Opinion — Stanley v. Illinois

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ee

STANLEY. ILLINOIS. = i AS

7 | STANLEY ». ILLINOIS |

~ CuRTToRaRt TO THE SUPREME COURT OF ILLINOIS

No. 70-6014. Argued October 19, 1971—Decided April 3, 1972.

'~ Petitioner, an unwed father whose children, on the mother’s death,

. were declared state wards and placed in guardianship, attacked —

the Illinois statutory scheme as violative of | i

Under’ that scheme the children of unm; 8;

_: death of the mother, are decla endents without any hearing

- on parental without. proof of neglect, though. such

i proof are required before the State assumes custody

i. “of children of married or divorced parents and unmarried mothers.

The Illinois Supreme Court, * holding that petitioner could properly -

be separated from his children upon mere proof that he and the

dead mother had not been’ married and that petitioner's fitness

as a father was irrelevant, rejected petitioner's claim. Held:.

L Under the Due Process Clause of the Fourteenth Amendment ¥

_ petitioner was entitled to. hearing on his fitness as a parent

before his children were taken from him. Pp. 647-658,

_| (a) The fact that petitioner.,can ply. for adoption or for

"castor and tontrol of his ciltren doe bar his tiack on the .

dependency proceeding. Pp. 647-649. FOND *

(Gj lid State cmansl ddnsieteintly With Wile ‘iedeedd‘seqhire.

ments, merely presume that unmarried fathers in general and

petitioner im particular are unsuitable and neglectful parents. ,

Parental unfitness must be established on the bagis of individual- edi

ized proof.. See Bell v. Burson, 402 U8. 535. Pp. 649-658.

2)‘The denial to unwed fathers of the hearing om fitness accanded °

"to all other parents whose custody of their children is challenged Be

Oe ae re te eS eee

P. 658. -

| A TL a sh 8 N. E24 814, revered sod remanded. Ts

Wszies,), dlivered the tinicn of ‘the Gourt; fo. whieks Brac,

Srewart, and MarsHaw, JJ., ere ae Na ee Le =

and If) Dovazas, J., jomed. Burcer,.C. J., a dissenting opin-

+ ion, in ‘which Buacxuun, J.; joined, post, ‘p.-659. Powsi. and

Reunouist, JJ., Seok 20 part ip tie cemnidieesion ot Shean, of

the case.

> > 3

rr -

66 .° _—- OGTOBER TERM, 1971

| __ Opinion of the Court 4050.8. |

Patrick - Murphy. argued. the © cause and filed a brief -

for petitioner, rae :

Morton E. Friedman, Aecipaaa ‘abteriae General of

Illinois, argued. the cause for respondent. With him on

the: brief were William J. Scott; Attorney General, and

_ Joel M, Flaum, First Assistant Attorney General.

- Jonathan Weiss and E. Judson Jennings filed a brief

. for the Center on Social Welfare | Peper and Law. as

‘amicus curiae urging reversal.

‘Calvin Sawyler and Richard L. Mandel filed brief .

for the Child Care seca of Illinois, Inc., as amicus —

curiae, ,

Mr. J USTICE WHITE delivered the opinion a the Court.

_ Joan Stanley lived with Peter S ey ‘intermittently

for 18 years during which time they ‘three children.’.

When Joan Stanley died, Peter Stanley lost not- only her.

_ but also his clifidren. . Under Illinois law the'children of —

- ‘unwed fathers become wards of the State upon the death

oe of the mother. Accordingly; upon Joan Stanley’s death, -

in a dependency proceeding? instituted by the State of °

’ Illinois, Stanley’s children* were declared wards of the -

State and placed with court-appointed guardians. Stan-

ley appealed, claiming that he had never been shown to

be an unfit parent and that since married fathers and un-

wed mothers could not ‘be deprived of their children with-

- gut: sueh a, showing, he had been deprived of the equal a

protection of ‘the laws guaranteed him by the Fourteenth

Amendment. The Hlinois Supreme Court: accepted: the _

fact that Stanley’s own unfitness had not been established

but rejected "the ‘equal protection claim, holding ' that

Stanley could properly be from. bis¢hiidren

S be cea ck-tha ainale fanktint be the dead mother

Bap amar pee waging ROME, App. 22.

