Petition for Writ of Certiorari — Rainey v. Chever

Supreme Court

FILED =

981478 usr 16 1999

No.

In The

Supreme Court of the United States

October Term, 1998

S

ZENOBIA HAMILTON RAINEY,

Petitioner,

vs.

ROBERT LEE CHEVER,

Respondent.

°

On Petition For A Writ Of Certiorari

To The Supreme Court Of Georgia

e

PETITION FOR WRIT OF CERTIORARI

+

KENNETH L. SHIGLEY

Counsel of Record

SHIGLEY Law Fira, L.L.C.

3166 Mathieson Drive, Suite 200

Atlanta, Georgia 30305

(404) 364-1999

Counsel for Petitioner Zenobia Hamilton Rainey

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

op'

QUESTION PRESENTED

1. Whether a biological parent of a child born out of

wedlock is entitled to constitutional protection of a right

to gain financially from the death of the child, where

during the child’s life that parent never took any respon-

sibility with respect to the supervision, education, protec-

tion, or care of the child, and totally failed to grasp the

opportunity to develop a significant familial relationship

with the child?

PARTIES TO THE PROCEEDING

Zenobia Hamilton Rainey

Robert Lee Chever

1

iii

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING ..................

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STATEMENT OF BASIS FOR JURISDICTION.......

CONSTITUTIONAL PROVISIONS AND STATUTES

POW UPEENED OW BOO GAG ccc scccccccccccesceess

STATEMENT OF THE CASE..............0cc0ecee,

a. Record and Decision in the Superior Court.....

b. Appeal to the Supreme Court of Georgia.......

ARGUMENT AND CITATION OF AUTHORITY.

A. A biological parent of a child born out of wed-

lock is not entitled to constitutional protection of

the right to inherit from the estate of that child,

where the biological parent failed to a, a

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father of a child born out of wedlock

to benefit financially from the death of the

child, this Court siege ere that barred

hed eonally te th recovery by a father unless he

the child, even though

an ue awed and a genuine famil-

rela ee ian so bu os

2. This Court has properly found that a biolog-

ical father of a child born out of wedlock has

a constitutionally protected right to as a

familial sdatendtip with a living child .

9

iv

TABLE OF CONTENTS - Continued

Page

3. This Court has found a biological father of a

child born out of wedlock has no constitu-

tionally protected right, even in his potential

relationship with a living child, where he has

not grasped the opportunity to establish a

significant familial relationship, and has

never shouldered any significant respon-

sibility with respect to the supervision, edu-

cation, protection, or care of the child .....

4. There is a significant difference between the

right to cultivate a relationship with a living

child and the right to inherit from a deceased

child, where a biological father failed to cul-

tivate a significant familial relationship or

shoulder any significant responsibility for

the child when the child was alive.........

5. The statute in question does not close any

legitimate “gate of opportunity” for a biolog-

ical father who failed to openly treat a child

OS BED GOO oe es ciiai ec ce cncdlies dvéweeiebe

6. The statute, as applied in this case, does not

discriminate against Respondent just because

he is a man. Rather, it makes a valid distinc-

tion between classes of fathers on the basis of

voluntary conduct and personal respon-

sibility toward a child .....................

This case presents a clean vehicle for the Court to

establish a clear precedent holding that, notwith-

standing the lack of perfectly gender-neutral lan-

guage in a statute, no biological parent of a child

born out of wedlock has a constitutionally

right to reap a financial windfall from the death of a

child with whom he or she had no significant famil-

ial relationship, and for whom he or she shouldered

no responsibility for the child’s supervision, educa-

tion, protection, OF Care ..... 2.6... cece eee ens

11

17

18

18

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TABLE OF CONTENTS - Continued

Page

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TABLE OF AUTHORITIES

Page

Case AUTHORITIES

Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297,

ek Se fd (SPS 10, 11, 13, 14, 17

Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614,

f Be BB fF ee Sr 7, 13, 15, 16, 17

Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d

Fi, BOD. Ge GR Be Ces vik nvkiccdsavewadintenés 15, 17

Miller v. Albright, 523 U.S. 420, 118 S. Ct. 1428, 140

SS & ¢ 3. See see 6, 7, 5, 17

Parham v. Hughes, 441 U.S. 347, 60 L. Ed. 2d 269, 99

ee Fo) eer ro 6, 8, 9, 16, 18

Quilloin v. Walcott, 434 U.S. 246 (1978)

» cséhvanddknadvdrwanebiseuscend 7, 11, 12, 13, 14. 15, 17

Stanley v. Illinois, 405 U.S. 645 (1972)...... 9, 11, 12, 17

United States v. Virginia, 518 U.S. 515, 116 S. Ct.

BEG CHOSE s 0k Ka vccee Kenccess ctevcsnvesdeceseean 6, 18

STATUTES AND Court RuLes

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CONSTITUTION

United States Constitution, Amendment 14, Sec-

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OPINIONS BELOW

The order of the Superior Court of Gwinnett County,

Georgia (Pet. App. A) is unpublished. The Supreme Court

of Georgia affirmed with a written opinion (Pet. App. B)

and denied a motion for reconsideration (Pet. App. C).

The decision of the Supreme Court of Georgia is reported

at___ Ga. __,__ S.E.2d __, 1999 Ga. LEXIS 58 (1999).

o

STATEMENT OF BASIS FOR JURISDICTION

The judgment sought to be reviewed was entered

January 19, 1999, and the motion for reconsideration was

denied February 19, 1999.

This court has jurisdiction pursuant to 28 U.S.C.

§ 1257, in that this case involves a final judgment ren-

dered by the highest court of the State of Georgia, and

involves a question of whether a statute of the State of

Georgia is repugnant to the Constitution of the United

States.

The Supreme Court of Georgia, a state court of last

resort, has in this case decided a question of federal

constitutional law of broad public importance in a way

that conflicts with prior relevant decisions of this Court,

and that addresses an issue which has not been, but

should be, settled by this Court.

The Attorney General of Georgia filed a brief in the

Supreme Court of Georgia, supporting the Petitioner's

position regarding constitutionality of the statute in ques-

tion. Pursuant to Rule 29(4)(c), notice is hereby given that

constitutionality of a statute of the State of Georgia affect-

ing the public interest is in question, so that 28 U.S.C.

§ 2403(b) may apply.

¢

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE

Linited States Constitution, Amendment 14, Section 1:

“All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

Official Code of Georgia § 53-2-20 (formerly § 53-4-30):

“Paragraph (1) of this subsection notwithstand-

ing, neither the father nor any paternal kin shall

inherit from or through a child born out of

wedlock if it shall be established, by a prepon-

derance of evidence, that the father, during his

lifetime and after the birth of the child, failed or

refused to openly treat the child as his own or failed

or refused to provide support for the child.”

S

STATEMENT OF THE CASE

This case arises from the death of DeAndre Bernard

Hamilton (hereinafter “child”), who at age twenty was a

student at the State University of West Georgia and a

member of the college cheerleading squad. In August

1997, a college van crashed due to a manufacturing defect

in a tire. He and two other cheerleaders were killed, and

nine others were seriously injured.

Petitioner is the mother of the child, having borne

him out of wedlock as an adolescent in rural Georgia in

1977. However, she went on to finish college and become

a social worker. Respondent is the biological father of the

child, but for twenty years he failed or refused to openly

treat the child as his own son.

a. Record and Decision in the Superior Court.

