Amicus Brief — Palmore v. Sidoti

Supreme Court of the United States

OCTOBER TERM, 1983

ANTHONY J. SIDOTI,

LINDA SIDOTI PALMORE, Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, SECOND CIRCUIT

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, THE AMERICAN JEWISH COMMITTEE

AND THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE IN SUPPORT OF PETITIONER

inaniameidaemanmninianel

scaienemeeianiamene

| TRA G, GREENBERG*

_ Burns Summit Rovins

& Feldesman

445 Park Avenue

New York, New York 10036

(212) 980-3200

é SAMUEL RABINOVE

ANDREA S. KLAUSNER

4 The American Jewish Committee

165 E. 56th Street

- New York, New York 10022

(212) 751-4000

BURT NEUBORNE

WILLIAM D. ZABEL

MARCIA ROBINSON LOWRY

SUSAN KAYSER

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

TABLE OF CONTENTS

Interest of NN ooo oc he ee oo ec eccul

Statement of the RO hhc ab bh bceeeceeecaue

Ue OO BENE 4 chs kee cccscbccdvvedesacd

nat mart ee a vee en eee

I. A COURT MAY NOT ALTER AN

EXISTING CUSTODIAL DECREE

BECAUSE THE CUSTODIAL PARENT

ENTERS INTO AN INTERRACIAL

PI 6 66 bch dence cocicccectl

A.

The Civil War Amendments

To The Constitution Absolutely

Forbid Race From Playing A Role

In Our Legal System, With The

Exception Of Remedial Action

Deemed Necessary To Correct

The Results Of Past Racial

og a ee

If Race Is To Play An

Operative Role In Our Legal

System, The Justification

For Its Use Must Be Demonstrated

By A Showing Of Factual

Necessity, Which Has Not Even

Been Attempted In This Case..........14

The Only Justification Offered

By The Court Below For Using

Race As A Criterion To Determine

Custody Is Fear Of The Activities

Of Bigots, Which May Never Found

The Basis For Judicial Action........22

D. Depriving A Mother of The

Custody Of Her Child Because

She Enters Into An Interracial

Marriage Impermissibly Burdens

The Fundamental Right to Marriage....25

II. THE POWER TO ALTER A

PRE-EXISTING CUSTODIAL DECREE

BECAUSE A JUDGE DEEMS IT IN

THE CHILD'S "BEST INTEREST” VESTS

OVERBROAD DISCRETION IN THE COURT......29

CN gs kg ke ee 6 oh ke bo 066 ec eusee

TABLE OF CASES

Adickes v. S.H. Kress & Co.,

398 ume 144 [ES Op eee cedndeanecccccecckhl, 24

Almeida-Sanchez v. United States,

413 U.S 266 OB Np ee Oe RR a ee ee |

Alsager v. District Court of Polk County,

406 F.Supp. 10 (S.D. Iowa 1975) aff'd on

other grounds 545 F.2d 1136 (8th Cir.

oe | eS eo eo

Anderson v. Martin, 375 U.S. 399 (1964)....11

Barrows v. Jackson, 346 U.S. 249

Oo en ee ee ee 24

Bell v. Maryland, 378 U.S. 226 (1964)......25

Bellotti v. Baird, 443 U.S. 622 (1979).....34

Boddie v. Connecticut, 401 U.S. 371

Fe 8 ee ee ee

Brown v. Board of Education, 347 U.S. 483

eS a eee a ee , &

Cleveland Board of Education v.

LaFleur, 414 Ue 632 Bk @ fy Re ee

Colautti v. Franklin, 439 U.S. 379

fo ke | ee ae ee

Comm'n. ex. rel. Lucas v. Kreischner, 450 Pa.

352, 200 A.2d 243 BG g by ROR ray a |

Commonwealth v. Board of Directors of

City Trusts, 353 0.8. 230 £0 see |

Connolly v. General Construction Co.,

269 U.S. 385 BF RP ene nares, |

iii.

Cooper v. Aaron, 358 U.S. 1 (1958).....11, 23

Davis v. Mississippi, 394 U.S. 721 (1969)..11

Davis v. Smith, 583 S.W.2d 37

(Ark. SOTO) cnn cack neecewsccesesscecdasestene

Doe and Roe v. Delaware, prob. jur. noted,

445 U.S. 942 (1980), app. dism. for want

of a properly presented federal question,

ES0 0.8. BOD TAGE) cic nccocdscccacsscecescese

Edel v. Edel, 97 Mich.App. 266,

293 N.W.2d 792 Ce

Ex parte Endo, 323 U.S. 283 (1948) . ccccucesaa

Ex parte Siebold, 100 U.S. 371 (1879)......10

Ex parte Virginia, 100 U.S. 339 (1880) . 2220

Ex parte Yarborough, 110 U.S. 651 (1884)...10

Fullilove v. Klutznick,

448 U.S. 448 PEORO) kc cetevenceeseecseaas 20

Gomillion v. Lightfoot, 364 U.S. 339

Oe a ee ea air ee es

Grayned v. City of Rockford,

408 U8. 104 ko ye 4 ae ee ee ete 2

Guinn v. United States, 238 U.S. 346

PAO) i cndc tesco i cesceecceeeecesenceneaveae

Hirabayashi v. United States, 320 U.S. 81

ee ee rer eee

Hunter v. Erickson, 393 U.S. 385 (1969)....11

iv.

