Amicus Curiae Brief — Stanley v. Illinois

In THE

Supreme Court of the Bnited States

OcToBER Term, 1970

Nona 70- soy

e

| Pere: Schnee, Si m

<¢

se : 7 aa Appellant,

: —v.—

- PEOPLE OF THE STATE OF ILLINoIs,

Respondent.

BRIEF OF CENTER ON SOCIAL WELFARE POLICY.

my _ _ AND LAW, AMICUS CURIAE

= :

‘JonaTHaN WEISS a Le

| E. JupsoN JENNINGS . of

ao ot _ °° Tespy GoLick

| oo, Center on Social Welfare

: Policy and Law |

401 West 1i7th Street .

New York, New York 10027.

Attorneys for Center on Social’ —

Welfare Policy and Law *

~

~ Interest of Amitus Curiae ..... 1

» 4

7

. °

Questioris Presented

Statement of the Case = a . 2

ea ae Pe *

ARGUMENT:

I. Severance of family ties because the only’ re-

maining parent is a natural father violates |

equal protection ic “ a 3

Il. The Illinois statute uneonstitutionally violates |

parental Tights .....: - | 4

2

Ii. The Titinois’ statute’s automatic presumption

that a child with a natural father has no ‘parent

is irrational and" illegal - soecnheosl ae eo

3——

ConcLusion ns VER eee Taene 8

TABLE OF AUTHORITIES,

Cases: | . |

Alton v. Alton, 207 F.2d 667 (3rd’Cir. 1953) cele 9

___Armstrorfg v. Manzo, 380 U.S. 545 (1965) ................5; 8, 11

Boddie v. Connecticut, 395 U.S. 974 (1969) 23.4 8>

Boyd v. United States, 116 U.S. 616.(1886) | > &

Carrington v. Rash, 380 U.S. 89 ecco ae

| Commonwealth v. Rozanski, 206 Pa. Super. 397, 213

A.24 155 (1965) i wee <6

PAGE

‘Crane v. Battle 62 Misc.2d 139, 307 N.Y.S.24 335 .

_ (Family Ct., cin hice ; «6

Dandridge v. Williams, 397 U.S. 471 (1970) eh

Engel v. Vitale, 370 U.S, 421 (1962) enetene 28

Farmington v. Tokughige, 273° vs S. 284 (1927 , ee AB

Garfield v. Goldsby, 211 US. 249 (1908) cee 8

Gideon v. Wainwright,°372-U.S. 335 .... | 9

Glona V. American Guarantee, 391 U.S, 72 (1968) ....4,6,7,8

7 Godinez : v. Russo, 266 N. Y.S.2d 636, 49 M.S.2d 66

(1966) - 6

Goldberg v. Kelly, 397 U:S., 254 (1970). ee 1S

Griswold v: Connecticut, 381 U.S. 479 tC) an ~~

ue v. United — 383 U.S. 745 ED) S sescineiieel ae

Baler v. Metropolitan Life Ins: Co., 434. S.W. 2d (s |

(St. Lotiis Court of Apps.. 1969) - 7

Harper v.' Board, 383 U.S. 663 (1966) ....... 8

Hayes v. Strauss, 155 Va. 136, 144 S. Ls 432 (1928) = ones “6

Ly Hernandez v. Texas, 347 U.S. 475 (1954)*.. a g3

In re Adoption of | a. Minor, 155 F. 2d 870 (D. C. oe

- 1946) “eecees ; Ge

In re Brennan, 134 N.W.2d 126 (Minn., 1965) »......... 6.

_ Inre Guardianship of C., 237 A.2d 652, 98 N. J. Super.