'. *Only two children are involved in this litigation.

ieee 3 x 2.

\

————— +

2d'814,(1970). CAV aE UME 3,

_ ~~ Stanley. presses his eqyal protection claim here, ‘The

State continues to respond: that unwed fathers are pre-,

_ sumed unfit to raise their children and that it is:un-

STANLEY ILLINOIS se

7 . Opinion of the Court _

had not been married. | Stanley’s actual fitness asa father

was irrelevant. In re Stanley, 45 Hl. 2d 132, 256 N. E.

necessary to hold individualized hearings to determine

whether particular fathers are in fact unfit paretits ‘be-

_ fore they are separated from their children. “We granted -

certiorari, 400 U. S.:1020 (1971); to determine whether

married fathers—whether. divorced, widowed, or sepa-

rated—and mothers—even if unwed—the benefit of the

Presumption that they are fit to raise their children: —

JI

At the outset we reject ‘any. suggestion that’we need -

not consider the propriety of the dependericy proceed: _

_ing that separated ‘the Stanleys because Stanley might —

be able to regain custody of his children a8 @ guardian or

- through ‘adoption proceedings The suggestion is’ that.

if Stanley has been treated differently from other patents,

__ the difference 'is immaterial and not legally cognizable

"this method of procedure by presumption could: be ‘al: _

lowed to stand’ in light of the fact that Illinois allows. -

for the purposes of the: Fourteenth Amendment. “This

Court has not, however, embraced the general proposition

_|_ that & wrong ‘may be done if it can be undone. Cf:

Sniadach »:v; Family #¥inance Corp,,; 395) U8: 337

(1969).° Surely\in the case: before us’ if there is delay

between the doing and the undoing, petitioner suffers from

the ‘deprivation ‘of ‘his‘children and the’ children, suffer

f : , tion. he; ‘ » Src

|

Means at hand promptly to erase .the adverse conise-

' quences of the proceeding ‘in the.\course of which his

children’ were ‘declared ‘wards’ of the ‘State. It is first

ae a :

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ap ae

-ocronmn ‘tama, 1971

?

Opinion of the Cour Meh 050.8. |

erged tht Gtelifey: Giuld“aot'to adopt hie chikdnet: But.

| Under Minois law, Stariley is (reated not asa parent but

_ a8 & stranger to his children; and the deperidency: pro-

ceeding has gone forward on the-presumption that he is

proceedings. — It. would ‘be“his,.burden to establish not -

only, that -he;would be.a‘suitable parent but also that he

‘ would be the most.suitable of all who might want custody

of, the children. ; Neither can we:ignore that)in the. pro-

cnecinen: fpr apie thle, seseon Aenea ‘the “proba- -

tion officer,” see. App. 17, the assistant state’s attorney, _

pa ORL Ye hey peo Rll

see id,| at.16-18; 23, made -it appareps that Stanley, un- *

married and impeeunious ashe is, could: not now. expect

to profit from adoption proceedings.’ _ The Illinois‘ Su-

Gon, i “oustady...and. control?the. second «roirte 0

whith, itis. aged, -he: might: regain. authority for his. ©

children... Passing: the obvious issue whether it would

or -rurdensome for an.unmarried father~with-

‘aiid alftady. once presumed. unfit—to petition

-. for: euatody,, this, suggestion overlooks the fact’.that

legal custody .is. not parenthood: or :adoption.. A per:

9m, appointed, ;guardian inanaction for custody and

Si coptrol ie gubjeet to removal-at any time without such

TA TOPS I IAT, SS ot Deano aA® nvr

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sists zi ar «tt 2 eo Suey cov esp

sare, biter the, hee, today." suaaechmradmaie a

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: : STANERY ».iuathom

ok ae Opinion’ of the Coit =

~~ .

catise‘as must be: shown iit's neglect ptocteditig agaiinit

| @ parent. - Hl. Rev. ‘Stat.,:c.; 37, '§: 705-8; He: may: not

take:the children” out'of: the jurisdistion withoutthe .

