STANLEY v. ILLINOIS

Print this transcript Transcript: 

Argument of Patrick T. Murphy

Chief Justice Warren E. Burger: We will hear argument next in number 5014 Stanley against Illinois.

You may proceed Mr. Murphy.

Mr. Patrick T. Murphy: Mr. Chief justice and may it please the Court.

For 18 years, Peter Stanley lived with his common-law-wife.

From the time his two minor children Peter Stanley, Jr. and Kimberly Stanley were born, he lived with and supported and build-up a familial relationship with these children.

Chief Justice Warren E. Burger: Is there a finding here of a valid common-law marriage?

Mr. Patrick T. Murphy: Common-law-marriage was outlawed in Illinois I believe at the turn of the century in 1905.

Chief Justice Warren E. Burger: Well, then how -- how can you have a common-law marriage here?

Mr. Patrick T. Murphy: I am using it in the generic sense of the word.

He lived with a woman for 18 years whom he called his wife.

Chief Justice Warren E. Burger: Of course we are dealing with legal issues here so that colloquialism really is not very relevant, is it?

Mr. Patrick T. Murphy: I assume not, Your Honor.

Joan Stanley died and sometime thereafter Peter Stanley asked his long time and trusted friend, the Nesses to care for his children.

Two months thereafter a dependency petition was filed in Juvenile Court of Cook County and there was a finding of dependency.

It is much as -- and the children were made wards of the Juvenile Court of Cook County.

In as much as a finding of wardship as a final order, his only way to get around this order was to appeal which he did do.

Now the issue in this case is whether -- is simply whether it is a denial of equal protection for the State of Illinois not to recognize Peter Stanley for what he was, that is the father of this two minor children and the non-neglectful father of this two minor children and whether it was a denial of equal protection for the State of Illinois who treated Peter Stanley as something less than a stranger that is giving no right to custody control or even visitation with his two minor children.

Chief Justice Warren E. Burger: Was there in any occasion in that procedure that you have just described to determine paternity of the children?

Mr. Patrick T. Murphy: No, it was assumed by the state’s attorney and by the Trial Court and by all parties that he was the father.

In fact, the assistant state’s attorney did state that there was no -- that they were contending that Peter Stanley was not the father of the two children, that never became an issue.

Of course for equal protection analysis a classification must be reasonable and not arbitrary and rest upon some ground of difference having a fair in substantial relation to the object of the legislature.

So that all persons similarly situated shall be treated a like.

Further of course, certain interests that are disadvantaged require a more strict scrutiny by this Court.

Now it is difficult for us to argue as to just what the state purpose is behind the statute, behind this discriminatory classification are.

The State and the Illinois Supreme Court argued one purpose in its brief in opposition filed in this Court argue the second purpose and its brief in this Court seem to argue yet another purpose to make the statutory scheme stand the scrutiny of this Court.

However, there seems to be a threat running through it and that is that somehow it is in the best interest of minor children that their fathers who have built up familiar relationships, but who have never married their mothers be treated as strangers to the children.

However, an analysis of Illinois Law and of the historical background in Illinois law will demonstrate, we believe that the purpose behind the discriminatory scheme in Illinois was simply for the better administration of the Illinois Adoption Act.

Now, the state alleges that the welfare of children in Illinois is promoted by the making of the illegitimate father a stranger to his child by faired out good and bad unwed fathers.

We believe that an examination of this will show that this was not the purpose of the general assembly and secondly even assuming it were that there simply is no rational relationship between this alleged purpose and the classification.

First of all it does not faired out good and bad unwed fathers.

It merely grants to the uninterested in abandoning and perhaps neglectful unwed father his wish of not being a father to the children and allowing him to do what he wishes to.

It places the burden upon the unwed father like Peter Stanley to come in and show by a greater burden of proof than a neglectful parent has to that he wants his children.

But the state simply does, it takes the children away from the parent, places them in either an orphanage or a foster home and then tells the father, if you want them back you must go back to Adoption Court and show not that you are non-neglectful and not that you are something less than indigent, but that you are not indigent and that you are very suitable parent.

Now --

Chief Justice Warren E. Burger: Was there any impediment that you can think of that would have prevented the petitioner here from carrying out an adoption of these children or legal adoption?

Mr. Patrick T. Murphy: If Peter Stanley could have adopted his children, we would not be here today.

Peter Stanley was in the same position as any wed father would have been whose wife had just died and who was also indigent.

Chief Justice Warren E. Burger: Where do we find that out?

Mr. Patrick T. Murphy: He left his children with his long time and trusted friend, the Nesses and he said, “Would you take care of them?”

It is in the record, same thing that a wed father might have done.

So obviously, Stanley was in no position to care for his children.

Furthermore the probation officer states that Peter Stanley was indigent, so he has -- he is indigent.

He is in a position not to care for his children at that time, of course he could not adopt.

There is no Court in the world that would have allowed Stanley to adopt his children plus having the opprobrium of being an unwed father and all through its brief the state says unwed fathers are bad people or historically we know they are abandoning people and then they come across and say, well all Stanley has to do his run down to the adoption Court to adopt.

The same opprobrium which the State attaches to Stanley in its brief the adoption Court is going to attach that Stanley also.

Unknown Speaker: Let me carry that question to one step further.

Did he institute in adoption proceeding?

Mr. Patrick T. Murphy: No, he has not.

Unknown Speaker: He has not fought for custody either?

Mr. Patrick T. Murphy: At the time, that this proceeding arose it was theoretically impossible for Stanley to apply for custody.

Section 62 of the Paternity Act in Illinois states that no parent has the right to custody -- no unwed father has the right to custody or control --

Unknown Speaker: But they have been approved at that time.

But do you gather some other –- get some other inference?

Mr. Patrick T. Murphy: No, the state and we have assumed for argument here that they would allow Peter Stanley to have custody.