474 (1967) 2.:...: 6

In re Hopes Adoption, 30 Wash. 2d 185, ist P. 2a 289

(1948) a | 6

In re Moore’ s Estate, 415 P. 2a 653 (1966) . 6d

. os fee PAGE

Jenkins v. Pye, 37 U.S. 240 (1838) cecccscwewecceencee UW

‘Jones v. Welfare Board, No. 4-68 Civ. 248 (D: Minn.,

yaly ” ek _—— - xX io

we King v. Sith, 392 US. 309 (1968) = eee 1, 7, 8,9

Lebine: ,v. Vincent (O:T. 1970, No. 5257) » —s . 2

- . Levy v. Louisiana, 391 U.S. 68 (1968) 02... ....6,.7; 10

"May v. Anderson, 345 U.S. 528 (1953) cece? 5

_ McLaughlin y. Florida, 379 U.S. 184 *.. | 7, 10

Metropolitan Life Insurance ve ees aee 367 F. ad

791 (38rd Cir., 1966) ....... 6

Meyer v. Nebraska, 262 U.S. 390 (1922) ....... A

Morey. v. Doud, 354 U.S, 457 2... = 7

Munn v. Munn, —— Colo. —, 450 P.2d 68 (1969) ...... 7

Ojeda et al. v. Hackney, Civ. 7-515 (U.S.D:C. ND

Texas, Sept. 4, 1970, —— F. Supp. —— “eee 10

Oyama v. California, 323 U.S. 623 (1948) ... : 7

People v. Ewer, 141 N.Y. 129 (1894) | . +45

People v. Meredith, 69 N.Y.S.2d 462, aff'd 297 | N. > ae

692, 7 N.E.2d 8 (1947) — x 6

Pierce v. ‘Society, of Sisters, 268 U.S. 510 (1925) — - 4

- Prince v. Massachusetts, 321 U. 5. 158 (1944) . eet, ©

_ Reynolds v. Cochran, 365 US. 525 (1961) - 9

Rosado v. Wyman, 397.U.S. 397 (1970) 1.

Rv. R, 431 S.W.2d 152. (Mo. 1968) ...... 7

Sanks v. Gear 395 US. 974 (1969) 2

Schmoll v. Creecy, A- a (Sup. Ct. XN. J., June 26,

1969) eee seoatenee 7

gt?

Shapiro v. Thompson, 394.U.S. 618 (1969) ce 1B

Shelton v. Tucker, 364 U.S..479 (1960) ete 9.

Simmons v. Housing Authority of West Haven, 399 : .

US. 510 (1970) © . a |

Slochower v. Board of Education, 350 U. S> 551 (1955). 9

Sniadach v. Family Finance, 395. U.S..337 (1969) -....... 8 ~

Solmon v. Shapiro, 300 F. Supp. 409 (D.C. Corin. 1969), - +

aff’d, 396 U.S. 5 (1969) a

Speiser v. Randall, 357 US. 513 (1958) . eee 9°

Tot v. U.S, 319 U.S. 463 (1943) Seales ee 9

‘United States v. Carolene Products Co, 304 U.S. 144

a ee

Wade . State, 39 Wash: 2744; 238 P: 2d ‘914 (1951) . “6

— West Virginia Board of Education, v. . Barnette, 319

, U.S- 624 (1942). 4.

Western & A. R. Co. v: Hendereon, 279 U. S. 639 (1929)... g

Wheeler v. Montgomery, 397 U.S. 280 (1970) -......... om 2:

_ Wyman v. Jamés, 397 U.S. 904 (1970) © — a ar

~ Yick Wo v. Hopkins, 118 U.S. 356 (1886) aecccnnenne 8

State Statutes: ) | | |

Ark. Srar., Section 56-106(c), (1947) celeieeccecntecuee 6°.

Inv. Ann. Srat:, Section 3-120 (1946) -....... wee. 6

N.D. Cenz. Cone, Section 14-11-10 (1959)«.. | . 6

Other Aisthovitins >

_ Bowlby, Maternal Care “a Mental Health (1952) en 7 5.