Petitioner filed in the Superior Court of Gwinnett

County, Georgia, a Petition to Determine ‘Rights of Heirs

pursuant to O.C.G.A. § 53-2-20 (formerly § 53-4-30) con-

tending that Respondent “failed or refused to openly

treat the child as his own” and therefore should be barred

from inheriting.

The Superior Court's ruling is limited to consider-

ation of whether the subject statute on its face violates

equal protection.

However, it is undisputed that the Respondent never

took any responsibility for supervision, education, pro-

tection, or care of the child. Deposition and affidavit

evidence filed in Superior Court with a motion for sum-

mary judgment unequivocally supports Petitioner's con-

tention that Respondent failed or refused to openly treat

the child as his own. Respondent never initiated any

contact with the child. Although Respondent lived within

a mile from the child for about eighteen years and was in

no way barred from developing a relationship with the

child, he had no contact or communication with the child

from the day of the child’s birth until the child was about

fifteen years old. At that time the child, along with other

teenagers sired by Respondent, went to Respondent's

house and confronted him with the fact of their paternity.

Respondent had only six to eight very brief, sporadic

contacts with the child, all initiated by the child as a

teenager living in the same neighborhood. Respondent

never legitimated the child, never visited the child after

the day of his birth, and did not give the child his name.

He was unaware of the sports teams on which the child

played, unaware of when and where the child graduated

from high school, apparently did not know what college

the child attended until after the child’s death, and never

had any correspondence or telephone calls with the child.

When the child applied for college admission, he

drew a line through the blank for “father”.

By contrast, it is undisputed that the Petitioner did

take responsibility for supervision, education, protection,

and care of the child, although she did accept very sub-

stantial help from her mother. The child’s residence at the

time of his death was in the home of Petitioner, his

mother. He had a close, affectionate familial relationship

with Petitioner, her husband, and Petitioner’s other chil-

dren.

When the child died, however, Respondent was the

first person - out of all the families of killed or injured

students — to file a tort suit, seeking half of all monetary

TP

TLE I I I ae

damages for the death of the son he had shunned for

twenty years.

In Superior Court, Respondent contended that

O.C.G.A. § 53-2-20 (formerly § 53-4-30) violates equal

protection under the Fourteenth Amendment to the

United States Constitution because it creates a gender-

based classification. Petitioner replied with two affidavits

on public policy considerations and legislative intent.

First is the affidavit of Patrick F. Fagan, a former

Deputy Assistant Secretary for Family and Social Services

Policy of the U.S. Department of Health and Human

Services, who is now the William H.G. FitzGerald Fellow

in Family and Cultural Issues at The Heritage Founda-

tion. Mr. Fagan discussed at length the public policy

concerns regarding the consequences of fatherlessness,

and the relationship of the subject statute to those gov-

ernmental objectives. (Pet. App. D).

Second is the affidavit of State Representative Wil-

liam C. Randall, Chairman of the Special Judiciary Com-

mittee of the Georgia House of Representatives, sponsor

of the legislation now codified as O.C.G.A. § 53-2-4(b)(2)

(formerly O.C.G.A. § 53-4-5(b)(2)) (House Bill 251, 1991

Session). (Pet. App. E).

The Superior Court disregarded all evidence of

Respondent's lack of relationship with or responsibility

toward the child, as well as the Fagan and Randall affi-

davits. Its order of summary judgment was limited to

finding O.C.G.A. § 53-2-4(b)(2) (formerly O.C.G.A.

§ 53-4-5(b)(2)) facially unconstitutional due to the exis-

tence of a gender-based classification. (Pet. App. F).

b. Appeal to the Supreme Court of Georgia.

The Supreme Court of Georgia affirmed on the

ground that O.C.G.A. § 53-2-4(b)(2) (formerly O.C.G.A.

§ 53-4-5(b)(2)) violates equal protection due to a gender

based classification. (Pet. App. B).

In reaching its decision, the Supreme Court of Geor-

gia:

® Misapplied this Court's splintered decision in Miller

v. Albright, 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d

575 (1998). Concurring opinions in Miller, citing U.S.

v. Virginia, infra, left room for confusion regarding the

distinction between equal protection concerns about

gender-based classifications and the lack of constitu-

tional protection for parents who have failed to take

advantage of the opportunity to develop a significant

familial relationship with the child, and who never

took any responsibility with respect to the supervi-

sion, education, protection, or care of a child.

@ Misapplied this Court’s decision in United States v.

Virginia, 518 U.S. 515, 116 S. Ct. 2264 (1996). While

gender-based classifications are suspect, they are not

necessarily fatal. U.S. v. Virginia does not relate in any

way to the position of a biological father claiming a

right to profit from the death of an out of wedlock

child he had shunned in life. Conversely, this case

does not involve closure of any legitimate “gates of

opportunity” for economic, social or educational

advancement of either gender, or any overbroad gen-

eralization about abilities, talents, capacities or pref-

erences of either gender.

@ Misapplied this Court’s decision in Parham v. Hughes,

441 U.S. 347, 60 L. Ed. 2d 269, 99 S. Ct. 1742 (1979),

the only case this Court has decided on the rights of a

father of a child born out of wedlock to get money

oe Po -

due to the death of the child. The court disregarded

the fact that paternity was not in question in Parham,

and disregarded this Court’s concern for the vital

importance of a parent’s conduct demonstrating

responsibility for a child born out of wedlock.

@ Disregarded the following relevant decisions of this

Court, which are in direct conflict with the decision in

this case: Quilloin v. Walcott, 434 U.S. 246 (1978); Lehr

v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct.

2985 (1983).

S

ARGUMENT AND CITATION OF AUTHORITY

A. A biological parent of a child born out of wedlock is

not entitled to constitutional protection of the right

to inherit from the estate of that child, where the

biological parent failed to develop a significant

familial relationship with the child, never initiated

any contact with the child, and never took any

responsibility with respect to the daily supervision,

education, protection, or care of the child.

Does any biological parent have a constitutional right

to reap a financial windfall from the death of an out of

wedlock child with whom he (or she) had no significant

familial relationship, and for whom he (or she) shoul-

dered no responsibility for supervision, education, pro-

tection or care? In such a situation, does it matter that a

state statute was not worded in perfectly gender-neutral

language? This Court has never suggested the existence

of such a right.

However, the Supreme Court of Georgia apparently

found this Court’s splintered decision in Miller v. Al-

bright, 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575

(1998) sufficiently confusing that it was led to strike

down a state statute because it was not expressed in

purely gender-neutral terms, without regard for the

Respondent's lack of relationship with or responsibility

toward the child. The result is to allow such a father to

reap a financial windfall from the death of the child he

had shunned in life, and to set a dangerous precedent for

other jurisdictions.

1. In its sole decision dealing with the rights of the

biological father of a child born out of wedlock

to benefit financially from the death of the

child, this Court approved a statute that barred

wrongful death recovery by a father unless he

had formally legitimated the child, even though

paternity was undisputed and a genuine familial

relationship existed.

Parham v. Hughes, 441 U.S. 347, 60 L. Ed. 2d 269, 99

S. Ct. 1742 (1979), a Georgia wrongful death case, is the

only decision of this Court involving the rights of an

illegitimate father after the death of the child.