Unknown Speaker: But he has not applied for it?

Mr. Patrick T. Murphy: No and for this reason that after the Stanley decision came down from the Illinois Supreme Court, the Illinois Appellate Court in the case of the Vandolin v. Vandolin (ph) upheld the former Illinois Supreme and Appellate Court decisions in denying the putative father even the right to visit his children.

And in fact pursuant to that decision, the attorney general’s office moved in the Juvenile Court to terminate all visitations between Stanley and his children and the Juvenile Court in fact did terminate such visitation.

It was only after this Court granted certiorari that they even allowed Stanley to start visiting his children again.

So as a theoretical –- it was theoretically impossible, even practically it was out of the question.

Stanley still indigent and still not married.

I point out that the state’s attorney in the Court below when he suggested ways in which Stanley might regain some type of custody over his children, suggested that Stanley marry in order and establish an orderly family situation that at times can be rather difficult thing for any male.

Unknown Speaker: This is your goal of constitution argument in equal protection?

Mr. Patrick T. Murphy: Equal protection, Your Honor.

We are not talking about custody even if Stanley --

Unknown Speaker: As compared (Inaudible)?

Mr. Patrick T. Murphy: Well, these lines are so arbitrarily drawn here.

Stanley is over -- there is over classification from one point of view.

We are putting Stanley and similar petitioners into a classification of all unwed fathers.

We are just making the presumption that all unwed fathers are bad people, the same way we --

Unknown Speaker: (Inaudible)

Mr. Patrick T. Murphy: As against not only unwed mothers, but as against wed but widowed fathers for instance or wed and neglectful fathers or wed and neglectful mothers or unwed neglectful mothers, we do not make these presumptions.

It is like saying that all Japanese are security risk.

We are saying all unwed fathers are bad people and they must go through this long arguist degrading and expensive process to establish some rights.

Chief Justice Warren E. Burger: You challenge the classification as being unconstitutional per se, I take it under the Fourteenth Amendment?

The classification of --

Mr. Patrick T. Murphy: Yes, Your Honor.

Chief Justice Warren E. Burger: Wed or unwed, but are there not some differences in a support proceeding for example if they -- if a support proceeding were brought against a father, in support of his illegitimate children under the state law, there would be a greater burden with respect to proof of his responsibility than there would be of a married father, is that not so?

Mr. Patrick T. Murphy: No sir and under Section 53 if I understand your question Mr. Chief Justice, under Section 53 of the Paternity Act, the unwed father has the responsibility of maintenance, board, education and welfare.

Chief Justice Warren E. Burger: Once you have established that he is the father, now here he admitted it, so the proof in this particular case is not required, but if he denied it the state would be -- someone would be put to the burden of establishing I is a fact, would they not?

Mr. Patrick T. Murphy: Well I -- our argument is --

Chief Justice Warren E. Burger: In that not the --

Mr. Patrick T. Murphy: The State would have to prove that he were the father that is correct.

Chief Justice Warren E. Burger: Then is it not historically true in the proceedings of this kind, for the support of illegitimate children that someone must prove the paternity?

Mr. Patrick T. Murphy: In the case of abandoning fathers that is correct.

Chief Justice Warren E. Burger: Well in paternity cases generally, it must be to be established by proof or admit it, is that not true?

Mr. Patrick T. Murphy: That is true.

Chief Justice Warren E. Burger: Well, then I come back to the question.

Is that not a valid basis for the classification?

Mr. Patrick T. Murphy: No, Your Honor because again we are making the assumption that all unwed fathers are the type of people we have to drag in the Court by their neck and say pay, but that is simply untrue.

There are thousands, obviously of unwed fathers who simply cannot marry the mothers for many, many reasons.

One of which the state admits is that there are many people who are too poor to get a divorce and simply take up living with someone else and build the familial relationship with their wife.

These people do not have to be dragged in Court, but yet they are familial fathers and why should we classify these familial fathers and put them in the broad classification of bad fellows and that is what the State of Illinois has done.

That is why we are saying these lines are so broadly drawn.

The State of Illinois simply could have said unwed fathers who abandon their children or who are unknown or who do not show up within two months will be considered strangers to their children.

And they would have accomplished what they wish to accomplish.

That simply would be the –-

Justice Byron R. White: What does the state have to show to declare dependent, the children of a widow or widower?

Mr. Patrick T. Murphy: The father and mother have never married.

Justice Byron R. White: Well, let us assume they were married and mother is dead and the father is indigent, he cannot --?

Mr. Patrick T. Murphy: It can be -- they can prove neglect.

Justice Byron R. White: But they have to prove neglect?

Mr. Patrick T. Murphy: That is right.

Justice Byron R. White: Indigency is no -- is not enough?

Mr. Patrick T. Murphy: Indigency is not enough.

Justice Byron R. White: Because there are other state funds to support him and his child together?

Mr. Patrick T. Murphy: Indigency is never a requirement to find neglect, to prove neglect and you must prove it beyond a preponderance of the evidence and all your rights are not cut off.

You have the right to visitation and right to name his religious affiliation and the right to (Voice Overlap)

Justice Byron R. White: But under the statute he is not a parent, is that it?

He is not being the parent.

Mr. Patrick T. Murphy: He is not a parent.

He is a stranger.

Justice Byron R. White: His only recourse here is possibly to be appointed a guardian or to adopt the children?

Mr. Patrick T. Murphy: He cannot.

Justice Byron R. White: Alright, but let us say even if he could?

Mr. Patrick T. Murphy: Even if he could, it does not change the posture of this case.

Justice Byron R. White: He would be a guardian not a parent.

Mr. Patrick T. Murphy: That is correct.

Justice Byron R. White: And if he adopted them he could become a parent?M

Mr. Patrick T. Murphy: That is correct.

