite true, Mr. Justice Stewart.

We have to bear in mind here that the people on whose behalf the lawsuit is being brought are the innocent children of this woman.

They have had no and could have had no control over to their status.

So we have here innocent children, no control over their status, a wrong doer, avoiding the consequences of his act and not only that, despite with all respect, the assertions in the brief of the appellee, Louisiana is the only jurisdiction at the present time that would have this result.

Four other states are mentioned as possibly reaching the same result under existing law New Jersey, Pennsylvania, Indiana and New York.

Justice Byron R. White: This doesn't go to the rest of the other part of the claim in Pennsylvania.

Mr. Norman Dorsen: Pardon me.

Justice Byron R. White: This doesn't go to the recovery for the mother's own suffering.

Mr. Norman Dorsen: It goes -- that's the inheritance part.

Every state in the United States at the present time would permit an illegitimate child to recover inheritance from the mother and there was a factual error in our brief.

Justice Byron R. White: But how about -- how about the -- this is the two pronged action here?

Mr. Norman Dorsen: It's under one statute but there are two elements of the statute and two elements of damages.

Justice Byron R. White: In your statement that there is only one state in United States wouldn't refuse this claim that goes to both elements.

Mr. Norman Dorsen: Yes, it does.

In our brief, I would like to correct an assertion in our brief.

We say that New York also would have denied recovery of inheritance but there was a New York statute that came into effect in September 1967 which amended the New York law but that has not come to our attention when we were drafting this brief.

It's on page --

Justice Abe Fortas: Do you have that (Voice Overlap) in reference to it?

Mr. Norman Dorsen: Yes, I do.

It's Section 5 - 3.4 of the state's powers and trust laws, and the New York statute amends the earlier law by saying under the title "Inheritance by or from illegitimate persons".

For the purposes of this article, an illegitimate child is the legitimate child of his mother and he in this issue inherits from his mother and from her kindred.

Justice John M. Harlan: When was this passed?

Mr. Norman Dorsen: It was passed in 1966 session, Mr. Justice Harlan.

Now, there is one other element in this case that of course underlies the first claim in point of pagination and that is, we have here a minority, a minority that in the words of Justice Stone and his famous footnote for Carolene Products is a discrete and insular minority.

It's a minority that has characteristics similar to the racial classifications that this Court of course has been dealing with for so many years.

We have here a minority that has been the subject of prejudice and abuse.

This prejudice, moreover, is motivated by complex, historical, psychological and sociological factors.

In the words of one psychiatrist who made an extensive study of illegitimacy quoted in the amicus curiae brief of the National Association for the Advancement of Colored Persons, "illegitimacy is a psychic catastrophe, not only as of the psychic catastrophe, not only is it a believed minority but a discrimination against the people in the category of illegitimacy stems from a condition of birth unrelated to individual capacities, uncontrollable by the individuals themselves."

Indeed, in one respect, one can even assert that this is an a fortiori case for race.

Because unlike the situation of minority racial groups, there is no lobby for the illegitimate and in the footnote 4 in Carolene Products and in other cases, this Court has recognized that particular care must be had in scrutinizing statutes where the ordinary political processes are unable to work.

And it seems to us that this is such a case and that these people are in the category analogous to the racial minorities.

Justice Abe Fortas: Mr. Dorsen, are there other types of distinctions between legitimate and illegitimate children in the statutory law or case law of various states?

Mr. Norman Dorsen: Yes there are, Mr. Justice Stewart or Mr. Justice Fortas.

There are several types and the main one of course involves inheritance, straight inheritance from the mother, from the father and from collateral relatives of both.

Justice Abe Fortas: I thought you said Louisiana now is the only state that denies that.

Mr. Norman Dorsen: It -- with respect to the mother -- with respect to the mother but with respect to the father, the law is more complicated.

16 states by statute have provided that illegitimates can recover.

If it does not, we will submit a supplemental memorandum Mr. Justice Fortas.

One state has done it by judicial decision, Connecticut.

10 States have denied inheritance from the father by statute.

Some have given limited rights and some are silent.So we have five categories of states with respect to inheritance from the father.