_ Comment, 67.Columbia L. Rev. 984 (1967) ... me, ©

e’

. . i

et eo - ¢. ¢ 28

PAGE - . »

A

Bodé, § “Emotional Trauma Resulting From Tlegiti- -

mate Birth, ”. 54 ARCHIVES OF N: EUROLOGY- AND Psy¥-"

eH1aTRyY 381 (1945) «.........- ! 4,5

| Gray and: Rudovsky, “The Court ideas the

Mllegitimate,” 118 U. Pa. L. Rev. (1969). ..........: * 6

Kahn, “Child Welfare; Trends and Directions,” 41 _

"Child Welfare 459 (1962) - aartenaa ‘ 5

Kestenberg, “Separation from Parents,” J. Nenvous

Cup, 20 (1943) spcocinsa tisdale actansnda tee hesitnansaiiaaonawialds 5

N.Y. Domeszic Retatioys Law, Section 111(3) cities *S

N. Y. - Soctat Services Law, Section, 392 a 6

| { | « | hk

; <-

wR

; $

co &

—

‘a:

° e bd .

i “e

Iw THE

| Supreme Court of the Hnited States.

OctoBER Term, 1970.

No. 5750

—<— : ‘ae

Peter Sraney, Sr.,

Appellant,

: —_—vV.— .

- PEOPLE OF THE STATE or ILLINoIs,

: Respondent.

. BRIEF OF CENTER ON SOCIAL WELFARE POLICY

AND losiabiia AMICUS CURIAE , :

Interest of. Amicus Curiae

>

The Columbia Center on Social Welfare ‘Policy and Law

is funded. by the Office of Economic Opportunity, and 18g -

associated with the Columbia University School of Law. -

‘The Center provides assistance in researth and litigation

for legal services and other attorneys serving the poor. 4

. The Center has appeared before this Court in Goldberg

. v. Kelly, 397 U.S.*254 (1970) ; Rosado v. Wyman, 397 U.S.

397 (1970). and Wyman v. James, 397 U.S. 904 (1970), and

has submitted briefs ayicus curiae in King v. Smith, 392 -

US. 309 (1968) ; Shapgro v. Thompson, 394 U.S. 618 (1969);

Simmons{v. Housing Authority of West Haven, 399 U.S.

510 (1970); Boddée v. Connecticut, 395 U.S. 974 (1969) ;

2

Sanks v. Georgia, 395 U.S. 974 (1969); Wheeler v. Mont-

‘ gomery, 397 U.S. 280 (1970); Dandridge v. Williams, 397

U.S. 471 (1970), and Labine v. Vincent = 1970, No.

' §257).

Ajiproximataly oné-third of the poor are illegitimate and

subjeet to the many social and legal disabilities attendant

on this status.’ This. case challenges the constitutionality

of a state law which denies parental rights to the father of

an illegitimate child, regardless of his fitness to act as a -

father. The Center has a continuing concern with ques-

tions such as are involved here, since the ruling in this ©

case will have a substantial impact, on large numbers of

poor children and their families. '

A parties have consented to the ‘fling of . oni. amicus

brief.

Questions Presented

- 1. Does the denial ‘to the | father of the right to |

custody of his child, based only on his failure to marry

the mother of his child before her death, violate equal

protection and infringe upon constitutionally protected

parental. rights? ;

2. “Does the irrebuttable presumption that a child with only. -*

a natural father surviving has no parent with any rights

violate due process? |

Statement of the Case ,

‘The case is stated “eee in the Petitioner’ S EprICE:

Q :

ai

sification. defies logic 2 ®

— ARGUMENT ,

Severance of. family ties because the only. remaining

parent.is.a natural father violates equal protection.

To define precisely the classes present in this case is’

to demonstrate the utterly irrational classification the Il-

linois statute presents. First, there are two broad cate-

sories—parents who’are married to the other parent and

_ those who are not. These two. categories: are further sub-

divided into men and women. Illinois seizes one of the

four sub-categories: men who. are not married and are |

parents. It then imposes additional questions: (1) Is there

"Sg ‘subsequent marriage with adoption or visitation? (2) Is

there any adoption at all? If the answer to these questions —

is “no,” the statute severs family ties and takes away the

child from the parent. Such action based on such a clas-

. “When the existence of a distinct ‘elise is demonstrated

and it is further shown that the laws, as written or as ap-

plied, single out this class for different treatment, not’

based on.some reasonable justification, the guarantees of

the Constitution -have been violated.”. H ernandez v. Texas, - .