In Parham, it was undisputed that Parham was the

biological father, that he consented to be identified as the

father on the birth certificate of a child born out of

wedlock, that he regularly supported the child, and that

he had daily contact with the child before the collision

that killed the mother and child.

However, this Court upheld a statute that completely

barred a father from recovering for the wrongful death of

his child born out of wedlock unless the father had for-

mally legitimated the child. Despite the evidence of the

father’s involvement with the child, the Court concluded

that the Georgia statute did not invidiously discriminate

against the appellant simply because he is of the male

sex, so the statute passed constitutional muster, even

though the statute was not expressed in gender-neutral

terms. 441 U.S. at 355. While obiter dicta included discus-

sion of the difficulties of proving paternity, which was

uncontested in Parham as it is in this case, the Court's

holding was based upon the father’s voluntary conduct

in failing to legitimate the child. The Court concluded

that “the statutory classification does not discriminate

against fathers as a class but instead distinguishes

between fathers who have legitimated their children and

those who have not.” 441 U.S. 347 at 356.

This Court also clearly distinguished the father’s

right to sue for money damages after the death of a child

from the father’s right to raise his own children. 441 U.S.

at 358-59.

As in Parham, the biological father in this case seeks

to benefit financially from the death of a child he sired

out of wedlock. Unlike the father in Parham, the Respon-

dent did not have a familial relationship with the child.

2. This Court has properly found that a biological

father of a child born out of wedlock has a

constitutionally protected right to protect a

familial relationship with a living child.

In Stanley v. Illinois, 405 U.S. 645 (1972), an unwed

father had lived with his children all their lives and had

lived with their mother for 18 years, though he never

10

married the mother. An Illinois statute conclusively pre-

sumed every father of a child born out of wedlock to be

an unfit person to have custody of his children, so that

the facts of his familial relationship with the children

were deemed irrelevant. When the mother died, the chil-

dren were made wards of the state without a hearing,

even though there was nothing in the record to indicate

that the father had been neglectful or had not cared for

his children. This Court properly found a violation of due

process in taking those children away from the unmar-

ried father with whom they had lived in a family unit all

their lives, without a hearing and a particularized finding

that the father was actually unfit.

In Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297,

99 S. Ct. 1760 (1978), a New York adoption case, this

Court struck down a statute which allowed a mother of a

child born out of wedlock to block adoption of her child

simply by withholding her consent, but allowed the ille-

gitimate father to block adoption of the child only by

showing adoption was not in the children’s best interest.

In that case, the father had lived with the mother for

several years, representing themselves as husband and

wife though they were never legally married. The father

was identified as the father on the children’s birth certifi-

cates, and maintained consistent contact with the children

after separating from the mother.

In those circumstances, the Court found that the gen-

der-based distinction between fathers and mothers was

not substantially related to an important governmental

objective. However, the Court noted “the importance in

cases of this kind of the relationship that in fact exists

between the parent and child,” 441 U.S. at 393 (n. 14), and

11

that the Court did “not question a State’s right to

. . » provide that fathers who have abandoned their chil-

dren have no right to block adoption of those children.”

The Court's rationale in striking down the New York

statute included the fact that it discriminated against

unwed fathers “even when. . . they have manifested a

significant paternal interest in the child.” 441 U.S. at 393.

In so doing, the Court noted that in rejecting an

unmarried father’s constitutional claim in Quilloin, infra,

it had “emphasized the importance of the appellant's

failure to act as a father toward his children, noting that

he ‘has never exercised actual or legal custody over his

child, and thus has never shouldered any significant

responsibility with respect to the daily supervision, edu-

cation, protection, or care of the child.’ ” 441 U.S. at 389.

In both Stanley and Caban, this Court properly pro-

tested the due process and equal protection rights of

those who had demonstrated real parental concern and

involvement with their children, fathers who - in the

words of the Georgia statute - “openly treat(ed) the child

as his own.”

3. This Court has found a biological father of a

child born out of wedlock has no constitu-

tionally protected right, even in his potential

relationship with a living child, where he has

not grasped the opportunity to establish a sig-

nificant familial relationship, and has never

shouldered any significant responsibility with

respect to the supervision, education, protection,

or care of the child.

In Quilloin v. Walcott, 434 U.S. 246 (1978), a Georgia

adoption case, the biological father of a child born out of

12

wedlock sought to block stepparent adoption by the hus-

band of the twelve-year-old child’s mother. The Georgia

adoption statute at that time allowed adoption of a child

born out of wedlock with the mother’s consent only,

unless the biological father had previously legitimated

the child. That biological father was more involved than

Respondent was in the life of the child in this case, in that

Quilloin had consented to be identified as father on the

child's birth certificate, had many visits with the child,

and gave the child toys and gifts. However, in eleven

years he never filed a petition for legitimation or shoul-

dered any significant responsibility with respect to the

child’s supervision, education, protection, or care. Like

the child in this case, the child had lived with his mater-

nal grandmother for a period of time, but eventually

lived with his mother and her husband. Quilloin filed a

petition for legitimation only after the stepfather filed a

petition for adoption. The trial court found that adoption

by the stepfather was in the best interests of the child,

and legitimation by the biological father was not, and the

Supreme Court of Georgia affirmed.

In Quilloin, Justice Marshall cited Stanley v. Illinois,

405 U.S. 645 (1972) for the principle that an unwed

father’s “interest in ‘the companionship, care, custody

and management’ of his children is ‘cognizable and sub-

stantial’.” However, the biological father “has never exer-

cised actual or legal custody over his child, and thus has

never shouldered any significant responsibility with

respect to the daily supervision, education, protection, or

care of the child. Appellant does not complain of his

exemption from these responsibilities. .. . ” 434 U.S. at

256. Therefore, the unanimous Court found no violation

SS —————E

13

of the biological father’s rights of due process or equal

protection, even though the statute was not expressed in

gender-neutral terms.

In Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103

S. Ct. 2985 (1983), a New York adoption case, the biolog-

ical father complained of lack of notice of the mother’s

husband's petition to adopt the two-year-old child. The

biological father had lived with the mother prior to the

child’s birth and visited her in the hospital when the

child was born, but his name did not appear on the

child's birth certificate, he did not live with the mother or

child after the child’s birth, he had never provided them

with any financial support, and he had never offered to

marry the mother. As in Quilloin, after the stepfather filed

a petition for adoption, the biological father filed a pater-

nity petition and sought visitation. The biological father

contended that his rights of equal protection and due

process were violated by the post-Caban New York adop-

tion statute.