Justice William J. Brennan: Whereas the unwed mother I gather is regarded as a parent?

Mr. Patrick T. Murphy: Oh certainly!

Justice William J. Brennan: And if the children are to be taken from her, it is only for neglect as a mother?

Mr. Patrick T. Murphy: That is correct.

Justice William J. Brennan: (Inaudible)

Mr. Patrick T. Murphy: That is correct.

And while the mother is alive the state will not interfere with the familial relationship of the father either except through a neglect proceeding.

I would --

Justice William J. Brennan: But it is -- am I right then the equal protection issue comes down to this, that Illinois will allow an unwed mother in his circumstances either be regarded as a parent for whatever purpose and that is important, but will not allow an unwed father in these circumstance regard as parent, is that it?

Mr. Patrick T. Murphy: It is true.

Justice William J. Brennan: And that is --

Mr. Patrick T. Murphy: That is the narrow equal protection argument.

We think it is broader than that.

We think the lines are just so arbitrarily drawn in other words why treat Stanley any different then you would a wed father in similar circumstances.

We agree that is the primary equal protection argument.

Justice William J. Brennan: Incidentally I know that your brief was filed before this Court decided to bind the (Inaudible), you do not cite it in your brief, although the respondent does.

Do you think that the decision of the Court in that case has any bearing on the issue in this one?

Mr. Patrick T. Murphy: No, Your Honor.

Justice William J. Brennan: That involved -- the Court said there was no equal protection for illegitimates under the -- or it was inherited under the Louisiana Statute?

Mr. Patrick T. Murphy: That is correct.

Justice William J. Brennan: You do not think that has any bearing?

Mr. Patrick T. Murphy: Entirely different case.

Justice Byron R. White: The state says that the unwed father has limited responsibilities for the child until and unless he adopts or something like that and hence that justifies treating him differently.

But what is the -- how are his responsibilities different from the unwed mother’s responsibilities vis-à-vis the child?

Mr. Patrick T. Murphy: Well, of course they are not different at all.

As I pointed out previously, Paternity Act is the father, unwed fathers have the obligation of support, maintenance, welfare and education.

And what other responsibilities that any parent had except the law and we cannot legislate that.

Secondly, the state really misstates these statutes.

They do not say that no parent, and Your Honors can read the statutes, they do not say, no parent, only a parent has responsibility as the state lays out.

They talk about one who has cut -- most of the statutes say one who has custody and control for any father, mother or person who has custody and control and I think here, and I would further point out that the Paternity Act and the Juvenile Court Act are the only two acts in State of Illinois in general assembly as attempted to define the word parent as excluding the unwed father.

Justice Byron R. White: Well, let us assume the state -- under the state law though it was perfectly clear that an unwed father until he adopted the child had no obligations to support the child, let us just assume that, but that the mother was treated as a parent with those responsibilities, would not that be a --

Mr. Patrick T. Murphy: It would not change the posture of this case.

If the father had build-up a familial relationship with his children and there was a biological relationship as well, we believe that it would not change the posture.

I would further add to an early question that Mr. Chief Justice asked me as to why could have Stanley not adopted.

Let us assume that Stanley put in for adoption and if it were denied because he was indigent or still not in any situation to adopt his children, he then would be forever in all probability restricted from adopting his children.

They could be placed up for adoption if someone else could adopt them without notice to Stanley and that as a very practical matter why he did not asked them.

Justice Potter Stewart: It was my understanding that you have implicitly concede that the State could make -- put some -- that the State could put some unwed fathers in this category of strangers to their illegitimate children, i.e. fathers who were say married and acting as father in another family or fathers who were unidentifiable or unfindable but that the state has constitutionally compelled to create a sub category for the class to which you tell us your client belongs that is a good suitable interested unwed father.

Is that my understanding?

Mr. Patrick T. Murphy: If --

Justice Potter Stewart: Is that the way of putting your case?

Mr. Patrick T. Murphy: If for the better administration of the Adoption Act, the state feels that it cannot notify abandoning unwed fathers and if they are unknown then we might concede it is not the case here.

We have considered that if we might --

Justice Potter Stewart: As I understand it you claim that you -- that your client belongs to an identifiable sub-classification of unwed fathers which classification has a right to constitutional protection under the Equal Protection Clause of being not treated differently from unwed mothers, i.e. that sub-classification is good, suitable, interested unwed father.

Mr. Patrick T. Murphy: That is correct.

Justice Potter Stewart: That is your argument, is it not?

Mr. Patrick T. Murphy: That is correct

Justice Potter Stewart: And of course unwed fathers such as that I suppose have it within their power to correct the situation by becoming wed fathers, unlike the previous case where if you are born a woman you are a woman and you cannot, I would say, correct the situation as you can alter the situation?

Mr. Patrick T. Murphy: Unwed fathers, in the situation of Mr. Stanley, have an opportunity to correct the situation by that.

Justice Potter Stewart: He could have married the mother of his children?

Mr. Patrick T. Murphy: Well, the problem does not arise while the mother is alive.

It only arises when the mother dies and at that time it becomes biologically impossible perhaps theologically possible to marry her.

As long as the mother is alive state --

Justice Potter Stewart: It was within his power to become aware about it?

Mr. Patrick T. Murphy: It was in his power but the problem did not arise and (Voice Overlap) the state did not interfere and cannot interfere under the relationship of that.

Justice Harry A. Blackmun: Do you think Mr. Murphy this case would have come up the way it did below if Stanley instead of being indigent had been in the position, financially to provide for these children?

Mr. Patrick T. Murphy: I tend to believe that if Stanley did not place the children with the Nesses it would come out differently.

I do not know. I do not think it is difficult to say.

Once charges were brought, the Court had to make the only finding it could have.

There is no defense --

Justice Harry A. Blackmun: What I am really trying to get at, is his indigency have a controlling weight in the decision?