Justice Potter Stewart: Are there other refinements to settle this with respect to sisters and cousins?

Mr. Norman Dorsen: That's quite correct, Mr. Justice Stewart.

In addition of course, there are special rules relating to support.

There are special rules relating to the interpretation of wills where the word "children" is used and adorned by any explicating adjective.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: My understanding is that everywhere that they are inheritable of putting apart in this factor of illegitimacy.

The common law was that it was not Lord Campbell's Act in England in 1846 was the first statute.

Justice Byron R. White: (Inaudible) that statute.

Mr. Norman Dorsen: Correct.

Justice Byron R. White: What perhaps your claims to (Inaudible).

Mr. Norman Dorsen: Quite right.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: Is inherited.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: That is correct.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: Yes, correct in 1846.

Every state in United States now has a Wrongful Death Act and the purposes of these acts of course were patterned after the original English law.

Our position of course is as we develop more fully in the brief that the criteria in itself is arbitrary that the factors which underlie the jurisprudence of this Court with respect to other invidious classifications do apply in this case and therefore, our submission to this Court is double barreled.

One, that the denial of the right to sue here is inconsistent with the purposes of Louisiana's own statute and secondly that it's on the basis of a criteria in which itself a suspect and must be scrutinized carefully.

At this point, I would like to reserve some time --

Justice John M. Harlan: Now what difference does it make (Inaudible)?

Justice Byron R. White: I don't think it makes any difference, Mr. Justice Harlan.

We've examined the French law at -- it was the basis for Louisiana's law and that law itself suffered considerable permutations over time but Louisiana is one of the states and that it would be subject to the Constitution and although it has a particular historical oddity just as California and New Mexico law is derived from the Spanish law, I would not think that would be directly relevant to the constitutional issue.

Chief Justice Earl Warren: Mr. Porteous.

Argument of William A. Porteous, Iii

Mr. William A. Porteous, Iii: Mr. Chief Justice, may it please the Court.

Gentlemen, every equal protection of the law's case and we're dealing with the state statute, ultimately comes down to a problem of federalism.

How far are we going to go with the Fourteenth Amendment?

Is it to become a vehicle whereby national power will be asserted all the things traditionally reserved to the states?

We submit the answer should be in the negative.

It was never conceived as such was conceived to protect those persons for whom this great nation fought a long war.

Gentlemen --

Justice Abe Fortas: Are you suggesting that it's applicable only to former slaves of the Fourteenth Amendment?

Mr. William A. Porteous, Iii: I do not mean this.

It's just that I don't mean to so limit it sir.

The whole history of the amendment would be to the contrary, however, I'm coming to the fact that in the whole spectrum of equal protection litigation, we have two criteria which emerged.

One, when we're dealing with a racist or racial statute, this Court has applied one set of standards.

The statute is automatically has it were suspect.

Justice Abe Fortas: Well, I don't think -- I hadn't feel it anyway that the fact that the petitioner, Mrs.-- that the fact that Mrs.-- the appellant here Mrs. Levy was a Negro, I didn't think that was the case, does it?

Mr. William A. Porteous, Iii: I don't believe it does, if Your Honor please.

However, the assertion is made in the briefs of the appellant that in Louisiana, 90% of the children who were born illegitimate are colored and that therefore, this statute is some covert form of discrimination against the colored race.

This is asserted in the briefs, and if Your Honor please, I would say that the whole history of our wrongful death statute is quite to the contrary.

If you examine the Louisiana cases on the subject, you will find that race is very rarely even mentioned.

The race of the various parties is very rarely even mentioned in the decisions and I can assure you I know of no cases where it was applied, where the statute was given in favor of White illegitimates and taken away in favor of colored illegitimates.

I know no such case but the assertion is made that this is a race statute and I submit that the appellants are therefore trying to bring this statute within the purview of those cases Loving versus Virginia, Korematsu, Hirabayashi etcetera, where the statute is automatically a suspect and only the most overriding public policies may justify it.

However, with regard to other matters at the other end of the spectrum, we must ask the question whether or not the discrimination is invidious.

Justice Thurgood Marshall: Well Mr. Porteous, let's get to the other point about classification.