court's approval; ‘He. may be required:to teport to ithe

ior Sats Canteen ‘Hl. 3

7 - from “‘oustody and’ con--

Breer tard

Rev, Stat, es Le Ab me wh

were & mere. step

r still be to leave him seriously. preju

reason of. his. status,

We must therefore examine the question on that’ Tlinoie Lino

will bayer sro le a remoapion het ee

guishes and burdens all unwed : constitutionally

was eqring on his fitness

Seti ine We. prenaale S 08 a.matter, of “due .proc- :

oo 60 ~—/-Ss OCTOBER TERM; 1971

"pee Pe ken Opinion of the Court 405 U.S.

on the theory that an’ unwed father is not nittpenent

' whose existing’ relationship with his children must be

considered.‘ “Parents,” says: the’ State, “means the

.. father and mother of a legitimate child, or the survivor

of them, or the natural mother of an illegitimate child;

and includes any adoptive parent,” Ill. Rev. Stat., c. 37, —

§ 701-14, ut the term does not include unwed fathers.

. Under ois law, therefore, ‘while the children of all

parents can be taken’ from them in neglect proceedings,

\ .

that is only after notice, hearing, and proof of such un-

fitness #8 a parent as, amounts to neglecty an unwed

father is uniquely subject to the more simplistic de .

pendency proceeding: By use of this procéeding, the

State, on showing that the father was not married to the

mother, need: not’ proge unfitness in fact, because it is

‘presumed ‘at law.

parental qualification i is avoided as “irrelevant. wid

In considering this procedure. under the Due Process

Clause, we recognize, as we have in other. cases, that due

process of law does not réquire ‘a hearing “in: every con-

-ceivable case of government impairment of private

interest.”" Cafeteria Workers v. McElroy; 367 U. 8. 886,

- $94 (1961). That case explained that “[t]he very nature

: of due process: negates any cdritept of inflexible’ pro-

cedures universally applicable to every imaginable. situ-

ation” and firmly established that “what procedures due

_ process may require under any given set of circumstances

niget begin with a determination of the precise nature of

‘thé government fiinction ifivolved as well as of the

private interest that has been affected by governmental

| ven Wile ofiing 64 Naber Hhi’ “Ng pari ei ‘Brate

“ doesnot deny that Stanbey hat gpetial interest itt the’ otiteome of

or

us, the unwéd father’s claim of

sctibi.” Ids at: 805; Goldberg. Kelly, 207 U. 8. 4

263:(1970). 86 2

‘The-private interest here, that he ened the

he has sired and raised, undeniably warrants -

and, absent a powerful countervailing interest, protec-

tion. It is plain that the interest of a ‘parent in the

companionship, care, custody, and management of his

~ or her children “come[s] to this Court with a momentum

‘for respect lacking when appeal is made to liberties which

derive merely from shifting ‘ economic arrangements.”

. Kovacs v. Cooper, 336 Uz S. 77; 95 (1949) Peer

_ J., coneurring).*

- The Court has frequently emphasized the importance

of-the family. The righta,to ponceive and to raise one’s

children have been deemed “essential,” Meyer v. Ne- —

braska, 262 U. 8, 390, 399 (1923), “basic civil rights of

man,” Skinner v. Oklahoma; y U. 8. 535, 541 (1942),

cn “Cr ights far more precious .). . than property rights,”

May v.- Anderson, 345 U.S, 528\533 (1953). “It is car-

dina] with us that the custody, care and nurture of the.

child reside, first. in the parents, whose primary function

and freedom include preperation for obligations the state

can neither supply nor hinder.”,.. Prince v. Massachusetts,

321 U. S. 158, 166 (1944). ‘The integrity of the family

unit has found. protection i in. the Due. Process Clause of

_ the Fourteenth Amendment, Meyer v. Nebraska, supra, ©

at 399, the Equal Protection Clause of the Fourteenth

Amendment, Skinner v. Oklahoma, supra, at 541, and the

Ninth: Amendment, Griswold v. Connecticut, 3810.8.