Mr. Patrick T. Murphy: No.

Justice Harry A. Blackmun: I notice that you quoted in page 5 of your brief that a probation officer who said that if he had been in the position to financially to provide properly for the children in the future or to become so, there might be a reconsideration of the case.

Mr. Patrick T. Murphy: There would -- the probation officer was talking about perhaps we give him custody if he --

Justice Harry A. Blackmun: Could give him custody?

Mr. Patrick T. Murphy: Right and I think all these people really -- I was not at the trial.

But I think all these people merely trying to placate Stanley who assumedly was very upset to find it.

Justice Potter Stewart: Before we – while you are still interrupted, perhaps a word. Who is this other child who keeps -- whose names keeps getting mentioned, mentioned throughout the brief here, Karen is her name?

Mr. Patrick T. Murphy: Yes, there was an older daughter who was 17, there was a neglect petition filed against Stanley and it was proven against him.

I was the prosecuting attorney in that case.

Justice Potter Stewart: This was his legitimate child by a previous marriage?

Mr. Patrick T. Murphy: Yes, no by the same the marriage.

Justice Potter Stewart: By the same marriage.

And he was the target of neglect?

Mr. Patrick T. Murphy: That is correct.

Justice Potter Stewart: With respect to that daughter?

Mr. Patrick T. Murphy: That is correct. =

Justice Potter Stewart: Did that have anything to do with the decision in this in case?

Mr. Patrick T. Murphy: I believe that it may have been something to do with charge being brought.

It has absolutely nothing to do with the decision.

From the Court’s point of view and the from the state’s attorney’s point, it would have nothing to do with the decision.

In the probation officer’s point of view I do not know.

But I -- and I am speaking outside the record now from knowing the Court and the state’s attorney personally in the matters obviously which are not relevant.

Justice Potter Stewart: You mean, that may not be relevant but Karen’s name keeps being mentioned (Voice Overlap) throughout the brief and I wanted to --?

Mr. Patrick T. Murphy: I was not the prosecuting attorney.

I was the attorney who prosecuted the case.

There is a slight difference.

The state’s response -- well we have covered most of the points already.

I would like to point out that the adoption that it is our point of view -- that it is what we believe that the statutory scheme is what is it is because general assembly wished to make plans for the better administration of the Adoption Statute.

Between the years 1827 and 1949 in Illinois, unwed fathers had the right to custody of their children merely for the asking.

Between 1827 and 1872, all they had to do is demand from the unwed mother the child and she had to deliver them up or the father could stop support payments.

Between 1872 and 1949, it was after the child’s tenth birthday.

In 1946, the Illinois attorney general issued an opinion which held that was stated that adoption agencies would after that point have to notify any unwed father of adoption proceedings.

And if in fact, the unwed father were unknown then the guardian would have to be appointed for this purpose.

In 1949, the First Convenient General Assembly thereafter the Illinois State Legislature amended the act to state which the predecessor of today’s Paternity Act that no unwed father would have any right to custody or control over his children and in Illinois Law Review article that we cite here point out that this was merely to amend the Paternity Act to keep it in line with the Adoption Act.

The Juvenile Court Act was passed in 1965.

There is no historical background on why unwed fathers are excluded from the definition of parents except the obvious one of making this in line with the Paternity and Adoption Acts in the State of Illinois.

And it seems quite obvious that better administration of the Adoption Act is not a compelling reason.

In fact, it is not rationally related at all to the classification here and as a practical matter, it does not succeed in what it wants to do because again it merely allows the uninterested, abandoning and unknown unwed fathers not to come into Court while it forces the suitable and caring for unwed fathers to come to Court to demand some type custody.

And if in fact, the Adoption Act actually did force these unwed fathers to come before it, it would merely clog the Adoption Courts with unwed, but suitable fathers seeking to adopt their own children.

I think what happened here, we believe what happened here is that the general assembly never considered this subclass of the fathers and simply made a law to make the Juvenile Court Act fit in with the Adoption Act never considering unwed but familial fathers and of course this type of father like Japanese, Chinese and Black people and indigent criminal appellants did not have at that time much of a lobby in the state legislature.

So for the reasons which we have stated in the brief, for the reasons we have argued, we would ask that this Court reverse the opinion of the Illinois Supreme Court.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Murphy.

Mr. Friedman.

Argument of Morton E. Friedman

Mr. Morton E. Friedman: Mr. Chief Justice and may it please the Court.

Petitioner before this Court seeks automatic legal control of these persons -- these children assumed to be his.

The state demands only that if he has to gain legal rights over them and if he is to impose upon them, legal responsibilities towards him that he do so by means of an adoption proceeding comparable for the purposes of this case to a marriage, a normal marriage between husband and wife.

Marriage at least in part, is a contract between the parties and between the state in which the parties undertake from the moment of the birth of a child of the union, legal responsibility not just for the support of the child as is the case with an unwed father, but legal responsibility for a wide range of human activities, including the schooling of the child, the medical care and needs of the child, criminal penalties against abandoning the child.

Through the adoption proceeding, the state is asking that the petitioner Stanley signify his willingness to accept those same responsibilities which are imposed upon all females who bear children --

Justice Byron R. White: Would --

Mr. Morton E. Friedman: And upon marriage.

Justice Byron R. White: Tell me under the Illinois Law, what responsibility does the unwed have for his child?

Mr. Morton E. Friedman: Only monetary sir.

Justice Byron R. White: Well, for medical -- for medicine?

Mr. Morton E. Friedman: Yes sir.

Justice Byron R. White: For education?

Mr. Morton E. Friedman: Yes.

Justice Byron R. White: For food and shelter?

Mr. Morton E. Friedman: That is correct.

Justice Byron R. White: Clothes?

Well, then what are we talking about, what is the difference between the married and the unmarried?