Hynes v. Mayor of Oradell, 425 U.S. 610

Co EE eS In eam RNS A

In re Five Minor Children,

407 A.2d 198 (Del. Be be oka on bh de cea cane

Johnson v. J.0.L., cert. granted

449 U.S. 818 (1980), judgment vacated

and remanded, 449 U.S. 989 (1980)..........35

Johnson v. Virginia, 363 U.S. 61 (1963)....11

Kirkpatrick v. Christian Homes

of Abilene, cert. granted

459 U.S. (1983), vacated and

remanded 460 U.S. Cae e bh bbiwewvescescuae

Korematsu v. United States, 323 U.S. 214

eg EOP BONES a Oe ee 14, 15,

Korematsu v. United States, 27635 - WMHP

(N.D. Cal. 8 ts ce eA 3 16

Kramer v. Kramer, 297 N.W.2d 359

(Iowa Co ee es a |

Lane v. Wilson, 307 U.S. 268 Bo ee a

Lanzetta v. New Jersey, 306 U.S. 451

LE) I en ee |

Lee v. Washington, 390 U.S. 333 (1968).....11l

Linn v. Linn, 286 N.W.2d 765 (Neb. 1980)...35

Lombard v. Louisiana, 373 U.S. 267 (1963)..25

Loving v. Virginia, 388 U.S. 1

Cn fg ee ee Gc een, | | 26

McLaughlin v. Florida, 379 U.S. 184

ead ee a Oe 26

Vv.

Myers v. Myers, 468 Pa. 134, 360 A.2d 587

Se P66 ek bbe ob 60 ned kee ek eebeekseeneecenl

New York Times Co. v. United States,

403 U.S. 713 bg 8b ee Esa maym el

Niles v. Niles, 299 So.2d 162 (1974)....3, 22

Nixon v. Herndon, 273 U.S. 536 (1927)......10

Pace v. Alabama, 106 U.S. 583 (1883).......26

Papachristou v. City of Jacksonville,

405 | 156 Bg eg ee ee |

wernem ¥. D.R. 442 U.S. 564 (1979) -ccccvcecd

Plessy v. Ferguson, 163 U.S. 537 (1896).....9

Potter v. Potter, 372 Mich. 637,

127 N.W.2d 320 EA SOG) bce dd cee cecdnkeseeuncas

Regents of the University of California v.

Bakke, 438 U.S. 265 (1978).....12, 18, 19, 20

Reitman v. Mulkey, 387 U.S. 369 (1967).....11l

Roe v. Conn., 417 F.Supp. 769

(M.D. Ala. Bee 6 ooo ob oe oes ee ce ween 48

Russell v. Russell, 399 N.E.2d 212

eee App.Ct. BPE) cu hbeceuébbebebbewenen cucu

Santosky v. Kramer, 455 U.S. 745 (1982)....34

Shelley v. Kraemer, 334 U.S. 1

BE a ee ee ca ee ee. 24

Skinner v. Oklahoma ex. rel. Williamson,

316 iee 535 LS le g UR ne Oe ORR

vi.

Smith v. Goguen, 415 U.S. 566 (1974).......30

Smith v. Organization of Foster Families,

431 ie 815 C1977) coccccveccececsecoecceseess

Strauder v. West Virginia, 100 U.S. 303

bo a

Thompson v. City of Louisville,

362 U8 199 LU9GO) cvccesescecvesessenseceeese

Tinker v. Des Moines Independent School

District, 393 U.S. 503 (1969) cccccccccceseesu

United Jewish Organizations v. Carey, 430

om Ee 144 CL yg) ee ee ee |

United States v. Brignoni-Ponce,

422 Vebe 873 fly.) ee eee |

United States v. Ortiz, 422 U.S. 891

Ey a | ES eh ee eo ee

United Steelworkers v. Weber, 443 U.S. 193

ETE 5 bk a bok Hob bo 6s Obs 000 66008 608 646 6a cea

Watson v. Memphis, 373 U.S. 526

ho: ae ee ere Se 24

Yick Wo v. Hopkins, 118 U.S. 356 (1886)....10

Youngstown Sheet & Tube Co. v. Sawyer,

343 ows 579 G1OS2Z) cccceecececeeseeeseceeenae

Vile

Interest of Amici*

The American Civil Liberties Union is a

non-partisan organization of over 250,000

persons dedicated to the enforcement of our

constitutional liberties. The American Jew-

ish Committee is a national organization of

approximately 50,000 members which was found-

ed in 1906 for the purpose of protecting the

civil and religious rights of Jews. It be-

lieves this goal can best be accomplished by

helping to eliminate all forms of racial dis-

crimination and to promote the constitutional

and civil rights of all Americans. The

National Association for the Advancement of

Colored People (NAACP) is the nation's larg-

est black civil rights organization. The

NAACP is dedicated to the realization of full

racial equality and the elimination of racial

* Letters of consent to the filing of this

brief have been obtained from the parties and

have been lodged with the Clerk of the Court.

eje

stereotypes which limit the ability of each

person to fully actualize his/her human po-

tential and contribution to society.