Mr. William A. Porteous, Iii: Yes sir.

Justice Thurgood Marshall: I assume you have no objection to the federal court intervening in cases involving corporations and insurance companies against invidious classifications, that's alright, isn't it?

Mr. William A. Porteous, Iii: Yes indeed.

Justice Thurgood Marshall: Well, what basis is therefore this classification?

Mr. William A. Porteous, Iii: Are you talking about a rational basis for this classification?

Justice Thurgood Marshall: No, I'm talking about anything.

Mr. William A. Porteous, Iii: If Your Honor please, legislation by its very nature must be classified.

I submit that the Congress of the United States is classifying lots of corporations and individuals daily.

It's fundamental to legislation classification is.

If we could treat everybody equally the same, we would certainly indeed have a wonderful system but --

Justice Thurgood Marshall: Why do you classify illegitimate children as illegitimate children and not as children?

Mr. William A. Porteous, Iii: If Your Honor please, I submit that the law has a very definite reason for this and they are well-grounded in the public policy of the State of Louisiana and of all the other states of this nation.

Justice Thurgood Marshall: Including those that have abolished this distinction.

Mr. William A. Porteous, Iii: If Your Honor please, I submit that quite to the contrary, the distinction has not been entirely obliterated.

In many states, I would submit contrary to my friend Mr. Dorsen that New York, Pennsylvania, Indiana, New Jersey would not permit this type of action at all.

Justice Thurgood Marshall: Well, we have 50.

Mr. William A. Porteous, Iii: We have 50?

Many of them have not passed on it, if Your Honor please.

Many of them linked the action for wrongful death to the rights of descent in distribution and in numerable states I submit.

Justice Thurgood Marshall: But Louisiana, now why does Louisiana say that a child who do no fault of his own happens to be illegitimate is denied the right to recover?

Why is it that Louisiana says that people who are guilty of wrongful death can be excused from payment for that if the child is illegitimate?

Mr. William A. Porteous, Iii: If Your Honor, please may I start with the last question and work back to first.

Justice Thurgood Marshall: As you wish.

Mr. William A. Porteous, Iii: Mr. Justice Marshall, first of all, in this case, there was a legitimate relative with the right of action.

The tort fees are -- would have had to pay presuming he was negligent.

That person, however, did not assert the cause of action.

That was the mother of Louise Levy who still had the cause of action under our Article 2315.

Unfortunately for her, she filed a lawsuit too late and was time barred.

Now, therefore the tort fees or does not as it were escaped.

Secondly, turning to the public policy, you should not, if Your Honor please, we submit, consider the statute in vacuum by itself.

You have to consider that it is part of the entire law of Louisiana wherein we're dealing with problems in forced heirship, community property where rights in family, status in family, translate into rights in property.

If Your Honor please, usually when the father or mother as it were has passed away, the person necessary to defeat the claims of a legitimate or illegitimate lies dead.

And Louisiana largely, I submit, because of its unique forced heirship system will not allow illegitimate children to participate in what the law reserves in Louisiana to the legitimate family, the wife and the legitimate children.

There's a public policy of the state of Louisiana that's unique to our forced heirship system --

Justice Thurgood Marshall: I think we have to relate that to the Fourteenth Amendment of the United States Constitution.

Mr. William A. Porteous, Iii: Yes, if Your Honor please, we certainly do and we would submit that there is definitely a rational basis, a rational public policy on the part of Louisiana.

Justice Thurgood Marshall: Of discriminating between legitimate and illegitimate children.

Mr. William A. Porteous, Iii: If Your Honor please, this you classified as discrimination has been part of our law in this United States, these 50 states since -- well, I'm sure they came in to existence.

We have discriminated with the regard to rights and inheritance.

Illegitimate children had no right to --

Justice Thurgood Marshall: That's been changed in the enlightened state, am I correct?

Mr. William A. Porteous, Iii: Some, yes.

Others, I submit --

Justice Thurgood Marshall: Why do you say that solely because a child is illegitimate, a child is denied rights that he would have if his parents had married before he was born?