In Lehr, Justice Stevens’ plurality opinion noted a

long line of precedents for the principle that the rights of

the parents are a counterpart of the responsibilities they

have assumed. Quoting Justice Stewart's dissent in Caban,

Justice Stevens wrote that, “Even if it be assumed that

each married parent after divorce has some substantive

due process right to maintain his or her parental relation-

ship, . . . it by no means follows that each unwed parent

has any such right. Parental rights do not spring full-

blown from the biological connection between parent and

child. They require relationships more enduring.” This

rationale is further developed as follows:

14

The difference between the developed parent-

child relationship that was implicated in Stanley

and Caban, and the potential relationship

involved in Quilloin and this case, is both clear

and significant. When an unwed father demon-

strates a full commitment to the responsibilities

of parenthood by “[coming] forward to partici-

pate in the rearing of his child,” Caban, 441 U.S.,

at 392, his interest in personal contact with his

child acquires substantial protection under the

Due Process Clause. At that point it may be said

that he “[acts] as a father toward his chil-

dren.”. .. . But the mere existence of a biological

link does not merit equivalent constitutional

protection. .. . The significance of the biological

connection is that it offers the natural father an

opportunity that no other male possesses to

develop a relationship with his offspring. If he

grasps that opportunity and accepts some mea-

sure of responsibility for the child’s future, he

may enjoy the blessings of the parent-child rela-

tionship and make uniquely valuable contribu-

tions to the child’s development. If he fails to do

so, the Federal Constitution will not automat-

ically compel a State to listen to his opinion of

where the child’s best interests lie. 463 U.S. at

261-62.

Regarding the father’s contention of invidious gen-

der-based discrimination in that the mother was accorded

rights different from those of the father of a child born

out of wedlock, the Court (Stevens, J.), wrote:

In Quilloin v. Walcott, we noted that the putative

father, like appellant, “[had] never shouldered

any significant responsibility with respect to the

daily supervision, education, protection, or care

of the child. Appellant does not complain of his

15

exemption from these responsibilities. ... ” [cit.

omitted] We therefore found that a Georgia stat-

ute that always required a mother’s consent to

the adoption of a child born out of wedlock, but

required the father’s consent only if he had

legitimated the child, did not violate the Equal

Protection Clause. Because appellant, like the

father in Quilloin, has never established a sub-

stantial relationship with his daughter, . . . the

New York statutes at issue in this case did not

operate to deny appellant equal protection. . . .

If one parent has an established custodial rela-

tionship with the child and the other parent has

either abandoned or never established a rela-

tionship, the Equal Protection Clause does not

prevent a State from according the two parents

different legal rights. 463 U.S. at 266-67.

See also, Michael H. v. Gerald D., 491 U.S. 110, 105

L. Ed. 2d 91, 109 S. Ct. 2333 (1989).

Most recently, in Miller v. Albright, 523 U.S. 420, 118

S. Ct. 1428, 140 L. Ed. 2d 575 (1998), the Court’s judgment

reaffirmed the principle that “fathers and mothers of

children born out of wedlock are not similarly situated.”

In Miller, the biological father stipulated to paternity of a

young adult Filipino woman who was conceived when

the father was serving with the U.S. Air Force in the

Phillipines, and supported his out of wedlock daughter's

application for registration as a U.S. citizen by birth

based upon her being the child of a U.S. citizen. However,

8 U.S.C. § 1409(a)(4) provided that children born abroad

and out of wedlock to citizen fathers and alien mothers

had to obtain formal proof of paternity by age 18 in order

to acquire United States citizenship by birth, while that

requirement did not apply to children born abroad to

16

citizen mothers and alien fathers. The daughter alleged

that the statute’s different treatment of citizen fathers and

citizen mothers was an unjustified gender classification

that violated the father’s federal constitutional right to

equal protection. The Court rejected that claim.

There was no majority opinion. Justice Stevens

announced the judgment of the Court in an opinion

joined by Chief Justice Rehnquist. Citing Parham and Lehr,

Justice Stevens rejected the equal protection claim, noting

that “mothers and fathers of illegitimate children are not

similarly situated,” 140 L. Ed. 2d 575 at 585, and that any

“unfavorable gender-based treatment was attributable to

Mr. Miller’s failure to take appropriate action within 21

years.” 140 L. Ed. 2d 594.

Justices O’Connor and Kennedy concurred in the

judgment on the ground that the daughter had no stand-

ing to argue the issue of gender-based discrimination

against her father as she was not in the class of persons

allegedly discriminated against. Justices Scalia and

Thomas also concurred in the judgment only, joining in

an opinion that the Court has no power to confer citizen-

ship on a basis other than that prescribed by Congress.

Finally, Justices Ginsberg, Souter and Breyer dissen-

ted. Justice Ginsberg’s dissent goes through an in-depth

account of the history of U.S. immigration law before

concluding that the “gates of opportunity” should not be

controlled so as to “exclude qualified individuals based

on ‘fixed notions concerning the roles and abilities of

males and females’ or ‘rely on overbroad generalizations

about the different talents, capacities, or preferences oi

males and females.’” Justice Breyer’s dissent includes

17

criticism of the immigration statute for not distinguishing

between caretaking and non-caretaking parents, rather

than using gender-based classification. ff

The case at the bar is readily distinguishable from

Miller in that this case does not deal with a relationship of

a father with a living child, or with legitimate “gates of

opportunity” for social, economic or educational advan-

cement of the child. Rather, this case involves only the

asserted right of a biological father to benefit financially

from the death of a child he sired out of wedlock but

shunned in life.

4. There is a significant difference between the

right to cultivate a relationship with a living

child and the right to inherit from a deceased

child, where a biological father failed to culti-

vate a significant familial relationship or shoul-

der any significant responsibility for the child

when the child was alive.

Stanley, Quilloin, Caban, Lehr, Michael H. and Miller all

dealt in some way with the rights of biological fathers of

children born out of wedlock to cultivate and preserve

relationships with living children. The law under these

cases is that a biological father who has “shouldered any

significant responsibility with respect to the daily super-

vision, education, protection, or care of the child” is

entitled to constitutional protection of that parental rela-

tionship. If he has not done so, then the relationship even

with a living child is not constitutionally protected.

Death closes all. In this mortal realm, once a child is

dead no parent can begin to undertake “any significant

18

responsibility with respect to the daily supervision, edu-

cation, protection, or care of the child”. The uninvolved

parent’s tardy remorse cannot change that.

Parham recognizes that sad reality. The Georgia

Supreme Court does not.

5. The statute in question does not close any legiti-

mate “gate of opportunity” for a biolugical father

who failed to openly treat a child as his own.

In contrast to United States v. Virginia, 518 U.S. 515,

116 S. Ct. 2264 (1996), the statute in this case does not

involve invidious gender-based discrimination. There is

no restriction on a biological father’s cultivation of rela-

tionship with a living child. The statute does not deni-

grate either gender, or close any “gate of opportunity” for

social, economic or educational advancement based on

merit. It does not perpetuate legal, social or economic

inferiority of either gender. The statute in this case

merely recognizes inherent differences in the roles of men

and women who are not fungible in human reproduction

~ between women who necessarily bear children with

their bodies and men who are physically capable of play-

ing no role beyond that of a sperm donor.

6. The statute, as applied in this case, does not

discriminate against Respondent just because he

is a man. Rather, it makes a valid distinction

between classes of fathers on the basis of volun-

tary conduct and personal responsibility toward

a child.

While not worded in perfectly gender-neutral lan-

guage, the statute does not rely upon overbroad gender-

19

based stereotypes. It does not discriminate between men

and women on the basis of overbroad generalizations

about different talents, capacities or preferences of males

and females. Rather, as applied in this case, it distin-

guishes between two classes of men on the basis of con-

duct. Those who sire children out of wedlock and openly

treat them as their own may inherit from such children.

Those who fail or refuse to openly treat such children as

their own may not inherit. The rationales discussed in the

Randall and Fagan affidavits do constitute sufficiently

persuasive justification for the classification in the stat-

ute.