Much of the struggle for constitutional

rights during the past 100 years has centered

on the repeated attempts by this Court to

eliminate racism as a factor in American

law. This case, involving as it does an ex-

plicit decision to deprive a mother of the

custody of her child merely because she re-

married a man of another race, is as flagrant

an example of state-enforced racism as has

reached this Court in recent years. Accord-

ingly, amici submit this brief in the hope

that the Court will find it of assistance in

dealing with the persistence of a mode of

legal analysis which many had hoped irrevo-

cably baniShed from our legal system.

Statement of the Case

On May 20, 1980, petitioner, Linda Sidoti

Palmore, a white woman, was awarded custody

of her three year old daughter, Melanie, pur-

Suant to a Florida divorce decree which found

her a "fit and proper person to have such

custody." Approximately one year later,

Melanie's father, who had since re-married,

sought - persuade the Florida courts to

award him custody by alleging that petitioner

was living with a "black male", whom she mar-

ried shortly thereafter. The Florida court

directed that an investigation be carried out

by John C. Knight, Jr., a court counsellor.

Mr. Knight, who had in a previous case al-

ready recommended that a mother be deprived

of custody because she had re-married outside

her race,1/ predictably found:

l/ Mr. Knight was the investigating officer

in Niles v. Niles, 299 So.2d 162 (1974), in

3

The wife has chosen for herself

and for her child, a life-style

unacceptable to the father and to

society.

No parent has the right to commit

a child to the uncertainty of ad-

versity beyond the limit of reason-

able, calculable risks.

There is no question of parent

love for child, nor child's love

for parent. The child, however,

is, or at school will. be, subject

to environmental pressures not of

choice.

It is recommended ‘custody of the

child be awarded to the father.

Echoing the sentiments of Mr. Knight, a

circuit judge for Hillsborough County,

Florida, vacated the decree awarding custody

to petitioner and, instead, awarded custody

to Melanie's father, because in his opinion:

- « « despite the strides that have

been made in bettering relations

between the races in this country,

it is inevitable that Melanie will,

if allowed to remain in her present

situation and attains school age

which the Florida District Court of Appeal

upheld a change of custody based in large

part on an inter-racial remarriage.

-~ 4-

and thus more vulnerable to peer

pressure, suffer from the social

Stigmatization that is sure _ to

come.

The Second District Court of Appeal affirmed

without opinion, precluding appeal to the

Florida Supreme Court.

The only Changed circumstance which led,

the Florida court to aay teak from her

mother's custody was petitioner's re-marriage

to a black man. This appeal raises the ques-

tion of whether race may play such a dominant

role in a judge's decision to alter an exist-

ing custodial decree.

Summary of Argument

1. When a court modifies an existing cus-

todial decree because a white custodial par-

ent has married a black man, it utilizes race

as the criterion for judicial decision--

making. Such race-dominated adjudication

violates an absolute ban on the use of race

as a factor in our law, except in remedial

contexts.

2. If race is to play any role in our law

at all, it must be justified by a, factual

showing demonstrating the necessity for its

use. No such showing was even attempted in

this case.

3. The only justification offered by the

court below for removing custody based on an

interracial re-marriage was fear of the reac-

tion of bigots in the community. Such sur-

render to the social blackmail of bigots is

constitutionally forbidden.

4 A decision to remove custody as the

result of an interracial remarriage impermis-

sibly burdens the constitutional right to

marry.

5S. The use of a “best interest" standard

to overturn an existing custodial. decree vio-

lates the void-for-vagueness doctrine because

it vests uncontrolled discretion in a judge

- 6 -

to interfere with constitutionally protected

relationships.

Argument

I. A COURT MAY NOT ALTER AN

EXISTING CUSTODIAL DECREE

BECAUSE THE CUSTODIAL PARENT

ENTERS INTO AN INTERRACIAL

MARRIAGE.

\

When, as here, a court modifies an exist-

ing custodial decree because the custodial

parent has married outside her or his race,

it utilizes race as an operative -- indeed,

the controlling -- element in reaching its

decision. Such a race-dominated approach to

adjudication is unconstitutional on three

levels: First, it is contrary to repeated

attempts by this Court to prevent race from

playing a role in our legal system, except in

remedial settings; second, it overlooks the

Clear teaching of this Court that if race is

to play a role in our law, it must be pursu-

ant to a showing of factual necessity; and

third, it constitutes a wholly unnecessary

Surrender. to a form of social blackmail im-

posed by persons in the community who refuse

to accept interracial marriage as acceptable

behavior.

A. The Civil War Amendments To The

Constitution Absolutely Forbid Race

from Playing A Role In Our Legal

System, With The Exception Of Reme-

dial Action Deemed Necessary To

Correct The Results Of Past Racial

Discrimination.