Mr. William A. Porteous, Iii: Or after he was born, or had bothered to appear before a notary and acknowledge him.

Justice Thurgood Marshall: The child --

Mr. William A. Porteous, Iii: No, the parents.

Justice Thurgood Marshall: But what among those items could a child do?

Mr. William A. Porteous, Iii: A child could do nothing.

Justice Thurgood Marshall: And solely because of what the parents did, the child lose his rights.

Mr. William A. Porteous, Iii: If Your Honor please, we are first of all, I should also say dealing with the privilege here, the privilege of bringing this action.

As conferred by the state, it is not a right as such.

This is not a fundamental First Amendment right, we would submit.

And to continue answering your question Mr. Justice Marshall, the -- you refer to enlightened states.

It's very interesting that all of this is being done by the legislatures of these various states.

We submit that it is not for this Court to legislate with respect to the family law of the states.

It's quite obviously a legislative matter reserved to the wisdom of the various state legislatures.

Justice Potter Stewart: Mr. Porteous, I'm not sure I understood your reference to the -- what you called a peculiar or the unique system and policy of Louisiana of forced heirship?

Mr. William A. Porteous, Iii: Yes sir.

Justice Potter Stewart: I didn't understand that.

Could you --

Mr. William A. Porteous, Iii: Forced Heirship is this.

If a man dies and leaves property, he cannot dispose of it indiscriminately by will.

He must leave -- his wife gets half of course in the community but the remainder of the half, if he has one child, that child must have a third.

If he has two children, that child then or the children then must get 50% and he is free to dispose a 50%.

If he has three children, it would be 66 and two-thirds percent which must go to the children.

Now, when we consider the title to real property, title examiners must examine in to the whole family history of a human being to make sure some heir hasn't been left out.

Hence, you can begin to appreciate why the question of status in family is so important to a state like Louisiana?

Justice Abe Fortas: How do the other states get along with that problem?

Mr. William A. Porteous, Iii: Sir?

Justice Abe Fortas: How do the other states survive the (Voice Overlap) of that problem?

Mr. William A. Porteous, Iii: Excuse me.

I do not believe that the other states have forced heirship.

Justice Abe Fortas: Well, what difference does that make the same problem of examining title?

Mr. William A. Porteous, Iii: If Your Honor please, it's slightly different in examining a title.

You can look at the man's will.

Justice Abe Fortas: A man dies and testate and the property is inherited by X, Y and Z and that appears in the chain of title and no matter what the state is, we've got a problem.

Mr. William A. Porteous, Iii: That would be -- that I would agree with you if Your Honor please.

But let us assume and add to it that the man has left a will then has he properly disposed of his property?

That is the next question.

Justice Potter Stewart: A peculiar thing about Louisiana is that you can't, by will, disinherit to even your children.

Mr. William A. Porteous, Iii: You couldn't disinherit your legitimate children anywhere you want, except if they, I believe made an attempt on your life or something such as that.

And all of these goes back ultimately to something found in the Code Napoleon.

A strong family tradition of legitimacy caring for the heirs, caring for the members of the family, correct familial status at Roman law in the original French civil law was so all important and that remains as part of Louisiana's public policy to the state.

Justice Byron R. White: If Louisiana feels that this sort of a rule is a deterrent to certain kinds of conduct, I would suppose that it might not legitimatize so easily but I gather it's not difficult at all, is it?

Mr. William A. Porteous, Iii: Indeed, it is not sir.

We submit that Louisiana has done her best, has recognized the problem of illegitimacy and attempted to strike a balance between the social interests as it was.

Justice Byron R. White: But if the reason -- if the reason is you don't recognize the illegitimates right in this case is because of some possible impact on the conduct of other parents.

I'm not sure it has much a cut if the person knows that automatically, you can legitimatize your illegitimate children.

Mr. William A. Porteous, Iii: Mr. Justice White, I, my personal feelings would be that idea that illegitimacy is a deterrent certainly is not a very effective force.

I will conceive that.

Justice Byron R. White: And what is the state -- what is the rational basis for the statute other than, I don't understand what you're saying that this is in the family law area and that this is just not the kind of an area that the Equal Protection Clause even know how to apply to.