347 U.S. 475, 478 (1954). The distinct class here is singled

out and faced with the forbidden irrational treatment.

It should_be noted that this denial of equal protection

also extends to the illegitimate child. Illegitimate children

are denied a father’s love in cases where legitimate children

would not suffer a similar deprivation despite the fact that

the illegitimate child may have greater need for a paternal .

“4

relationship. See Foder, “ “motional Trauma Resulting |

From Illegitimate Birth,” 54 Archives of Neurology and

‘Psychiatry 381 (1945). This is particularly egregious when

the father, as here, is without a doubt the father and has

‘SO acted for many years."

“There i is no reason to belabor the point. Authorities for

striking down irrational classifications are numerous and

are cited in petitioner’s brief. Any examination of. the clas-

sification reveals its irrationality. © |

Ti.

The Illinois statute anconstitutionally violates paren- —

tal rights.

The Illinois statute arbitrarily denies petitioner the basic

. right of a father to raise his children solely because he had

~ not married the mother of his children i in the 162years they

lived together and raised the children before her death.

He is thereby denied the fundamental right to a family

_ relationship with his children, a right which the Supreme

Court has long recognized and guarded. See Meyer v. —

‘Nebraska, 262 U.S. 390, 399 (1922). As this Court noted

in Prince v. Massachusetts, 321 U.S: 158, 166 (1944): “It

is cardinal with us that the custody, care and nurture-of*

; the child reside first in the parents, whosé primary function

and freedom include pe peralion for obligations the state

-. ¢an neither, supply nor hinder.” See also Pierce v. Society

: of Sisters, 268..U.S. 510 (1925); West Virginia Board of

7 Education v. Barnette, 319 U.S. bite (1942) ; ee

1The classification might’ have some. seievante to asking for

simple presentation of proof of paternity but that is not present

in this ease. Also see Glona v. American, Guarantee, 391 U.S. 72

at 76 (1968). _%

5

v. Zokuspi ige, 273 US. 284 (1927);Engel v. Vitale, 370

us or (1962) ; People v. Ewer, 141 N.Y. 129° (1894).

These custodial rights are “far more precious . . . than

property rights.” May v. -Anderson, .345: U.S. 528, aes

The Constitutional right to a family relationship arises

from a reading of the requirements of the Bill of Rights

together with related principles.’ In this respect it is simi- _

lar to the right to travel (see Guest v. United States, 383

U.S. 745 (1966); Shapiro v. Thompson, 394_U.S. 618 —

(1969)), and the right: to privacy (see Griswold v. Con-

necticut, 381 U.S. 479 (1969) ; il v. United States, 116 =

U.S. 616 (1886) :

«[TJhere is a ‘realm of family life which the state can: —

not enter’ without substantial: justification.” Griswold

vy. Connecticut, supra, at 503. (White, J., concurring.): ”

When the state’s entry into the protected. realm consists

| of permanent destruction_of the family—unit, its justifica- >

tion must be very substantial indeed. Armstrong v. Manzo, —

380 U.S. 545 (1965), is a case almost directly on point.

This Court ‘recognized the father’s rights even against

' the married mother seeking to cement her new family unit

by adoption. This Court held that a full-fledged hearing :

with due process must precede such severance..

‘The state’s action also violently interferes with. the

child’s right. and need to be with his actual parent? “To

*Kesteriberg “Separation from Parents,” J. Nervous CHILD, 20

(1943); Fodor, Emotional Trauma Resulting from Illegitimate :

Birth, 54 ARCHIVES. oF NEUROLOGY AND PSYCHIATRY, 381 (1945) ;

J. Bowlby, Maternal Care and Mental Health (1952) ; Kahn “Child

‘Welfare; Trends and Directions,” 41 Child Welfare 459 (1962).