The parties would be similarly situated, and Respon-

dent would be denied equal protection, only if there were

a contention that Petitioner had also failed or refused to

openly treat the child as her own.

That is not the case. There has been no contention

that Petitioner failed to openly treat the child as her own

son. It is beyond dispute that Petitioner, albeit with great

help from her mother, did shoulder substantial respon-

sibility for the supervision, education, protection, and

care of her son throughout his life. It is likewise beyond

genuine dispute that Respondent had the opportunity to

do all of that, but did none of it.

20

B. This case presents a clean vehicle foz the Court to

establish a clear precedent holding that, notwith-

standing the lack of perfectly gender-neutral lan-

guage in a statute, no biological parent of a child

born out of wedlock has a constitutionally pro-

tected right to reap a financial windfall from the

death of a child with whom he or she had no signif-

icant familial relationship, and for whom he or she

shouldered no responsibility for the child’s super-

vision, education, protection, or care.

This case involves no convoluted consideration of

facts and evidence, as those were simply not addressed or

ruled upon by the courts below. It is limited to consider-

ation of a single issue of federal constitutional law con-

sidered in the abstract, applied to a simply worded state

statute. The contentions argued in the lower courts pre-

sent the question clearly. Both legal and moral dimen-

sions of the case are clear cut. Moreover, the result of the

decision appealed from is morally egregious. Thus, the

Court has a clear opportunity to concisely and emphat-

ically clarity a point of federal constitutional law that has

become unfortunately muddled with morally reprehens-

ible results.

Respectfully submitted,

KeNNeTH L. SHIGLEY

Attorney for Petitioner

Georgia Bar No. 642744

3166 Mathieson Drive

Suite 200

Atlanta, GA 30305

(404) 364-1999

APPENDIX

Page

APPENDIX A SUPREME COURT OF GEORGIA,

1999 Ga. LEXIS 58, January 19,

ey er ee App. 1

APPENDIX B SUPREME COURT OF GEORGIA,

Case No. $98A1518, Atlanta, Feb-

I ee A sais od de décknn s App. 5

APPENDIX C Order Denying Petitioner’s

Motion For Summary Judgment

And Order Granting Respon-

dent’s Motion For Summary

DUN os Sin awdags chseeesunes App. 6

APPENDIX D Affidavit of Patrick F. Fagan ...App. 9

APPENDIX E_ Affidavit of William C. Randall ..App. 19

App. 1

APPENDIX A

In the Supreme Court of Georgia

Decided: JAN 19 1999

S98A1518. RAINEY v. CHEVER.

HUNSTEIN, Justice.

Twenty-year-eld DeAndre Bernard Hamilton was

killed in an automobile accident in August 1997. Ham-

ilton was born out of wedlock to his mother, appellant

Rainey. Chever is Hamilton’s biological father as his

paternity was judicially established in January 1979. In

November 1997, Rainey filed an action to have Chever’s

rights of inheritance severed under OCGA § 53-4-5(b)(2).

That statute was recodified in substantial part effective

January 1, 1998 as OCGA § 53-2-4(b)(2) and precludes the

father of a child born out of wedlock from inheriting from

the child if he failed or refused to openly treat the child |

as his own or failed or refused to provide support for the

child. Rainey moved for summary judgment alleging that

Chever failed or refused to openly treat Hamilton as his

child. Chever filed a cross motion for summary judgment

alleging that current OCGA § 53-2-4(b)(2) violates the

equal protection guarantees contained in both the Geor-

gia and United States Constitutions. The trial court

denied Rainey’s motion and instead granted Chever’s

motion for summary judgment finding that the statute

creates a gender-based classification such that a father of

a child born out of wedlock cannot inherit from his child

if he failed or refused to openly treat the child as his own,

but a mother who acts in the same manner can inherit

from the child and that there is no legitimate state inter-

est achieved by not subjecting mothers of illegitimate

App. 2

children to the same standards of conduct. We affirm,

holding that OCGA § 53-2-4(b)(2), former OCGA

§ 53-4-5(b)(2), creates a gender-based classification in vio-

lation of the equal protection clauses of both the United

States and Georgia constitutions. See U.S. Const. Amend.

XIV, § 1; Ga. Const. of 1983, Art. I, Sec. I, Par. II.

1. The State and Rainey argue that OCGA

§ 53-2-4(b)(2) does not create a gender-based classifica-

tion because the statute distinguishes not between

mothers and fathers but between fathers who treat their

illegitimate child as their own and those who do not. We

disagree. OCGA § 53-2-4(b) provides that a father of a

child born out of wedlock may inherit from the child born

out of wedlock in the same manner as if the child were

legitimate if the child is legitimized or paternity estab-

lished by one of the methods identified in subsection

(b)(1). Notwithstanding the legitimization of the child or

proof of paternity under subsection (b)(1), subsection

(b)(2) imposes an additional obligation upon a father

before he may inherit from a child born out of wedlock,

i.e., the father must not have failed or refused openly to

treat the child as his own or failed or refused to provide

support for the child. Id. The same obligations are not

imposed by any version of the statute upon similarly

situated mothers. Under Georgia law, the mother of a

child born out of wedlock is permitted to inherit from the

child as though the child were legitimate without any

precondition as to recognition of the child or having

provided support for the child. OCGA § 53-2-4(a). There-

fore, by its plain language, OCGA § 53-2-4(b)(2) creates a

gender-based classification in that only fathers of chil-

dren born out of wedlock must openly treat the child as

App. 3

their own and provide support for the child in order to

inherit from the child.

2. Gender-based classifications are subject to a

strong presumption of constitutional invalidity. United

States v. Virginia, 518 US 515 (IV) (116 SC 2264,135 LE2d

735) (1996). A statute containing a gender-based classi-

fication violates equal protection unless the classification

furthers important governmental objectives, and the dis-

criminatory means employed are “substantially related”

to the achievement of those governmental objectives. Reed

v. Reed, 404 US 71, 76 (92 SC 251, 30 LE2d 225) (1971);

Franklin v. Hill, 264 Ga. 302, 303(1) (444 SE2d 778) (1994).

The justification for making a gender-based classification

proffered by the State must be “exceedingly persuasive,”

genuine, and not hypothesized, United States v. Virginia,

supra at 533, and it “must not rely on overbroad general-

izations about the different talents, capacities, or prefer-

ences of males and females. [Cits.]” Id. See also Craig v.

Boren, 429 US 190(11)(C) (97 SC 451, 50 LE2d 397) (1976).

Both Rainey and the State contend that OCGA

§ 53-2-4(b)(2) advances the State’s interest in encouraging

fathers to take responsibility for their children born out of

wedlock and encouraging parental responsibility by pre-

cluding an uninvolved father from profiting from the

death of a child born out of wedlock. While these may be

legitimate State interests, neither justify the additional

obligations OCGA § 53-2-4(b)(2) imposes solely upon

fathers of children born out of wedlock. Although the

State has an important interest in encouraging fathers to

. take responsibility for children born out of wedlock, the

State has an equally important interest in encouraging the

App. 4

identical behavior in mothers. Therefore, the State inter-

est proffered to support subsection (b)(2) does not justify

a classification based solely on the gender of the parent.