This nation fought a bloody Civil War to

free itself from slavery and the legal mani-

festations of racism. As the first Justice

Harlan noted in his prophetic dissent in

Plessy v. Ferguson, 163 U.S. 537, 555 (1896),

the effect of the 13th, 14th and 15th Amend-

ments was to render the Constitution "color-

blind." Had we heeded Justice Harlan's lone

voice in Plessy, we would have been spared

the anguish of a half-century of racial op-

pression and would not now be confronted with

the question of the extent to which a color-

blind Constitution permits, and even re-

quires, race conscious remedial action de-

signed to eliminate the fruits of past

- 9 -

racism. However, with the exception of such

race-conscious remedial action -- voluntary

Or otherwise -- Justice Harlan's vision, of a

legal system in which race plays absolutely

no role is the law of the land. Beginning

with Strauder v. West Virginia, 100 U.S. 303

(1880), and Ex parte Virginia, 100 U.S. 339

(1880), this Court Has repeatedly sought to

exclude race as an element in adjudicating

the rights of parties to litigation.2/ The

2/ Race-conscious jury selection was

invalidated in Strauder and Ex parte

Virginia; race-conscious administration of

‘local law was invalidated in Yick Wo v.

Hopkins, 118 U.S. 356 (1886); race-conscious

Satta tion of voter qualifications was

invalidated in Ex parte Siebold, 100 U.S. 371

(1879); Ex parte Yarborough, 110 U.S. 651

(1884); Guinn v. United States, 238 U.S. 346

(1915); Nixon v. Herndon, 273 U.S. 536

(1927); and Lane v. Wilson, 307 U.S. 268

(1939); race-conscious definition of

electoral districts was invalidated in

Gomillion v. Lightfoot, 364 U.S. 339 (1960);

the enforcement of race-conscious restrictive

covenants was invalidated in Shelley v.

Kraemer, 334 U.S. 1 (1948) and Barrows v.

Jackson, 346 U.S. 249 (1953); the first

Justice Harlan's vision was fulfilled when

» 16 «

clear teaching of this Court is that absent a

showing of need for remedial action,2/ our

race-conscious public school enrollment was

invalidated in Brown v. Board of Education,

347 U.S. 483 (1954), and Cooper v. Aaron, 358

U-8. Ll (19586); renee access to

public parks and recreational facilities was

invalidated in Watson v. Memphis, 373 U.S.

526 (1963); race-conscious seating in

courtrooms was invalidated in Johnson vy.

Virginia, 373 U.S. 61 (1963); race-conscious

identification of candidates for political

office invalidated in Anderson-v. Martdn,

375 u. 399 (1964); race-conscious

limitations on the ability to marry were

invalidated in McLaughlin v. Florida, 379

U.S. 184 (1964) and Loving v. Virginia, 388

U.S. (1967); race-conscious assignment of

prisoners was invalidated in Lee vy.

Washington,. 390 U.S. 333 (1968); race-

conscious tampering with tthe political

process to block open-housing legislation was

invalidated in Reitman v. Mulkey, 387 U.S.

369 (1967) and Hunter v. Erickson, 393 U.S.

385 (1969); race-conscious enforcement of

State trespass laws was invalidated in

Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970); and race-conscious searches and

seizures were invalidated in Almeida-Sanchez

v. United States, 413 U.S. 266 (1973); United

States v. Ortiz, 422 U.S. 891 (1975) and

United States v. Brignoni-Ponce, 422 U.S. 873

(1975). See also Davis v. Mississippi, 394

U.S. 721 (1969).

3/ The use of race-conscious remedies for

past discrimination is discussed in United

Jewish Organizations v. Carey, 430 U.S. 144

= i) «

legal system may not use race as a factor in

enacting legislation, in administering exist-

ing legislation, or in adjudicating dis-

putes. Yet by depriving Mrs. Palmore of cus-

tody of her daughter solely because she re-

married a black rather than a white man, the

Florida court made race not merely an opera-

tive fact, but the sole determinant for its

decision. Such race-dominated adjudication

cannot be squared with Justice Harlan's vi-

sion of a color-blind Constitution. Just as

race cannot form the basis for jury selec-

tion, voting, re-apportionment, public school

enrollment, access to public facilities, mar-

riage, contract law or search and seizure, it

cannot be used by a court to alter the cus-

tody of a child.

One case stands alone in stark contrast to

(1977); Regents of the State of California v.

Bakke, 438 U.S. 265 (1978); United

Steelworkers v. Weber, 443 U.S. 193 (19795);

and Fullilove v. Klutznick, 448 U.S. 448 (1980).

--12 «

Justice Harlan's vision of a color blind le-

gal system -- this Court's unfortunate deci-

sion in Korematsu v. United States, 323 U.S.

214 (1944) .4/ In Korematsu, this Court up-

held, over the dissents of Justices Roberts,

Murphy and Jackson, the relocation of Japa-

nese Americans living in the Western United

States to internment camps durins the Second

World War.2/ The continued existence of

Korematsu as a precedent encourages judgés,

like the judge below, to believe that race

may play a role in their courtrooms. The

predictable result of the interaction between

Korematsu and local prejudice is the emer-

4/ See also, Hirabayashi v. United States,

320 U.S. 81 (1943); Ex parte Endo, 323 U.S.

283 (1944).