6

‘the illegitimate child, the father is never putative.”. Com-

monwealth v. Rozanski, 206 Pa. Super. 397, 402, 213 A.2d_

155, 151. (1965). This paramount factor has been recog-

nized by an increasing number of courts who realize that

the “best interests of the child” in many cases will lie

with his natural father.* These children have just lost.

their mother. Illinois now wants to compound their tragedy

by making them lose their father. The children are being

punished for their status of illegitimacy. This Illinois can-

not do. See Glona v. American Guarantee, 391 U.S. 73

(1968) ; Levy v. Louisiana, 391 U.S. 68 (1968). See Gray:

and Rudovsky, The Court Acknowledges. the Illegiti pale

118 U.- Pa. L’ Rev. (1969) ; Comment, 67 Columbia L- .

984 (1967); Metropolitan Life Insurance v. Thompson

367 F. 2d 791 (Srd Cir., 1966). | . WA

: Many courts have held that the natural father has’ a right to

custody of his child, People v. Meredith, 69 N.Y.S.2d 462, aff’d 297

N.Y. 692,77 N.E. 2d 8 (1947) ';. Wade v. State, 39 Wash. 9744, 238

P.2d 914 (1951); Hayes v. Strauss, 155 Va. 136, 144 S.E. 432

(1928) ; In re Guardianship ‘of C., 237 A.2d 652, 98 N.J. Super.

474 (1967); In re Moore’s Estate, 415 P.2d 653 (1966) ; In. re

Brennan, 134 N.W.2d 126 (Minn., 1965); Godinez v. Russo, 266» .

N.Y.8.2d 636, 49 M.S.2d 66 (1966). Cases where the past statu-

tory practice was that the father’s consent is not necessary before «>

placing ‘an illegitimate child: for adoption (e.g., N.Y.° Domestic

- RELATIONS Law Section 111(3) now ef. Section 392 of N.Y. Socrau

Services Law) have been modified by many states when the mother

dies. after consenting. In a number vf instances, courts have held

that the natural father has the right te’revoke the consent, In re

Adoption of a Minor, 155 F.2d 870 (D.C. Cir., 1946) ; In re Hopes

Adoption, 30 Wash.2d 185, 191 P.2d 289 (1948). A number of

state legislatures -have also recognized this right, e.g., ARK. STAT. |

Section 56-106(c) (1947); IND. ANN. Stat. 3-120 (1946) ; N.D.

CENT. Cope Section 14-11-10 (1959):- Also, it is now. ‘generally

accepted that the natural father of an illegitimate child has. reason-

able rights of visitation, Commonwealth v. Rozanski, 206 Pa. Super.

397, 213 A.2d 155 (1965). And recently, it has been held that a

putative father may sue to establish his paternity. Crane v. Battle,

62 Mise.2d 139, 307 N.Y.S.2d 355 (Family Ct., 1970).

we 7

Statutory classifications mtist be justified by. a rational

. relationship to a legitimate state purpose. See, e.g., Car-

rington v. Rash, 380 U.S. 89. “While this Court’ has ap-

plied the test of rationality with some lenience in the area ~

of économie legislation, see, ¢.g., Morey v. Doud, 354 U.S.

457, the Court has been “extremely sensitive when it comes

to basic civil rights. ” Levy v. Louisiana, supra, at 70.

In addition, the Supreme Court. has long held that clas-

sifications involvin or r ancestry are ‘highly suspect.

and | may-only be used if there “clearly appears ., . some

_ ~ overriding statutory purpose.” McLaughlin v: Florida, 379

U.S. 184, 192. See also. Oyama v. California, 323 US. 623

(1948). Discriminations based on status of birth are closely

analogous té those based on racé or ancestry because they

disadvantage members of a minority group subject to sub-.

stantial private discrimination, cf. United States v. Caro-

lene Products Co., 304 U.S. 144, 152- 53, n. 4 (1938), and

because, at least for the child, they are beyond the con-

trol of the indiyfdual. Lew y v. Loutsiana, supra; King v.