We reject the argument that mothers are less likely than

fathers to abandon children born out of wedlock as

reliant on stereotypes and overbroad generalizations. See

Miller v. Albright, __ US __ (118 SC 1428, 1440(V), 140

LE2d 575) (1998) (Court agreed it would be unlikely that

any gender Classification based on stereotypes could sur-

vive heightened scrutiny). Moreover, the State’s reliance

on Parham v. Hughes, 441 US 347 (99 SC 1742, 60 LE2d 269)

(1979) is misplaced as different policy considerations are

at issue. The State’s interest recognized in Parham,

namely, avoiding problems in proving paternity, is not

applicable to our analysis of OCGA § 53-2-4(b)(2) because

such interest is advanced by the requirement under sub-

section (b)(1) that the father judicially establish paternity

prior to the death of the child. Accordingly, there being

no “exceedingly persuasive” justification for treating the

inheritance rights of mothers and fathers of children born

out of wedlock differently, we find OCGA § 53-2-4(b)(2)

to be unconstitutional.

Judgment affirmed. All the Justices concur.

App. 5

APPENDIX B

(LOGO) SUPREME COURT OF GEORGIA

Case No. S98AI1518

Atlanta February 11, 1999

The Honorable Supreme Court met pursuant to

adjournment.

The following order was passed:

Zenobia Rainey v. Robert Lee Chever

Upon consideration of the Motion to Stay Remittitur

filed in this case, it 1s ordered that it be hereby denied.

(LOGO) SUPREME COURT OF THE

STATE OF GEORGIA

Clerk's Office, Atlanta

I hereby certify that the above is a true

extract from the minutes of the Supreme

Court of Georgia

. Witness my signature and the seal of

said court hereto affixed the day and year

last above written.

/s/ Lynn M. Stenchcomb

Chief Deputy Clerk

App. 6

APPENDIX C

IN THE SUPERIOR COURT OF GWINNETT COUNTY

STATE OF GEORGIA

CIVIL ACTION FILE

NO. 97-A-8028-3

PETITIONER’S

MOTION FOR

SUMMARY

JUDGMENT

and

RESPONDENT'S

MOTION FOR

SUMMARY

JUDGMENT

MRS. ZENOBIA RAINEY,

Petitioner,

v.

ROBERT LEE CHEVER,

*

*

*

Respondent. *

*

ORDER DENYING PETITIONER’S MOTION

FOR SUMMARY JUDGMENT

AND

ORDER GRANTING RESPONDENT’S MOTION

FOR SUMMARY JUDGMENT

(Filed May, 1998)

The parties to the above styled action having filed

cross motions for summary judgment and said motions

having come on for hearing before me on the 29th day of

April, 1998; the Court, having considered the briefs and

argument of counsel, makes the following findings and

conclusions of law:

1) With the Respondent having satisfied the condi-

tions of O.C.G.A. § 53-2-4(B)(1) [formerly O.C.G.A.

§ 53-4-5(B)(1)] by judicially establishing paternity in the

App. 7

January 4, 1979 order of the Superior Court of Turner

County, Civil Action File No. 2433 (Exhibit 1 to Respon-

dent’s motion), this Court finds that the Petitioner and

Respondent were similarly situated under the intent and

purpose of the statutory scheme set forth in O.C.G.A.

§ 53-2-4 as well as under the directives of the United

States Supreme Court in the case of Parnham v. Hughes,

441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979).

2) The Court finds that the provisions of O.C.G.A.

§ 53-2-4(B)(2) [formerly O.C.G.A. § 53-4-5(B)(2)] create a

gender classification such that a father (or any paternal

kin) of an illegitimate child cannot inherit from his child

if he failed or refused to openly treat the child as his own

or failed or refused to provide support for the child, but a

mother (or any maternal kin) who acts in the same man-

ner can inherit from the child. In other words, the statute

fails to address the issue of inheritance by a mother who

has abandoned her illegitimate child. “To withstand con-

stitutional challenge, a gender-based classification must

serve important governmental objectives.” Franklin v.

Hill, 264 Ga. 302, 303 (1994) (internal citations and punc-

tuation omitted). Upon examination, the Court can find

no legitimate state interest or important objective which

is advanced or achieved by singling out fathers of illegiti-

mate children while not subjecting mothers of illegitimate

children to the same standards of conduct. Therefore, this

Court concludes that O.C.G.A. § 53-2-4(B)(2) [formerly

O.C.G.A. § 53-4-5(B)(2)] is constitutionally invalid in that

it violates the federal and state equal protection guaran-

tees. See, e.g., Tolbert v. Murrell, 253 Ga. 566(3) (1984);

Franklin, supra at 303 (and the cases cited therein).

App. 8

3) Accordingly, with there being no other statutory

or legal reason to deny Respondent his rights of inheri-

tance from the estate of his deceased son, Petitioner's

Motion for Summary Judgment is DENIED and Respon-

dent’s Motion for Summary Judgment is GRANTED. The

Court therefore need not address any disputed factual

issues concerning Respondent's alleged failure or refusal

to openly treat the child as his own or to provide support

for the child.

SO ORDERED this 8th day of _ May _, 1998.

/s/ Dawson Jackson

DAWSON JACKSON

Judge, Gwinnett Superior

Court

Copies to:

Kenneth L. Shigley

Craig Alan Webster

App. 9

APPENDIX D

AFFIDAVIT OF PATRICK F. FAGAN

(Filed May 7, 1998)

1.

My name is Patrick F. Fagan. I am over eighteen

years of age, have no legal disability, and give this affi-

davit on the basis of personal knowledge and on my

training, study, experience and research in the fields of

psychology, sociology, family structure, urban policy, the

breakdown of the family in America, crime, and cultural

issues.

2.

I earned a master’s degree in psychology at Univer-

sity College Dublin and have pursued doctoral studies at

The American University. Before becoming involved in

public policy matters as a Legislative Analyst for a

United States Senator, | was a family therapist, sociolo-

gist, and behavioral consultant in the inner city and else-

@mhere. During the Bush Administration, I served as

Deputy Assistant Secretary for Family and Social Services

Policy of the U.S. Depa.tment of Health and Human

Services.

3.

Currently, I am the William H.G. FitzGerald Fellow in

Family and Cultural Issues at The Heritage Foundation,

214 Massachusetts Avenue, NE, Washington, DC 20002,

where I focus on urban policy, the breakdown of the

App. 10

family in America, crime, and cultural issues. The Heri-

tage Foundation is a research and educational institute

whose mission is to formulate ard promote public poli-

cies based on the principles of tree enterprise, limited

government, individual freedom, traditional American

values, and a strong national defense. My research and

writing at The Heritage Foundation pertinent to the sub-

ject matter of this affidavit are the following: “Rising

Illegitimacy: America’s Social Catastrophe,” F.Y.I. No. 19,

June 29, 1994; “The Child Abuse Crisis: The Disintegra-

tion of Marriage, Family and the American Community,”

Backgrounder No. 1115, May 15, 1997; “The Real Root

Causes of Crime: The Breakdown of Marriage, Family

and Community,” Backgrounder No. 1026, March 17, 1995.

4.