3/ The United States has consented to a coram

nobis petition designed to vacate the

Korematsu conviction, without, however,

conceding the underlying invalidity of the

law. Koramatsu v. United States, 27635 -

WMHP (N.D. Cal. 1983).

= 13 <

gence of race as an element in custody pro-

ceedings in fldgrant violation of the Civil

War Amendments. Amici urge the Court to uti-

lize this opportunity to repudiate Korematsu

and to make explicit the principle which has

animated the jurisprudence of this Court in

the modern era: that, apart from necessary

remedial programs, race may not, under any

circumstances, .be a factor in our legal sys-

tem.

B. If Race Is To Play An Operative

Role In Our Legal System, The Jus-

tification For Its Use Must Be Dem-

onstrated By A Showing Of Factual

Necessity, Which Has Not Even Been

Attempted In This Case.

Amici have urged the Court to repudiate

the suggestion in Korematsu that race, under

extraordinary circumstances, may play a role

in our legal system, other than in a remedial

sphere. Even under Korematsu, however, Flo-

rida's use of race to determine custody can-

—)

not withstand constitutional scrutiny. Jus-

tice Black, in his opinion for the Court in

Korematsu, recognized the danger of permit-

ting race to play even a limited role in our

legal system:

» « « all legal restrictions which

curtail the civil rights of a sin-

gle racial group are immediately

Suspect. That is not to say that

all such restrictions are unconsti-

tutional. It is to say that courts

must subject them to the most rigid

scrutiny. Pressing public neces-

sity may sometimes justify the ex-

istence of such restrictions; ra-

cial antagonism never can. 323

U.S. at 216.

Thus, even under Korematsu, the use of race

as a factor in deciding custody must be sub-

jected "to the most rigid scrutiny" to deter-

mine wheteher there is a factual necessity

which justifies race-conscious adjudication.

In Korematsu, the claim by military autho-

rities of a threat to national security dur-

ing wartime was deemed by a majority to pro-

vide a sufficient factual predicate for the

internment program. Whatever credence one

gives to the Korematsu assessment ,0/ if be-

lieved, it purported to provide a dramatic

factual justification for a race-conscious

internment program. No such factual predi-

cate has been offered to justify Florida's

adoption of a race-conscious custody pro-

gram. Instead of factual support, the deci-

sion below rests solely on the "“undifferen-

tiated apprehension" that children living in

a multi-racial home may suffer future harm at

the hands of bigots in the community. Not a

Single fact was considered which might, even

arguably, justify the use of race as the dom-

inant factor in the award of custody. No

attempt was made to survey the professional

literature. No attempt was made to seek the

§/ Serious allegations have been made that

conscious mis-statements of fact were made to

this Court in an effort to support the

internment decision. Korematsu v. United

States, 27635 - WMHP (N.D. Cal. 1983).

- 16 -

testimony of child psychiatrists, child psy-

chologists or trained social workers. No

attempt was made to develop a factual record

on the impact of interracial marriage on

children in general, or on Melanie, in par-

ticular. Instead of seeking facts, the court

below simply assumed an ugly, stereotypical

set of eventualities involving the possible

persecution of Melanie by bigots because her

stepfather was black. It is, amici believe,

a welcome benchmark in our struggle against

racism that such an ugly stereotype of re-

ality may not be assumed. If it may be con-

sidered at all, it must be proved. Cf.

Cleveland Board of Education v. LaFleur, 414

U.S. 632 (1974)

Even more significantly, no attempt was

made to deal with the facts pertinent to

Melanie herself. The court below simply ig-

nored the fact that petitioner had been deem-

ed the appropriate parent to raise Melanie

o- }7 «

scarcely a year earlier and that she had pro-

vided her with a loving home. Similarly, the

court did not consider the effect on Melanie

of removing her from her mother, who had

served as custodial parent from birth, and

placing her in a new home. The actual harm

to a child caused by uprooting her from the

Only home she has ever known far exceeded the

speculative danger that she might someday be

taunted by a bigot because her stepfather is

black. In short, whether viewed as a general

matter or in the particular, no facts what-

ever were adduced to support a finding that

Melanie's custody should turn on the race of

her step-father. Cf. Thompson v. City of

Louisville, 362 U.S. 199 (1960).

In Regents of the University of California

v. Bakke, 438 U.S. 265 (1978), five members

of the Court considered the extent to which

the Constitution permits race to be used in a

plan designed to remedy the historic absence

- 18 «

of minority medical students at the Univer-

sity of California. Four members of the

Court (Justices Brennan, White, Marshall and

Blackmun) approved the use of race in a reme-

dial context because, borrowing the standard

of review used in gender discrimination

cases, the California plan served important

governmental objectives and was substantially

related to the achievement of those objec-

tives. Justice Powell, in a separate opin-

ion, subjected the California plan to more

stringent scrutiny pursuant to which the use

of race must be shown to advance a compelling

State interest by the least drastic means.