Smith, 392 U.S. 309 (1968).

This Court recently applied the vesuirersent « of ration-

ality to strike down discriminations against . both illegiti-

mate children and their mothers in Levy v. Louisiana,

supra, and Glona v. “American Guarantee: & Inability Ins.

Ca., ‘supra.* There is no more justification for the ‘disermmt.

While the Levy and Glona decisions. dealt with the maton

relationship, a number of subsequent cases. have applied the2under- -

lying principle to the relationship between illegitimate children and

their fathers. See Schmoll’ v. Creecy, 54 N.J. 194, 254 A.2d 525

(1969); Jones v. Welfare Board,“No. 4-68 Civ. 248° (D. Minn., ©

temporary restraining order filed J uly 30, 1968); Munn v. M unn,

— Colo. 450 P.2d 68 (1969); Rv. R,- 431 S.W.2d 152,

(Mo. 1968) ; Haley v. Metropolitan’ Life Ins. Co., 434 S.W.2d 7

(St. Louis Court of Apps. 1969); In re Estate ‘of Jensen, 162

N.W.2d 861 oe 1968).

3

5 -

er ae,

8

‘nation practiced here, in whieh basic family Tights are |

denied the father and children, based on the father’s sex

and his marital status. In -Glona, ‘supra, this Court

specifically rejected t the claim that discrimination against

illegitimate mothers would deter the “sin” which leads to

illegitimacy. 391 U.S. at 75. See, in general, King v.

“ Smith, supra. A legislative intent to deter would even be

less reasonable here. °

\_ The Illinois statute cannot. be justified as a " device to.

/ . . eneourage’ marriage and the legitimization of children,

since there is no way to marry a dead person. No more |

rational is the suggestion by Illinois that denying the —

natural father custody rights is permissible as a means of. |

encouraging the natural father to adopt the child.’ To deny

the natural father-custody of a child in order-to encourage

© him to go through difficult procedures. fo get custody is

_ Constitutionally impermissible. First, it deprives the par-

ent of the child without a, prior hearing. See Goldberg vo."

Kelly, 397 U.S. 254 (1970) ; Sniadach v. Family Finance,

-395 U.S. 337 (1969). Second, - it shifts the burden of

proof to the father to prove fitrfess rather than requiring - .

the’ state to prove unfitness. as the justification. for sever-

ing family ties. Armstrong v. Manzo, supra. Garfield v.

Goldsby, 211 U.S. 249 (1908) held that you could not make

aman shoulder the burden of going to Court to get his

. citizenship. Putting the burden of proving fitness on the

father is equally impermissible. Such a process particu-

larly penalizes the poor.. Cf. Boddie v. Connecticut, ——

U.S. —— (1971); Harper v. Board; 383 U.S. 663 (1966) ;-

- Yick Wo v. Hopkins, 118 U.S. 356 (1886). Even if the

i<)

Nor is adoption proceeding a way to find proof of paternity.

It merely measures interest of a sort, at best.

>

x

9.

parent knew of the availability of adoption he would need

counsel and counsel is not automatically provided when

_ courts sever parental ties. See Gideon v. Wainwright,

- 372 U.S. 335; Reynolds. v. Cochran, 365 U.S. 525 (1961),

‘dt 532-3. While encouraging adaption may be a legitimate

government -purpose, that purpose cannot be pursued by

~ means that broadly infringe’ upon basic rights, wif€n there

are available less drastic means for achieving the same

ends. Shelion v. Tucker, 364 U.S. 479 Acecaes - ag

| Il.

The Illinois statutes. automatic presumption that a

child with a natural father has no parent is irrational |

and illegal.

Y

Ps .