Mr. William A. Porteous, Iii: That is correct, if Your Honor please.

Justice Byron R. White: That's what you're suggesting and I would suppose that you would suggest that if Louisiana passes the statute and said all the illegitimate children over 20 may inherit and all the illegitimate children under 20 may not that the Equal Protection Clause just wouldn't reach that.

Mr. William A. Porteous, Iii: I submit that is correct.

Justice Byron R. White: And unless you hold, unless you go that far and rule on that basis, they're just -- there isn't much room for upholding or finding any rational basis for the statute.

Mr. William A. Porteous, Iii: Well, if Your Honor please, if we submit that the rational basis as such lies in this whole public policy respecting that.

Justice Byron R. White: But that's -- that's your -- that's what you stand on.

Mr. William A. Porteous, Iii: That's what I stand on.

Justice William J. Brennan: Well, did I misunderstand you then Mr. Porteous?

I thought you're also suggesting that this kind of rule is in the interest of enforcement of the state policy or forced heirship --

Mr. William A. Porteous, Iii: It's part of the overall policy, yes sir.

Justice William J. Brennan: Well now, which is it?

If it were that, I would think you couldn't answer Mr. Justice White that there could be a distinction drawn between illegitimates over 20 and the illegitimate under 20.

Mr. William A. Porteous, Iii: I was thinking further along the questions that Mr. Justice White asked.

Justice William J. Brennan: Well, which is it?

Is this in the interest of -- oh gosh what's the word, morality or something like that or is it in the interest of the state policy of forced heirship.

Mr. William A. Porteous, Iii: It's in the interest, if Your Honor please, we submit at the state policy or forced heirship.

Justice William J. Brennan: Now, what is forced heirship?

Is that something which comes from -- I gather that you're suggesting from a continental and --

Mr. William A. Porteous, Iii: Yes sir.

Forced heirship is simply this.

You could not disinherit your legitimate children by will.

They're entitled to a certain portion of your estate and it's important therefore that we know definitely who your children are.

Justice William J. Brennan: Incidentally, I gather that and I don't think it goes quite that far but certainly in my own state, one can't for example disinherit his wife.

Mr. William A. Porteous, Iii: I see.

Justice William J. Brennan: The state laws require that it will be a minimal portion that she must to see -- most states have that.

Mr. William A. Porteous, Iii: I imagine that certainly and probably they wouldn't --

Justice William J. Brennan: Do you think that would be sufficient to justify similar rule in these other states which don't go as far as you do in other court.

Mr. William A. Porteous, Iii: I think so.

I think so.

Justice Byron R. White: How -- what arrangements in Louisiana do you have this according to birth.

Mr. William A. Porteous, Iii: Upon the birth of any child sir, the physician or midwife, we do have some midwives left is by statute, bound to certify --

Justice Byron R. White: Do you think normally is done?

Mr. William A. Porteous, Iii: Yes sir, it normally is --

Justice Byron R. White: With legitimate or illegitimate children?

Mr. William A. Porteous, Iii: With both.

Anyone in attendance have --

Justice Byron R. White: So is there any real problem in Louisiana knowing whose mother a child is?

Mr. William A. Porteous, Iii: Generally not.

Generally not.

As a matter of fact, the children in this particular case, the matter in which it was proven that they were in fact the legitimate was by the introduction of --

Justice Thurgood Marshall: When was this -- when was this statute passed?

Mr. William A. Porteous, Iii: The present form of the statute was I believe its last amendment was probably 1966.

Justice Thurgood Marshall: When was the original?

Mr. William A. Porteous, Iii: It probably goes back to before the Code of 1870 sometime I believe within --

Chief Justice Earl Warren: Is Louisiana one of those states, southern states that prohibited Negroes from marrying (Voice Overlap)?

Mr. William A. Porteous, Iii: Yes sir, it was.

I submit that since the decision that all of that must go by the board and rightly --

Chief Justice Earl Warren: I understood you to say though that from the very beginning of statehood, Louisiana had always had as a public policy reserving family life and encouraging it.

Mr. William A. Porteous, Iii: That is correct sir.