Mr. Morton E. Friedman: The married father cannot take his children, cannot abandon his children, cannot walk away from them on the street.

The married father cannot permit his children to associate in a place of prostitution or with thieves.

A married father is responsible for attending to the medical care of the children not just providing the money by which someone else can accomplish that at or have been --

Justice Byron R. White: So the unmarried father under Illinois Law is not subject the criminal penalty associated with neglect?

Mr. Morton E. Friedman: That is correct sir.

He has no criminal penalties attached under the laws relating to financial support of the child.

Through an adoption proceeding, he would be regarded as a parent and he would have imposed upon him all the responsibilities of that parenthood.

Justice Byron R. White: Well, this maybe so but you still have to reach the question of why does Illinois treat the man different from the woman in this respect?

I mean, this is sort of a bootstrap argument. We do not make him responsible, therefore, we treat him differently and because we make the woman responsible we can treat her differently?

Mr. Morton E. Friedman: Because of the fact sir that through a combination both of history, cultural patterns and real physical differences between the sexes they are different sir.

It is the position of the state that, it is a combination of these factors, no one of which we think can be isolated.

There are real differences between male and female, differences in their abilities and drives directed toward child rearing.

Justice Byron R. White: You do not think the woman would have an equal protection claim who said that she should not be criminally penalized for certain acts when the father of the child is not subjected to same (Inaudible) --

Mr. Morton E. Friedman: No sir, she would have no such claim unlike the case, the invidious discriminations of race or religion in which the classification is unrelated to a permissible state objective.

The classification here imposing upon her burdens is related to the permissible or compelling state objective of promoting the welfare of the child.

If the state imposes on the female the obligations that it does not impose on the married male --

Justice Byron R. White: Why should it impose in terms the welfare of the child, why should it impose the same obligation on the male?

Mr. Morton E. Friedman: Because unlike the case of married male and female in which the parties have signified their willingness to work together to the rearing of the children, the male and female in this case may or may not be willing to work together towards the common end of child rearing.

What the state would be doing if it imposed upon the petitioner the demand that he accept all the responsibilities of parenthood is to interject him into the family of the mother and child and to create two conflicting parties competing for legal control of the child.

The situation does not arise in the marriage simply -- at least initially because the parties have signified their willingness to work together.

Since it is necessary to impose upon at least one of the parties, legal responsibility for the welfare of children and since necessarily the female is present at the birth of the child and identifiable as the mother, unlike the case of the married father where the law presumes quite overwhelmingly that he is in fact the father of the children born to his spouse, unlike that case as to the unmarried father there are no presumptions as to who the father is, there is an unknown factor except as the female may state who the father is.

In the case of the father who is married to a woman other than the mother of the child requiring a putative father to accept all the responsibilities of a married father is to in effect create multi-family units and destroy the nuclear family as we know it today.

One cannot impose on the unmarried father, or the father who is unmarried to the mother of the child responsibilities or in rights without giving him responsibilities to require the state to impose on a potentially hostile father responsibilities outside of his own marriage unit is to tamper with the family as we know it in society today.

I would submit that that was one of factors in the case of Levine versus Vincent upon which the Court based its decision.

Unlike the case of race or religion, the distinctions between male and female are real.

They are founded upon biological and historic facts which are valid today.

There have been a number of suggestions as to the facts of this case.

The only fact that was relevant in the Juvenile Court below was whether or not Peter Stanley was the legal father as defined by statute.

No other fact was relevant to the inquiry below.

No suggestion was made as to the constitutionality or lack of it of the statutes.

The question of the proofs involved were thereby not relevant and are not properly before this Court.

Chief Justice Warren E. Burger: Are you suggesting that in the present state of the record we should view this case as one in which there had been a paternity proceeding and it had been judicially determined that this man was the father of the child or children?

Mr. Morton E. Friedman: No, Mr. Chief Justice, the contrary I am suggesting that the only fact that this Court can take cognizance of is that Peter Stanley, the petitioner was not married to the mother of the children.

The need for a proceeding --

Chief Justice Warren E. Burger: Well, let me put it in a different way.

If there had been a paternity proceeding and there had been a finding of fact, and the conclusion drawn was that he was indeed the father, would the case be any different?

Mr. Morton E. Friedman: No sir, not at all.

The fact that he had been found to be the father of the child would not give him any greater rights than he has under the present state.

The problem remains however that there has been no proof that Peter Stanley, in this record there has been no proof that Peter Stanley in fact is the father of these children.

He may well be --

Justice Byron R. White: Well that was irrelevant too under the Illinois Law because he is a father, he is not a parent.

Mr. Morton E. Friedman: That is correct sir, which I suggest that by noting that there has to be a judicial proceeding to determine the rights of one who claims to be a legal father over the children and who would seek to gain legal control over them.

As the matter now stands Peter Stanley claims to be the father, he maybe if in a proper proceeding for adoption or guardianship he asserts his parenthood.

If he asserts his 18 years supposedly of living with the children these matters may be very relevant to a determination of what would be in the best interest of the child.

We suggest that is the only relevant consideration.

Justice Byron R. White: You are saying until he has proved to be the parent the equal protection point is not right for any parent, does he not?

Mr. Morton E. Friedman: That is correct sir.

The --

Justice Byron R. White: This of course (Inaudible)

Mr. Morton E. Friedman: The Illinois Supreme Court did not pass directly on the matter noting that petitioner had not challenged it in the Lower Court and left him to his remedy of applying for adoption or guardianship.

Justice William J. Brennan: He has to take it that not denial of equal protection that treats the unwed father different from the unwed mother?

Mr. Morton E. Friedman: Correct sir.

Justice William J. Brennan: So the point was raised, passed on (Inaudible) and it was with your with your case is the case here on that premise?

Mr. Morton E. Friedman: Yes sir.

Justice William J. Brennan: Do we not have to reach it?