Since, reasoned Justice Powell, the interest

in achieving a diverse student body could

have been attained by a less drastic plan,

the California plan was invalid. However,

whatever the disagreement between Justice

Brennan and Justice Powell in Bakke concern-

ing the appropriate standard of review, they

- 10 =

agreed that the use of race, even in a reme-

dial context, must be justified by a rigorous

factual showing. See also Fullilove v.

Klutznick, 448 U.S. 448 (1980). In this

case, where race is being used to stigmatize

and burden, Florida has not attempted the

level of factual justification demanded by

Bakke for race-conscious remedial plans.

Instead of facts, the Florida court substi-

tuted the untutored subjective assumptions of

local officials. This Court has never per-

mitted such “undifferentiated apprehension”

of future harm to justify government activity

in derogation of significant constitutional

values. E.g. New York Times Co. v. United

States, 403 U.S. 713 (1971); Tinker v. Des

Moines Independent School District, 393 U.S.

503 (1969). Cf. Parham v. J.R., 442 U.S. 584

(1979). Thus, even if one assumes that Flo-

rida was not absolutely barred from using

race to decide custody, its decision to uti-

- 20 -

lize such a disfavored criterion must be

based on an overwhelming factual justifica-

tion -- and not, as here, on mere subjective

speculation.

The Supreme Courts of both Pennsylvania

and Michigan have ruled that the race of a

custodial parent's spouse may not be a factor

in deciding whether to modify a pre-existing

custodial decre. Myers v. Myers, 468 Pa.

134, 360 A.2d 587 (1976); Comm'n. ex. rel.

Lucas v. Kreischner, 450 Pa. 352, 200 A.2d

243 (1973); Potter v. Potter, 372 Mich. 637,

127 N.W.2d 320 (1964); Edel v. Edel, 97

Mich.App. 266, 293 N.W.2d 792 (1980). See

also Kramer v. Kramer, 297 N.W.2d 359 (Iowa

1980). In holding that race cannot be a

factor in judicial decision-making, the

courts of Pennsylvania and Michigan correctly

perceived that both as a matter of law and as

a matter of fact, the race of a step-parent

is constitutionally irrelevant.

~~ oo

Several courts appear to permit race to be

used as a factor, but not the factor, in cus-

tody determinations. Russell v. Russell, 399

N.B.2@ 212 (Ill. App. Ct. 1979); Niles v.

Niles, 299 So.2d 162 (1974). Since the court

below viewed race as the determinative factor

in its decision to alter custody, it went

far beyond any existing authority.

Moreover, those courts which seek to permit

race to play a limited role in custody cases

seek to draw a logically unsupportable

line. If, standing alone, non-racial factors

would not justify a change in custody, using

race as the factor that tips the scales

necessarily assigns it a determinative

role. If, on the other hand, non-racial

factors would justify a change of custody, no

basis exists to inject race into the process

at all.

C. The Only Justification Offered By

The Court Below For Using Race As A

Criterion To Determine Custody Is

- 22 «

Fear Of the Activities Of Bigots,

Which May Never Found The Basis For

Judicial Action.

Amici have argued that no facts were ad-

duced demonstrating a genuine threat to the

well-being of petitioner's child merely be-

cause she would be raised in an interracial

home. Instead, the Court below speculated

that persons in the community might torment

Melanie when she was of school age and that

such a danger justified a change of custody

to her father's all-white home. Such specu-

lations, wholly unsupported by facts, can

hardly provide a basis for using race as a

factor in granting custody. Moreover, in

addition to the inherent factual weakness of

such speculations, they violate the repeated

admonition of this Court that government may

not allow itself to be pressured into race-

conscious decisions by the reprehensible ac-

tivities of a small minority of bigots.

Thus, in Cooper v. Aaron, 358 U.S. 1 (1958),

~ 29 «

when the Little Rock school board sought to

postpone integration because public hostility

purportedly rendered it impossible to offer a

sound educational program with black students

in attendance, this Court responded in an

extraordinary opinion signed by each of the

nine Justices which refused to hold constitu-

tional values hostage to racial bigotry in

any form. Similarly, in Watson v. Memphis,

373 U.S. 526 (1963), the threat of adverse

reaction by bigots was deemed insufficient to

justify a delay in the desegregation of Mem-

phis' parks. Indeed, in Shelley v. Kraemer,

334 U.S. 1 (1948), and Barrows v. Jackson,

346 U.S. 249 (1953), the Court held that ju-

dicial enforcement of agreements based on

private bigotry constituted state reinforce-

ment of discrimination in violation of the

Fourteenth Amendment. Similarly, in Adickes

v. S.H. Kress & Co., 398 U.S. 144 (1970), the

Court held that state enforcement of a custom

- 24 -

of discrimination was unconstitutional. See

also, Lombard v. Louisiana, 373 U.S. 267

(1963); Bell v. Maryland, 378 U.S. 226

(1964); Commonwealth v. Board of Directors of

City Trusts, 353 U.S. 230 (1957).

In allowing its custody decisions to be

dictated by fear of the future actions of

prejudiced persons in the community, the Flo-

rida courts enabled such persons to prevent

the enjoyment of constitutional rights.

There is little practical difference between

a statute forbidding interracial marriage

enacted at the behest of bigots and a judi-

cial policy, adopted through fear of bigots,

which punishes parents who enter into inter-

racial marriages by depriving them of custody

of their children.