Chief Justice Earl Warren: Did they know in that situation?

Mr. William A. Porteous, Iii: With regard to slaves?

Yes.

Chief Justice Earl Warren: I submit the answer is in the negative.

Justice Abe Fortas: Now, the opinion of the court below faces for the statute on the morals and general welfare because it discourages bringing children into the world out of wedlock.

They didn't say anything about this forced heir, is that right?

Mr. William A. Porteous, Iii: Indeed it doesn't if Your Honor --

Justice Abe Fortas: Any other decisions or what's the basis for your statement?

Is it the logic of the situation or do you have any authority?

Mr. William A. Porteous, Iii: It's the logic of the situation.

Justice Abe Fortas: You don't have the Louisiana and neither the legislature nor the court has said that, is that right?

Mr. William A. Porteous, Iii: That is correct sir.

This is the very first declaration and I submit that we have by any court.

Justice Abe Fortas: Is there anything I suppose there were debates before the statute was amended in "66"

Mr. William A. Porteous, Iii: None of this is recorded unfortunately in our state, Your Honor.

Justice Abe Fortas: So this is just your deduction.

Mr. William A. Porteous, Iii: This, we submit is the logic of the situation and we believe that under the rules of Morey versus Doud and the other cases that the statute should be presumed to be constitutional in this situation and a rational basis if one can be found presumed likewise.

And if Your Honor pleases, we submit coming back to Louisiana has recognized the problem of illegitimacy.Man has attempted to balance the competing social interests.

She has provided a very ready and easy means whereby persons of illegitimate birth may be legitimated.

The subsequent marriage of their parents and informal acknowledgement as where the children would live with them would make those children legitimate.

Likewise, the appearance before a notary and two witnesses to the effect that this is my child effectively legitimates the child.

Louisiana has also recognized that illegitimates have a very limited right of inheritance when there are no legitimate heirs and illegitimate may be called to the inheritance of a parent.

Louisiana has provided means and statutory means whereby they may prove their proper heirship and the rules of evidence are set out in the civil code in that regard.

But if Your Honor please, Louisiana also has an interest in preserving legitimate family relationships in strengthening a preference in favor of the legitimate relations as opposed to the less fortunate illegitimates and this is part of the public policy of the state and we submit therefore it has a very rational basis.

Furthermore, closing, we would state that the Fourteenth Amendment was never intended to become a vehicle whereby the equal protection of the law's clause was intended to become a vehicle whereby the national government might obtain power with regard to those matters traditionally committed to the states.

Gentlemen, we, on behalf of clients, I thank you for your attention.

Chief Justice Earl Warren: Mr. Porteous, may I ask you this.

What is your enforced inheritance statute do in the case of a mother that has one legitimate child and one illegitimate child?

Mr. William A. Porteous, Iii: The legitimate child sir, would take precedents.

Chief Justice Earl Warren: Would take everything including those to children?

Mr. William A. Porteous, Iii: Yes sir.

Chief Justice Earl Warren: And the illegitimate child would take nothing?

Mr. William A. Porteous, Iii: That is correct, sir.

Assuming she left no will.

If she had left a will with one child in the situation which you posit, she would have had to have left one-third to that legitimate child and the remaining two-third, she could have done with as she pleased.

But if there were no will then she would have had to, everything would have gone to that one legitimate child.

Chief Justice Earl Warren: Mr. Dorsen.

Mr. Porteous, you may have your seat.

Mr. Dorsen.

Justice Abe Fortas: Professor Dorsen may I ask you.

You said you would file a memorandum stating the distinctions that are made in various state laws between legitimate and illegitimate children.

Will you cover aspects of that subject --?

Rebuttal of Norman Dorsen

Mr. Norman Dorsen: I'd be happy to do that.

On page 18 of our brief, we do have a summary of that but I will submit a supplemental memorandum.

I shall be very brief in rebuttal.

First of all, I would like to say that it's not true that the brief of the appellant says that this is a racist statute.

That is not found in our brief and we are not asserting it to this Court.

Now, Mr. Porteous did mention several aspects of Louisiana property law.