Do we not have to reach the equal protection issue on that premise and decide it?

Mr. Morton E. Friedman: Only if this Court does not accept the determination of the Supreme Court of Illinois that since the petitioner Stanley --

Justice William J. Brennan: No, you do not understand question.

Mr. Morton E. Friedman: I beg your pardon?

Justice William J. Brennan: My question is the premise in which the case here is that he is the father of the children, is it not?

Mr. Morton E. Friedman: Yes sir.

Justice William J. Brennan: Alright and the equal protection argument is made on that premise?

Mr. Morton E. Friedman: That is correct.

Justice William J. Brennan: Alright.

Mr. Morton E. Friedman: But this Court need not to accept as a fact that the petitioner Stanley as a matter of fact is the father of the children.

Otherwise any party who claims to be the father of the children whether in fact he was or not would have the same right as Peter Stanley to bring the case before the Court.

The state in this case does not nor has it interfered with the relationship of those people who would seek with or without marriage to rear children.

The statute in this case by not imposing has no parents upon the children of a union whether in or out of wedlock is seeking but to secure for the welfare of these children one responsible parent to account to the state for their welfare.

We think this interest compelling.

We think it the most compelling interest the state may have.

The petition in this case reads as a neglect petition although it is not so.

The petition as originally filed was not a dependency petition.

It was filed as a neglect petition.

The question of Stanley’s visitation is not before this Court.

In fact, he has been visiting the children pending the outcome of this case.

Nor is the question of the petitioner’s indigency before the Court, the question not being raised by Stanley in the Court below.

We submit both based on history or culture, the very real differences of between male and female and very real differences between the married father and the unmarried father, in terms of their interest in children and their legal responsibilities for their children, that the statute here fulfills the compelling governmental objective of protecting children born in or out of wedlock and not to be affirmed.

Justice Potter Stewart: You have -- I am not sure on if I understand you when you talk to, rely upon which you call our culture, rely upon history and upon physical differences but that I understand and I understand the interest in adoption and the interest of legitimizing the children.

I do not quite understand what you mean by the relying on what you call our culture?

Mr. Morton E. Friedman: Only that through a combination of historical circumstances brought about sir at least in part by virtue of physical differences between the sexes.

It is a pattern within our society that the woman is primarily responsible in the rearing of the young children.

The state has properly taken cognizance of this existing condition which is a result of real differences between male and female married and unmarried males.

Justice Potter Stewart: So our culture as you put is really -- that is not an additional -- that is not an additional support for the state classification that is additional to history or the physical?

Mr. Morton E. Friedman: No sir.

Justice Potter Stewart: Distinguishing characteristics?

Mr. Morton E. Friedman: No sir, (Voice Overlap) it is merely a product of those --

Justice Potter Stewart: Product of those?

Mr. Morton E. Friedman: Yes, Your Honor.

Justice William J. Brennan: Well, I guess you –- Is this what you summed up at page 25 while a temperament toward child rearing may be largely a product of societal condition, these temperamental patterns have been so deeply ingrained within rest of the civilization, that they cannot be ignored?

Mr. Morton E. Friedman: Yes, Mr. Justice Brennan and it is the holding of White versus Florida.

We think that holding, particularly as noted by Dr. Mead (ph) on the following page quote by quote is significant in the sense that it is a real fact of life that as a combination of these circumstances none of which can be neatly isolated, that is a combination of these men and women do not have the same direct interest in child rearing, that the Illinois legislature has properly taken cognizance of these very real differences which have never been suggested to the other than real differences in child rearing.

Justice Thurgood Marshall: Mr. Friedman suppose Stanley had married this woman he had been living with two days before she died, what would his position be?

Mr. Morton E. Friedman: Mr. Justice Marshall, he would then be classified as a legal parent and entitled automatically the custody and control of them.

Justice Thurgood Marshall: The same man?

Mr. Morton E. Friedman: Yes sir.

He would be --

Justice Thurgood Marshall: But he changed, when he married he changed?

Mr. Morton E. Friedman: No, he did not change one bit.

He performed a legal act that imposed on him by law responsibility for the children beyond mere money payments by the act of marriage.

Justice Thurgood Marshall: I do not see any change of anything.

Mr. Morton E. Friedman: He change not at all but by the act the marrying the woman he became liable under law for more responsibilities than he had before. He became liable for the schooling, for sending the child to school.

Justice Thurgood Marshall: That makes him more fit parent?

Of that of a fitted parent or that a person who -- you said the primary interest of the child, I thought I understood you?

Mr. Morton E. Friedman: That is correct sir.

Justice Thurgood Marshall: Well as to the child, what difference?

Mr. Morton E. Friedman: That Peter Stanley be now after marriage is legally responsible for his welfare and as to the child, that the child has legal duties towards Peter Stanley.

He is responsible at the time of the legal relationship to support the adult parent who cannot support himself.

Justice Thurgood Marshall: Is it not true that the fact Mr. Stanley just caught by all of this custom and practice and everything that has been going on for all these years, that in fact, is not all, does he?

Mr. Morton E. Friedman: Not at all Justice Marshall.

Justice Potter Stewart: Or have they change his status it certainly among other things made him ineligible to legally marry anybody else, has not it?

Mr. Morton E. Friedman: I am --

Justice Potter Stewart: Well, once you marry, at least again in our culture and under our laws, if a man marries a woman it changes his status at least to the extent that he his legally ineligible to marry anybody else until he divorces that wife or she died?

Mr. Morton E. Friedman: Yes, Mr. Justice and in addition he is responsible too not desert and tend for the children.

Justice Potter Stewart: Right.

Mr. Morton E. Friedman: By the adoption formality which is exactly comparable in this case to the formality of the marriage ceremony he is merely undertaking the same rights as a male does by the act of marriage.