D. Depriving A Mother Of The Custody

Of Her Child Because She Enters

Into An Interracial Marriage Imper-

missibly Burdens The Fundamental

Right to Marriage.

- 25 -

@

In addition to constituting an impermis-

sible use of race as a criterion for deter-

mining custody, the decision to deprive a

divorced mother of custody because of an in-

terracial remarriage is an obvious and dras-

tic burden on the exercise of a fundamental

right. Since Skinner v. Oklahoma ex. rel.

Williamson, 316 U.S. 535 (1942), marriage and

procreation have been recognized as fundamen-

tal constitutional rights. In Loving v. Vir-

ginia, 388 U.S. 1 (1967), this Court invali-

dated a ban on interracial marriage, stating:

Under our Constitution, the free-

dom to marry, or not marry, a per-

son of another race resides with

the individual and cannot be in-

fringed by the State.

366 G.8. at iz.

See also, McLaughlin v. Florida, 379 U.S.

184 (1964) (overruling Pace v. Alabama, 106

U.S. 583 (1883)). Finally, in Boddie v. Con-

necticut, 401 U.S. 371 (1971), this Court

- 96 -

invalidated filing fees in divorce actions by

indigents as an unconstitutional impediment

to remarriage. If a $60 filing fee for di-

vorce impermissibly burdens the right to re-

marry, surely a policy which threatens a mo-

ther with loss of a child for remarrying out-

side her race does so as well.

Of course, the right to remarry is not

absolute in the context of custody. If a

woman chose to marry a homicidal maniac, for

example, a change in custody could not be

said to infringe her constitutional right to

marriage. However, the court below cannot

defend its judgment by arguing that it is

designed not to punish the mother, but to

protect the child. As amici have shown, no

factual basis whatever exists for the assump-

tion that being raised in an interracial home

creates a risk of harm. Thus, even if, as a

matter of theory, the characteristics of the

o 27 «

spouse might be deemed relevant to a custody

decision, the constitutionally protected na-

ture of the right to marry further heightens

the need for a dramatic factual justification

before the remarriage could justify loss of

custody. In the absence of such a fact-based

justification, the policy of considering an

interracial remarriage in determining whether

to alter pre-existing custodial arrangements

cannot be defended as a means of protecting

children. Rather, it is a classic penalty

visited on parents who defy local mores by

Marrying out of their race.

=o. 96 -

II. THE POWER TO ALTER A PRE-EXISTING

CUSTODIAL DECREE BECAUSE A JUDGE

DEEMS a+ 22 THE CHILD'S "BEST

INTEREST" VESTS OVERBROAD DISCRETION

IN THE COURT.

The court below decided to remove Melanie

from her mother's Gustody and to transfer

custody to her father because the court be-

lieved that Melanie's "best interests" would

not be served by being raised in an inter-

racial household. Amici have argued that the

Constitution flatly precludes such race--

dominated adjudication. However, the fault

for such a decision lies as much with Flo-

rida's failure to prescribe objective stan-

dards governing change of custody as with the

lower court's impermissible use of race as an

adjudicatory category. By authorizing judges

to decide what is in the "best interests" of

the child without providing objective deci-

Sional criteria, Florida law invites judges

to make purely subjective custody decisions

which cannot help but reflect their indivi-

é

o 29-«

dual social and political views.

When the state acts to alter or terminate

an existing custodial relationship it in-

trudes upon a jealously protected legal rela-

tionship. Traditional principles of consti-

tutional law require that whenever the state

acts in so sensitive an area, it must follow

carefully defined substantive standards.

E.g. Hynes v. Mayor of Oradell, 425 U.S. 610

(1976); Smith v. Goguen, 415 U.S. 566 (1974);

Colautti v. Franklin, 439 U.S. 379 (1979).

One can hardly imagine a standard more viola-

tive of the void-for-vagueness doctrine than

the wholly conclusory “best interest" stan-

dard applied in this case. Devoid of objec-

tive meaning, the “best interest” standard is

nothing more than a surrender to unbridled

discretion and subjective decision-making.

This Court has recognized that the use of

such a subjective standard in sensitive areas

of constitutional concern violates at least

- 30 -

three significant constitutional policies.

First, such a vague standard fails to pro-

vide notice to the potential target of ad-

verse government action. E.g., Lanzetta v.

New Jersey, 306 U.S. 451 (1939). Were peti-

tioner to have consulted Florida law prior to

her remarriage, she would have found no hint

that raising a child in a loving, interracial

home was not in the child's “best inter-

ests." See also Grayned v. City of Rockford,

408 U.S. 104, 108 (1972).

Second, the “best interest” standard "im-

permissibly delegates basic policy matters to

+ e« »« judges and juries for resolution on an

ad hoc and subjective basis, with attendant

dangers of arbitrary and discriminatory ap-

plications." Grayned v. City of Rockford,

Supra; Papachristou v. City of Jacksonville,

405 U.S. 156, 168-69 (1972); Connolly v. Gen- |

eral Construction Co., 269 U.S. 385 (1926).