The effect of the Illinois statutory sections read | to- J

gether is-to create an irrebuttable presumption which is‘ir-

rational: From the fact that the father of the child did __

not marry the mother before the mother’s death, it’is con-

clusively presumed that the child is dependent “without |

a parent, guardian, or legal custodian,” and that a Court _

must put the child in-the care and custody of-a person .

whom it deems “a fit” custodian. This application of an

invalid presumption. constitutes a denial of due process.

i}

An irrational presumption cannot meet due process re-

- quirements. Tot v. U. S., 319 US. 463 (1943); Western

& A. R, Co. v. Henderson, 279 U.S. 639 (1929); Alton v.

Alton, 207 F.2d 667 (3rd Cir. 1953) ; Leary v. U. S., 395 U.S.

6 (1969). This requirement applies to civil cases. Speiser

v. Randall, 357 U.S. 513 (1958); Solmon v. Shapiro, 300

. F. Supp. 409°(D.C. Conn. 1969), aff’d, 396 U.S. 5 (1969);

\Slochower v. Board. of Education, 350 . pee 551 =

Smith v. Ki ing, supra. .

a J

Pe,

, 10

In a case involving the conclusive presumption ‘of sup-

‘port contributions from a non-adopting step-father,.a Fed- .

eral District Court held:

I consider that (the presumption) violates plain-

tiffs? rights under the Due’ Process clause of the Four- —

teenth Amendment. ‘The mere fact that there is a

step- father living with the family causes Defendant to

terminate benefits to children. otherwise eligible, There

s is no consideration of the needs of the child nor is .

there a determinatign of the actual availability of the

income . . .”.Ojeda.et al. vy. Hackney, Civ. 7-515

: (WU. S.D.C. ND Texas, Sept. 4, 1970, —— F. -Supp. ——. -

In the case at bar, petitioner” eared for and raised his

child for-all but a brief period...Yerlived with the child’s. -

mother many years. It is now impossible to marry the

.méther. Yet the Illinois statute forbids a Court'to evaluate

any of these, factors. From the failure to. marry is in-

- ferred the dependency, 1.€. " is inferred the -unfitness - of

_ the father. And the effect is to deprive. the child of its’ —

natural father: “Why should ‘the illegitimate child be de-

nied rjghts merely because of his birth out of wedlock?” :

Levy v. Louisiana, 391: U. 5. 68 (1968), at 71.

Nor does the public policy of” enéouraging parents to

7 marry or to discourage illicit sexual practices in any way

justify this irrational presumption. This Court has ex-

_ plicitly rejected the notion that “... since the legislature

is dealing with ‘sin’; it can deal with it selectively and is

not compelled to adept comprehensive or even ‘consistent

: measures.” McLaughlin v. Florida, 379 U.S. ‘184, 191,

Like the presumption of fraud in conveyances toa par-

ent, the presumption of .a father’ s unfitness assumes “a

(6) s * \

we

é “~h

- 2 7

wt _ » @

at :

paca at war with all filial as well as pateuial duty _

and affection.” Jenkins v. Pi ye, 37 U.S. 240, 253 (1838).

. “Whereas’ the ‘presumption ought to be, in the absence

. of all proof tending to a. contrary conclusion, that the ad- |

vancemént of the interest of the child was the object in |

view.’ ” Id. = a8 : I

‘Armstrong -v. Manzo, supra, “held that you. could not ‘7

. presume a man did not care for his children and have’ *

them adopted away—here the state presumes the man’ r

eannot care for the children and severs the Telationship /

without a hearing. The presumption against parents such

as the appellant in fhis case is unconstitutional.

N . . ; ° as . if :

| _ CONCLUSION | ?

_For the reasons stated above, the decision of the court

below should. be reversed. | . :

"at, Respectfully submitted, As :

| Jowatizan WEISS:

* KE. Jupson JENNINGS |

6 Tosy GoLick |

Center on Social Welfare.

ot Policy-and Law . .

er, 7 . 401 West 117th Street a

+ New .York,-New York 10027 a a

3

ne