But more importantly, with a human being who is in existence when a person gains the rights of parenthood over the child, there is imposed by Illinois law, legal responsibility on the child.

To impose these responsibilities without consulting the interest of the child either by the desire of the child’s natural mother in marriage or by the supervision of the Courts in an adoption proceeding, to impose legal responsibility on a child after he is in existence to care for an adult parent and to do so, automatically, without consulting the interest of the child is to deny that child due process of law.

When the child gains a parent, he gains legal responsibilities.

It may or may not be in his best interest to gain those legal responsibilities toward his parent.

That problem does not exist between a married couple where the female gives birth to the child because the state imposes from the moment of birth onward those reciprocal rights and duties between male and female, between the children to the parents and the parents to the children.

The adoption proceeding which the state has required is but a substitute for that marriage ceremony, that social contract with the state where the parties have agreed to accept those responsibilities.

Justice Byron R. White: Yes but here the unwed father cannot adopt just like going in and saying but I want to adopt and I want to -- I will file a piece of paper that I accept all the responsibilities that you are saying I do not have.

The state -- he cannot just do that and just have it for the asking.

He must shoulder a substantial burden of proof to show his fitness and his capability in taking care of the children.

Mr. Morton E. Friedman: That is correct Mr. Justice White but to give the father the children for the asking of him to make their legal custody and control dependent only on the will of the father is to make the children chattels and to deny to the children any opportunity and with that in person --

Justice Byron R. White: Well that is -- but we are still talking about the position of the father with respect to the unwed mother, the position of the father with respect to say they divorced, the divorced father and several other categories?

Mr. Morton E. Friedman: But those -- but the unwed father while he does have a biological relationship or he may have with the children that is not the determining factor.

Parenthood is more than biology and it is more than support.

It encompasses within our society a very wide range of human activities.

Justice Byron R. White: Well, but the state must concede that there is a quite a category of unwed fathers that are going to abandon their children or who refuse to act with respect to them like a parent and you must concede that there is quite a category of unwed mothers who abandon their children?

Mr. Morton E. Friedman: That is correct sir.

Justice Byron R. White: And yet we treat all unwed mothers in one way and all unwed fathers in quite a different way?

Mr. Morton E. Friedman: Initially I would observe.

Justice Byron R. White: And it would not do him any good in this dependency hearing to say, look I am fit.

I am ready to assume all the responsibilities that you want me to assume.

That is just irrelevant.

Mr. Morton E. Friedman: In answer to your last question Mr. Justice White.

No, it would not do him any good to merely lay an automatic claim to the children.

The State would require their interest to be consulted before they are handed over like shuttles chattels to the father.

Chief Justice Warren E. Burger: But at the same you concede that they are handed over to take your term to the natural mother without any inquiry of that kind, is that right?

Mr. Morton E. Friedman: That is correct.

Chief Justice Warren E. Burger: And you justify that on the grounds of these cultural and biological and historical practice?

Mr. Morton E. Friedman: Yes, Mr. Chief Justice and the fact that the woman is necessarily present when the child is born, she is there and identifiable.

Chief Justice Warren E. Burger: But does that not go only to the question of whether he is in fact the father which I had understood you to have conceded?

In this proceeding, this record is filled with illusions to the fact that everyone seems to concede this man to be the father.

He insists upon it.

He is referred to as the father only with the adjective unwed.

So is it not the fact of paternity out of the case?

Mr. Morton E. Friedman: In fact the paternity is not relevant to that.

It is in case and that sense the concession is irrelevant so whether or not the state has made it.

Chief Justice Warren E. Burger: Then why does it not help your case any that the mother is present at the birth of necessity?

Mr. Morton E. Friedman: Because in that case --

Chief Justice Warren E. Burger: You can emphasize that.

Mr. Morton E. Friedman: Because in the case of the case of the married couple, the father will generally participate not in the act of birth but from that time on in caring with the child.

Chief Justice Warren E. Burger: Well, this man is trying to participate, but Illinois will not let him?

Mr. Morton E. Friedman: No Mr. Chief Justice.

Most respectfully Illinois encourages him to do so if he will accept the legal responsibility for those children by a formal proceeding comparable to the marriage ceremony in which he is evidencing through a judicial proceeding his desire to accept legal responsibility for the children.

Chief Justice Warren E. Burger: You mean --

Justice William J. Brennan: Yes, but did he do all things that you say that a married father would do from the birth of these children until the time that Joan Stanley died?

I gather from this record that that is the fact.

He did not get into this difficulty until after her death, but he did everything apparently that that he had been married to Joan.

Mr. Morton E. Friedman: No sir.

I would not agree to that and the suggestions on the record that would tend to indicate that were not relevant to the Trial Court below.

Justice Byron R. White: Well, you say that the state should consider him as the children -- apparently the interest in the children were irrelevant in this proceeding in the sense that they taken from what is conceived to be the father and given to some guardian?

Mr. Morton E. Friedman: No sir, they were not --

Justice Byron R. White: Well, they were declared dependent and guardians were appointed for them?

Mr. Morton E. Friedman: That is correct, but it is the petitioner Stanley who placed the children with the Nesses.

Justice Byron R. White: I understand that, the state --

Mr. Morton E. Friedman: The Nesses, whether that was done --

Justice Byron R. White: And the state, as the result of this proceeding automatically without considering the interest of the children specifically in this proceeding legally forbade his custody in the immediate future?

Mr. Morton E. Friedman: No sir.

The state imposed upon the Nesses, the parties he had physically deposited the children with upon some person the state imposed legal responsibility.

Stanley did not ask for custody, he did not ask for legal responsibility.

He only objected to someone having legal control over the children.

The question of his prior relationship, the question of his paternity or lack of it or his misconduct or lack of it was not part of the trial below and is not relevant to outcome of this case.

It is purely the question of the act of discrimination.