The wholly conclusory nature of the “best

» 2) «

interest" standard virtually insures the ar-

bitrary, unequal and discriminatory applica-

tion of the law: arbitrary, in that the

standard is purely subjective; unequal, in

that the application of the standard wil?

necessarily vary from one judge to another;

and discriminatory, in that the standard in-

vites reliance on prejudice and stereotypical

thinking.

Third, the "best interest" standard, by

vesting judges with virtually. uncontrolled

discretion, impermissibly delegates policy-

making authority in an area of constitutional

Significance to the judiciary. Where, as

here, law impinges on fundamental interests

of constitutional significance, classic prin-

ciples of separation of powers require that

policy choices be made by a representative

body -- the legislature. Cf. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952).

- 32 -

While reasonable persons will differ as to

the degree of precision required of statutes

in given contexts,_/ the best interest stan-

dard, unaided by any objective criteria,

fails to satisfy even the most permissive

Standard of legislative specificity. Indeed,

this Court has repeatedly noted the insuper-

able vagueness problem posed by the "best

interest" standard.

In Smith yv. Organization of Foster Fami-

1/ The best interest standard is utilized in

three contexts. In those cases involving

State termination of parental rights, the

need for specificty and precision is at its

greatest. On the other hand, those cases in

which the court sets an initial custodial

arrangement between the natural parents call

for greater flexibility, although not the

wholly unrestrained discretion given by a

best interest standard. The instant case,

involving as it does, an attempt to alter an

existing custodial arrangement at the behest

of a natural parent, presents a stronger case

for specificity than initial custodial

arrangements, but a weaker case than

termination proceedings. Whatever’ the

variations among contexts, however, the "best

interest" standard is too vague for use at

any level.

- 33-

lies, 431 U.S. 816, 835 n.36 (1977) the Court

recognized that “judges .. . may find it

difficult, in utilizing vague standards like

‘the best interest of the child' to avoid

decisions based on subjective values."

In Bellotti v. Baird, 443 U.S. 622, 655-56

(1979), four members of the Court (Justices

Brennan, Marshall, Blackmun and Stevens)

noted that a “best interest standard

-ee provides little real guidance

to the judge . .. (whose) decision

must necessarily reflect personal

and societal values and mores whose

enforcement is fundamentally at

odds with privacy interests.

In Santosky v. Kramer, 455 U.S. 745, 752

(1982), the Court noted that vague standards

give family court judges "unusual discretion

to underweigh probative facts that might fa-

vor the parent. "8/

8/ the Court has granted review in three

recent cases challenging the vagueness

inherent in an unadorned "best interest"

- 34 <-

Since the “best interest" standard vio-

lates all three policies advanced by the

void-for-vagueness doctrine, this Court

should require articulation of more precise

Standards in custody settings by invalidating

Florida's use of an unadorned best interest

Standard. In Doe and Roe v. Delaware, prob.

jur. noted, 445 U.S. 942 (1980), app. dism.

for want of a properly presented federal

question, 450 U.S. 382 (1981), the Delaware

Supreme Court invalidated the best interest

Standard, but affirmed the termination on

alternative state grounds. In Johnson v.

J.O.L., cert. granted 449 U.S. 818 (1980),

judgment vacated and remanded, 449 U.S. 989

(1980), a decision upholding a "best

interest" termination became moot prior to

judgment. Finally, in Kirkpatrick vv.

Christian Homes of Abilene, cert. granted 459

U.S. (1983), vacated and remanded 460

U.S. (1983), a challenge to the best

interest standard was vacated after a

representation that relief was available

under Texas law.

Lower courts have consistently invalidated

the "best interest" standard. E.g. Alsager

v. District Court of Polk County, 406 F.Supp.

10, 17-18 (S.D. Iowa 1975) atta on other

grounds 545 F.2d 1136 (8th Cir. 1976); Roe v.

Conn., 417 F.Supp. 769, 780 (M.D. Ala. 1976);

In re Five Minor Children, 407 A.2d 198, 199

(Del. 1978); Davis v. Smith, 583 S.W.2d 37

(Ark. 1979); Linn v. Linn, 286 N.W.2d 765

(Neb. 1980).

- 35 =

Standard to alter a pre-existing custodial

decree.

Conclusion

For the reasons stated above, the decision

of the court below should be reversed.

Respectfully submitted,

IRA G. GREENBERG

Burns Summit Rovins

& Feldesman

445 Park Avenue

New York, New York 10022

(212) 980-3200

BURT NEUBORNE

WILLIAM D. ZABEL

MARCIA ROBINSON LOWRY

SUSAN KAYSER

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

SAMUEL RABINOVE

ANDREA S. KLAUSNER

The American Jewish

Committee

165 E. 56th Street

New York, New York 10022

(212) 751-4000

- 36 -

December 1983

THOMAS I. ATKINS

General Counsel

MICHAEL H. SUSSMAN

Asst. General Counsel

National Association for

the Advancement of

Colored People

Special Contribution Fund

186 Remsen Street

Brooklyn, New York 11201

(212) 858-0800

Attorneys for Amici

Curiae

~ 37 «