I think it's worth pointing to the Court that there is a very recent article in the Tulane Law Review that was published within the last few months on this problem.

It's 28 -- it's the Louisiana Law Review, 28 Louisiana Law Review 110 just published on page 123, the writer of the comment states, "The discrimination in our inheritance law seems no longer justifiable on any rational basis."

This is the discrimination against illegitimates.

And in case one is led to think that this is a newfangled idea, I would like to draw the attention of the Court to an 1851 Louisiana case which of course was decided before the Fourteenth Amendment in which the Court in Dupre v. Carruthers (ph) also cited in Louisiana Law Review set in language that's rather more graphic than I am capable of formulating, "It is true that the legislation has ever failed in this object to honor matrimony and discourage concubinage for probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt and the only effect has been that the guilty parents have eaten the grapes while the child's teeth with tears in his eyes had been set on the edge."

And that's from Louisiana --

Justice Hugo L. Black: What case was that?

Mr. Norman Dorsen: That was Dupre v. Carruthers (ph) 6 Louisiana Annotation 156.

Chief Justice Earl Warren: Is that in your brief Mr. Dorsen?

Mr. Norman Dorsen: It is not because it isn't -- it's in the Article in 28 Louisiana Law Review.

Justice Byron R. White: Mr. Dorsen, what about state regulations that aliens can't vote?

Mr. Norman Dorsen: We think that there are perfectly reasonable grounds for distinguishing that situation from this situation.

Justice Byron R. White: Well, it can't really help -- if Louisiana permitted, that's to say that Louisiana permitted people 18 years old to vote and -- but said only citizens can vote.

Could the child do anything at all about its alien status?

Mr. Norman Dorsen: No, it could not.

Justice Byron R. White: It could be helpless, absolutely helpless.

Mr. Norman Dorsen: That's quite true.

But first --

Justice Byron R. White: You wouldn't apply this rule, your --

Mr. Norman Dorsen: I would not apply this rule because the ground of the distinction would not be on the basis of illegitimacy which --

Justice Byron R. White: But it wouldn't be to alienate your status.

Mr. Norman Dorsen: That's quite true.

Justice Byron R. White: About which nobody can do anything.

Mr. Norman Dorsen: Well, the person can become a citizen in most situations.

Justice Byron R. White: Well, I don't know.

You think the child can become a citizen for --

Mr. Norman Dorsen: Well, it might be.

Justice Byron R. White: Not unless his parents became citizens.

Mr. Norman Dorsen: The difference between an alien and illegitimate among other things is that the illegitimate can never change a status.

The status is determined by the complex of very subtle factors which had been elaborated at some length by authorities that are cited in our brief and the brief of amicus curiae.

I would not think that the situation of the alien and the situation of the illegitimate is fairly comparable though I would concede that the distinction you make on that narrow point is a valid one.

Justice William J. Brennan: What do you have to say to Mr. Porteous argument?

Really, this is in the service of the policy enforcement.

Mr. Norman Dorsen: Well, I have seen no substantial authority in the Louisiana courts to that effect.

It is conceivable that there is such a policy but I do not --

Justice William J. Brennan: Anyway, that's not the ground on which --

Mr. Norman Dorsen: The next thing I was going to say was that the lower court did not attempt to justify on that ground and in any event, that is not this case.

This is a wrongful death action which involves considerations that are somewhat distinct from any of the property consideration.

Justice William J. Brennan: You also have the heirship purpose here.

Mr. Norman Dorsen: That is quite true but the purpose of this particular survivorship statute does have the element of deterring toward feasorship I think the only argument that Mr. Porteous made that seemed to me the solidly base in terms of possibly persuading this Court was that the Fourteenth Amendment was not applicable to the case.

And if that is the ground that he set at one point that he is prepared to stand on, I would say that logically, that would be a ground that would cover the issue.

But apart from that when one turns especially to the particular situation that we're confronted with here, I see no basis at all for validating statute.

Justice William J. Brennan: (Voice Overlap).

Mr. Norman Dorsen: I am not conceding that point.

I'm not Mr. Justice.

Thank you very much.

Chief Justice Earl Warren: Very well.