I have been asked to render a public policy analysis

as to whether a particular Georgia statute is substantially

related to achievement of important governmental objec-

tives. O.C.G.A. § 53-4-5(b)(2) provides as follows:

“Paragraph (1) of this subsection notwithstand-

ing, neither the father nor any paternal kin shall

inherit from or through a child born out of

wedlock if it shall be established, by a prepon-

derance of evidence, that the father, during his

lifetime and after the birth of the child, failed or

refused to openly treat the child as his own or

failed or refused to provide support for the

child.”

App. 11

5.

Over the past generation, the American family has

been weakened by two widespread patterns undermining

the institution of marriage: giving birth to children born

out of wedlock, and divorce. Among all demographic

groups in all parts of the United States, there has been a

steady upward trend in out-of-wedlock births. From 1980

to 1995, the percentage of births out of wedlock rose from

11% to 25.3% among whites, and from 58% to 69.9%

among blacks. In some areas of the United States, the

percentage of out-of-wedlock births among blacks

exceeded 80% in 1995.

6.

Children pay a high price for growing up without the

presence and involvement of a father. Studies of children

born out-of-wedlock reveal that among the principal

effects of birth out-of-wedlock and growing up without

the presence and active involvement of a father are: lower

newborn health and increased risk of early infant death;

retarded cognitive and verbal development: lowered edu-

cational achievement; lowered levels of job attainment;

increased behavioral problems; lowered ability to control

impulses; warped social development; increased depen-

dence on welfare; increased exposure to crime; and

increased risk of being physically or sexually abused. All

of these effects of out-of-wedlock births support a strong

state interest in discouraging out-of-wedlock births and

paternal irresponsibility.

App. 12

7.

Research over several decades has indicated that a

biological father of a child born out of wedlock is

unlikely to maintain any consistent relationship with the

mother and child out of wedlock. Follow-up studies of

mothers who kept their babies shows that less than 10%

of fathers of children born out of wedlock had consis-

tently kept in touch with the mothers and children for

even a few months after the birth out of wedlock, and

that the fathers tended to provide financial support only

as required by court order.

8.

The virtual extinction of two-parent families in poor

inner-city neighborhoods, which is related to a high pro-

portion of out-of-wedlock births and single-parent fami-

lies, has contributed greatly to the collapse of those

neighborhoods. The absence of fathers often means there

is no adult male to give financial support, a guiding

hand, or protection for children. The result is the preva-

lence of gangs of violent young men, young girls vulner-

able to abuse, children having children, and mindless

violent crime. Under such conditions, parental supervi-

sion of adolescent and pre-adolescent children is almost

impossible. Neighborhoods without fathers are neighbor-

hoods without men able and willing to confront errant

youth, chase threatening gangs, and reproach delinquent

fathers. Children raised in these neighborhoods are likely

to learn to accept and use physical violence to satisfy

their wants and needs. A state-by-state analysis of statis-

tics from the FBI Crime Index and from the National

App. 13

Center for Health Statistics reveals that each 10% increase

in out-of-wedlock births is associated with a 17% increase

in violent teenage crime. One study, consistent with vir-

tually all literature on the subject, indicates that the rela-

tionship between crime and one-parent families is so

strong that controlling for family configuration erases the

relationship between race and crime and between low

income and crime. The effect of out-of-wedlock births on

crime, community disintegration and public order, and

the resulting increase in requirements for public expendi-

tures for police, prisons and welfare, constitutes a legiti-

mate state interest in discouraging out-of-wedlock births

and paternal irresponsibility.

9.

Researchers have found that boys from fatherless

homes tend to be less vigorous, less well adjusted in their

peer relations, more likely to strive for compensatory

masculinity, more immature, more anxious about sex, and

more effeminate than boys who had consistent fathering.

The absence of the father may result in a boy failing to —

develop a positive male identity, resulting in rage against

women and against society. In addition, researchers have

found that fatherless children are likely to be more impul-

sive and choose immediate rewards over those that must

be delayed. Antisocial behavior of the sort likely to get a

youngster into serious trouble has been reported more

often, on “anonymous confession” surveys, by father-

absent young men than by those whose fathers had been

in the home. There is some indication that the absence of

a father may lead a young boy to confuse being “good”

with being feminine, so that to be masculine, he must be

App. 14

“bad.” Research also reveals that a disproportionate

number of prostitutes, drug addicts, unwed mothers and

other deviants came from homes lacking a stable father

figure in the home. All of these adverse social conse-

quences of out-of-wedlock births and fatherlessness sup-

port a strong state interest in discouraging out-of-

wedlock births and paternal irresponsibility.

10.

Mothers of children born out of wedlock are also

adversely affected. Adolescent single females who bear

children out of wedlock are much more likely than others

to fail to fulfill their educational and occupational poten-

tial, live in poverty, suffer poor self esteem, and become

dependent upon public governmental welfare programs.

This negative social and economic effects of such under-

development of human capital in the work force, com-

bined with the cost of increased welfare costs, constitutes

a strong state interest in discouraging out-of-wedlock

births and paternal irresponsibility.

11.

Fathers of children born out-of-wedlock may also be

adversely affected. Some research indicates that young

men who rely upon sex to prove their masculinity and

maturity, without taking responsibility for others, fre-

quently shirk responsibility for children they sire. That

very shirking of responsibility for their progeny, how-

ever, may rob them of their sense of masculinity and

reinforce their tendencies toward irresponsibility. This

may in turn contribute to the fathers’ failure to fulfill

App. 15

educational and occupational potential, with resulting

social and economic costs to society. This supports a

strong state interest in discouraging out-of-wedlock

births and paternal irresponsibility.

12.

The pattern of disinvestment of paternal time and

commitment has effects even greater than lack of eco-

nomic support from fathers. Fatherlessness contributes to

a decline of character and competence in children, with

common effects ranging from school misconduct to

decline of manners to juvenile crime. Increase of

fatherlessness in society leads to more boys with guns

and more girls with babies.

13.

While Code Section 53-4-5(b)(2) does treat men dif-

ferently from women, that distinction appears to reflect

the real biological differences between men and women

with regard to childbirth and child-rearing. Females are

the only people who get pregnant and give birth. They,

far more than fathers, are for that reason likely to experi-

ence significant parent-child bonding and to take respon-

sibility for child-care from the beginning. Mothers of

children born out-of-wedlock, if they do not give up the

children for adoption, are likely to raise the children

themselves and/or with the assistance of their mothers or

other family members. Female relatives are often heavily

involved in assisting with child-rearing, particularly in

black families. If mothers of children born out-of-wedlock

App. 16

completely abdicate responsibility for caring for the chil-

dren or arranging for their care within the extended

family, they are much more likely than fathers to be

subjected to legal proceedings to place the children in

foster care and to terminate their parental rights. On the

other hand, fathers of children born out-of-wedlock, may

much more easily just absent themselves and never have

any personal involvement with a child, particularly if

their sexual and personal association with the mother has

ended, and there are no social bonds of marriage and

legitimacy to give the father a moral sense of paternal

responsibility. Because of these biological and social fac-

tors related arising from pregnancy and childbirth, but

often continuing through the life of a child born out of

wedlock, mothers and fathers of children born out-of-

wedlock are not similarly situated.

14.