In requesting the Nesses to accept that legal responsibility, the custodians he had given the children to, the state was merely attempting to secure the welfare of the children by providing a criminal penalty for anyone who would abandon a child.

Stanley was -- did not ask to have them.

Chief Justice Warren E. Burger: Let me call your attention to one, two comments from the Supreme Court of Illinois opinion which I am not too clear about.

In referring here at the end of the opinion at page 33 to the equal protection arguments, the Court concludes by saying that if that is his claim, we need only respond in this instance by noting that the Section was not so applied to him and here is the key part, in fact the Trial Court’s comments clearly indicate that court's willingness to consider a future request by the father, the Court apparently then conceded that he was the father, as custodian or guardian.

Now I notice it does not say or there is no reference to an adoption proceeding.

Is there any –- do you see any significance in their having omitted reference to adoption or was that just inadvertent?

Mr. Morton E. Friedman: I would submit that to be a mere inadvertence sir.

The adoption is clearly open as an alternative to Stanley in this case.

Justice Harry A. Blackmun: Mr. Friedman do you know, do other States have situations similar to this one here, statutes like this?

Mr. Morton E. Friedman: Yes sir, Mr. Justice Blackmun.

There is no state which imposes upon the unwed father the full range of parental responsibility and there is no state which grants the unwed father outside of a common law marriage state the full range of legal rights of parenthood.

Chief Justice Warren E. Burger: Thank you, Mr. Friedman.

Mr. Murphy you have a few minutes left here, would you care to comment some time on this language at page 33 of the Supreme Court, Illinois Supreme Court’s opinion as to what the Court had in mind?

Rebuttal of Patrick T. Murphy

Mr. Patrick T. Murphy: I would find difficulty, Your Honor.

The Court there did suggest the right of custody but in later case they again agreed that unwed fathers had no right to custody.

Chief Justice Warren E. Burger: But we are only concerned with what --

Mr. Patrick T. Murphy: The adopt --

Chief Justice Warren E. Burger: -- is said in this case.

Mr. Patrick T. Murphy: I would assume that the Illinois Supreme Court realized that he may have had the theoretical possibility to adopt the children as he did at that time.

Justice Potter Stewart: So the question of that -- at least now that the law has been clarified in Illinois, it is clear, is it not, that he is an eligible applicant.

He therefore asked for custody of the children or as an adopted parent?

Mr. Patrick T. Murphy: I think the law is clear that he has a theoretical possibility to adopt.

I believe the law is unclear as to whether he has a right to custody.

You see Vandollin came down after Stanley at least and Vandollin said no right of custody.

Chief Justice Warren E. Burger: We should not -- is there not some possibility that your client ought to be exhausting his state remedies before he asks this Court to get into this difficult --?

Mr. Patrick T. Murphy: We did exhaust our state remedy.

Chief Justice Warren E. Burger: Beg your pardon?

Mr. Patrick T. Murphy: We did exhaust our state remedy.

Chief Justice Warren E. Burger: Including adoption?

Mr. Patrick T. Murphy: (Inaudible)

Justice Potter Stewart: It is not a constitutional claim at all, is it?

Your claim is that the state by making just the equivalent of John Joan denies him equal protection law?

Mr. Patrick T. Murphy: Yes, Mr. Justice.

Justice Potter Stewart: He just be the child's mother?

Mr. Patrick T. Murphy: Yes that is correct, their claim is that --

Chief Justice Warren E. Burger: Let us stay on my question if you will and address your self to that point.

Mr. Patrick T. Murphy: Fine.

First of course, there is the point that why put the burden on him to go the adoption when we do not do it to anyone else and that is our claim and that is the claim the Illinois Supreme Court answered negatively to us.

Secondly, once there is a finding of wardship we have to appeal within 30 days which we did. Stanley at that time obviously from his placement with his children with the Nesses a practical matter could not adopt.

In fact, if he could have adopted and were not indigent, we would not be before this Court today as a practical matter.

I would like to address very briefly a point that the state raised and that is that he could have married Joan Stanley while she was living and if we assume this we are assuming that all women are weak frivolous creatures that any man has to say please marry me and she will.

There is no evidence there was not Joan Stanley would not marry Peter Stanley and we can assume that in many cases it is the woman who will not marry the man and not the man who refuses to marry the woman.

So what happens in the case of a man who lives for 18 years with the woman who has two children by him and she refuses to marry him and then she dies.

Justice Potter Stewart: It would have been apparently eligible suitor in history, would he not?[Laughter]

Mr. Patrick T. Murphy: They term a bachelor.

I do not know, but they tell me, the longer you lived with person, might be less eligible.

Justice Harry A. Blackmun: Mr. Murphy what could she possibly gain by not marrying him under the circumstances?

Mr. Patrick T. Murphy: Your Honor, as I say I do not -- why what makes a woman do what she does is beyond my comprehension very well.

And I simply do not know why a woman why not marry a man certainly I think just about any woman who want to marry.[Laughter]

Justice Harry A. Blackmun: A little while ago you said that Levine against Vincent was of no consequence here and yet there also the opportunity was afforded the father to have legitimatized these children for inheritance purposes in any event and he failed to do so.

Mr. Patrick T. Murphy: But the --

Justice Harry A. Blackmun: Now I take it it you distinguish this because you say marriage is a two-way street?

Mr. Patrick T. Murphy: Well, the difference is there, so different in here.

There it was merely a father’s interest in gaining the estate of his son.

Here, it is the interest of a father who has built a familial relationship in maintaining that relationship with his children.

It is more than money that is concerned here.

Justice Harry A. Blackmun: Well, the father was not interested in gaining the estate of the son.

He was --

Mr. Patrick T. Murphy: Excuse me, it was the other way around, it was the son.

But again it was matter of money and here it is a matter of familial relationship.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, Mr. Murphy and Mr. Friedman.

The case is submitted.