# Amicus Brief — Palmore v. Sidoti

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0835%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 429

## Text

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 «

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0835%3A06. Public record. Not legal advice.