Georgia Code Section 53-4-5(b)(2) serves in [sic] to

eliminate a potential, though perhaps infrequent, incen-

tive for paternal irresponsibility. Males are capable of

impregnating numerous women and girls within a rela-

tively short time period. Males who view their mas-

culinity primarily in terms of sexual conquests sometimes

do that. If even a few such men who father children out-

of-wedlock, but fail to demonstrate a consistent commit-

ment to assume the burdens of parenthood or to establish

a substantial familial relationship to the child, are permit-

ted to enjoy a financial windfall from the death of a child,

that is likely to become part of the common knowledge or

folklore among young men who are otherwise inclined to

personal, sexual and paternal irresponsibility. In the

App. 17

minds of some undetermined proportion of such men, the

possibility of such a windfall may become virtually

another form of a lottery, encouraging them to impreg-

nate even more women and girls in order to increase the

possibility that one of their illegitimate offspring might

die under circumstances that would result in a financial

windfall to the father. However irrational that notion may

seem to mature and educated minds, it is likely to appeal

to an undetermined proportion of undereducated, irre-

sponsible and sexually promiscuous young men.

15.

In my opinion, Georgia Code Section 53-4-5(b)(2)

does not discriminate against fathers of children born out

of wedlock simply because they are members of the male

sex. Rather, it distinguishes between two categories of

men who sire children out of wedlock: those who do both

provide financial support and openly treat their children

as their own, and those who do not do those things.

While courts can order men to pay child support or go to

jail, it is generally up to the father to voluntarily choose

whether or not to shoulder the other responsibilities of

fatherhood, the meaning of which should be obvious to

any man who cares to think even a little bit about the role

of a father toward his child.

App. 18

FURTHER AFFIANT SAYETH NOT.

This 5th day of May, 1998.

/s/ Patrick F. Fagan

Patrick F. Fagan

Sworn to and subscribed before me

this 5th day of May, 1998.

Notary Public /s/ Kathleen M. Rowan

My Commission Expires: February 14, 2000

(SEAL)

1.

App. 19

APPENDIX E

AFFIDAVIT OF WILLIAM C. RANDALL

(Filed May 7, 1998)

My name is William C. Randall. I am over 18 years of

age, have no legal disability, and give this affidavit on

the basis of personal knowledge.

I am a graduate of Emory University School of Law,

have practiced law in Georgia since June 1970, and

was first elected as State Representative from Bibb

County in 1974. I am Chairman of the Special Judici-

ary Committee of the Georgia house of Representa-

tives, and I have held that position at all times

pertinent to the subject matter of this affidavit. I also

serve as a member of the House Rules Committee and

the House Health & Ecology Committee.

In the 1991 session of the Georgia General Assembly, I

sponsored House Bill 251, which was passed into law

and is codified as O.C.G.A. 53-4-5(b)(2). This legisla-

tion provides, in pertinent part, as follows:

“(2) Paragraph (1) of this subsection not-

withstanding, neither the father nor any paternal

kin shall inherit from or through a child born out

of wedlock if shall be established, by a prepon-

derance of evidence, that the father, during his

lifetime and after the birth of the child, failed or

refused to openly treat the child as his own or

failed or refused to provide support for the

child.”

This legislation was drafted, proposed and passed

because of situations that had come to the attention of

members of the General Assembly in which a father

of a child, born out of wedlock had failed to form a

substantial parental relationship with a child, failed

to provide support for the child, or both, and then

App. 20

came forward seeking to profit from the death of the

child. The most prominent example that immediately

comes to my mind involved a child who had become

a professional athlete and made a lot of money, and

upon the adult child’s death the father who had noth-

ing to do with the child as he was growing up came

forward to make a claim as an heir to the adult child’s

estate. We were also aware that there could be other

applications of this, such as an uninvolved biological

father making a claim to a child’s estate claim in the

event of the wrongful death of a child.

This legislation was drafted in terms applying to

fathers of children born out of wedlock because we

found no instances of mothers of children born out of

wedlock having little or nothing to do with their

children. In our legislative hearings, the only exam-

ples of parents of children born out of wedlock failed

to openly treat their children as their own did involve

fathers. Based upon the information presented in our

hearings, and observation of behavior patterns in our

own communities, we found a widespread problem of

fathers of children born out of wedlock failing or

refusing to accept responsibility with regard to child-

rearing, failing or refusing to develop of substantial

family relationships with their children, and failing or

refusing to provide support except as is compelled by

the courts under threat of going to jail.

The phrase “failed or refused to openly treat the child

as his own” was considered to be clear to people of

ordinary common sense who are familiar with the

conduct of parents in this society, and flexible enough

to be applied in the facts of individual cases. It should

be clear that this would involve something more than

a few sporadic contacts initiated by the child seeking

to get to know his or her father who had been totally

uninvolved while the child was growing up.

7.

App. 21

I am an African-American legislator, an active mem-

ber of the NAACP, and have long been deeply con-

cerned about questions of civil rights, due process

and equal protection. This legislation was not based

upon any traditional stereotypes of male and female

gender roles, but rather upon widespread conduct of

fathers of children born out of wedlock which was

reported in testimony before the Special Judiciary

Committee, and which we observed in our own com-

munities. It is based upon real differences in the

conduct of men and women in the real world, appar-

ently arising out of the real biological differences in

their roles related to conception, pregnancy and

childbirth. If we had found any indication of the

existence of a widespread conduct of that sort among

mothers, we would not have made the legislation

specific to fathers only. However, no evidence of such

conduct among mothers of children born out of wed-

lock came to our attention. Apparently, if a mother of

a child born out of wedlock totally fails to treat the

child as her own, most such cases would be dealt

with through Child Protective Services taking action

for termination of her parental rights, and her rights

of inheritance would not become an issue. Therefore,

we dealt with reality in human behavior related to

real differences rather than mere stereotypes or an

abstract ideal, and addressed what we saw as real,

widespread problem of irresponsibility among fathers

of children born out of wedlock.

The intent and the effect of this legislation is not to

discriminate against men because they are men, but

rather to distinguish between two categories of

fathers of children born out of wedlock, based upon

their conduct. Those men who father children out of

wedlock, but both provide support and openly treat

their children as their own, may inherit from a child

born out of wedlock. Only those who do not do both

App. 22

of those things are barred from inheriting from a

child born out of wedlock.

In my opinion as a legislator, the state does have a

[sic] strong an interest in discouraging irresponsible

conduct by biological fathers of children born out of

wedlock. Members of the General Assembly are gen-

erally aware of a correlation between problems of

fatherlessness of children born out of wedlock, and

problems of juvenile crime, welfare costs, prison

costs, and deterioration of community institutions. If

men who are inclined to father children out of wed-

lock by a number of different women and girls were

to hear examples of such men profiting from the

death of a chila tor whom they had taken no substan-

tial responsibility, that would only encourage some of

them to irresponsibly impregnate still more women

and girls out of wedlock, siring more children for

whom they would take no substantial responsibility.

This statute should remove the potential for men

reaping a windfall profit from death of child born out

of wedlock for whom the man accept [sic] no substan-

tial responsibility, which is both a subject of righteous

moral condemnation and a conduct which the state

has a substantial interest in deterring. In my opinion,

this legislation thus serves a legitimate governmental

interest.

App. 23

FURTHER AFFIANT SAYETH NOT.

/s/ William C. Randall

William C. Randall

Sworn to and subscribed

before me this 6th day of

May, 1998.

/s/ Janet R. Gray

Notary Public, Georgia

County of Bibb

My Commission Expires 06-30-2000