479, 406 (1985) (Goldberg, J., concurring).

; “Nor has the law refused to, recognize those family re-

PNOe rE Ra iy cen ola ay Ne A The

ce WN nee ae ee

ing-natural, but: gi », children a ¥ “on

action for" ‘the death i their mother, empha

652 : | OCTOBER TERM, 1071 |

"Opinion of the Court 405 U.S. .

wack children cartnot be denied the right of aber children

because familial bonds in such cases were often as warm, .

enduring, and important as those arising within a more .

formally organized family-unit. Levy v. Louisiana, 301

~ U.L.S. 68, 71-72. (1968). . “To say: that: the test of equal

protection should be the. ‘legal’ rather than the biological —

relationship is to avoid the issue. For .the Equal Pro-

tection Clause necessarily limits the authority of a State

to draw such ‘legal lines as it chooses,” Glona v. Amer-

ican Guarantee Co., 391. U. S. 73, 75-76: (1968).

These authorities make it clear that, at the least; ”

Stanley’s interest in retaining custody of his children i is

cognizable and substantial. .

For its part, the State has made ite. interest quite 4

_ plain: Tilinois has declared that the aim of the Juvenile’

Court Act is to protect “the moral, emotional, mental,

and physical welfare of the minor and the best interests

-of the community” and to “strengthen the minor’s

family ties whenever possible, removing him from the

custody of his parents only when his welfare or safety

or the protection of the public carinot be adequately safe-

* ‘guarded without Temoval . ..” Ti, Rev. Stat., c. 37,

§ 701-2. These are logitiniat interests well ‘within

the power of the State to imp] t. We do not ques-

tion the assertion, that neglectful parents may be sepa-

rated from their children,

But we ate here not asked to'evaluate the legitimacy

. Of the state. ends, but, rather,.to determine whether the’

Means used to achieve these ends are constitutionally

defensible. What is the state interest. in separating

children from fathers without a hearing designed to de-

terminé ‘whether the father is unfit in a particular dis-

puted case? We observe that the State registers no gain

towards its declared" goals: when it separates |

a precierisemnrtn peta ca Inde Stnkey i

= .

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ae

STANLEY v. ILLINOIS as

- 645. Opinion of the Court |

fit father, the State spites its own articulated goals when

it needlessly separates him from his family. |

In Bell v. Burson, U. S. 535 (1971), we founda

_ scheme repugnant to the Due Process Clause because it

‘very factor (there fault in driving, here fitness as a

parent) that the State itself deemed fundamental ‘ to

‘its statutory scheme. Illinois would ‘avoid the self-con-

‘system invalid by arguing that Stanley and all other

‘unmarried fathers can reasonably be presumed ti’ be _

unqualified to raise ‘their children® = =

x

* linois says im its brief, of 21-23. -

“the best imterests of the child are served by such intervention. © —

best interests of a particular group of children necessitates some gov-

a) OCTOBER. TERM, 1971

Opinion of the Court | 405 U.8..

It may be, as.the State insists, that. most. unniarried

fathers are unsuitable and neglectful ‘parents. It may-

also be that Stanley is'such a} t and that his children

should be placed in other .. But alf unmarried _

fathers are not in this category; some are, wholly suited -

to have custody of their: ohalerent. » This much the State -

- of the normal thispecusiticeies cobble to the classification of fathers

who are not married to the mothers of their children.” |

See also [Iilinois’ Brief -23° (‘The . comparison ‘of married and -

.. putative fathers involves exclusively factual differences. The most

Significant of these are the pfesence or absence.of the ‘father from .

tle home on a day-to-day basis and the responsibility imposed upon

the relationship”), id., at 24 (to the same effect), id., at 31 (quoted

below ’in n..6);, id.; at 24-26 (physiological and oth he? Studies are cited

in support of the proposition that men are not naturally inclined to -

childrearing), and Tr. of Oral Arg. 31 (“We submit ‘that: both

based on historyor [sic] -culture the very real differences’. . . be-

tween the married father and the unmarried father, inv termns of thelt

interests in children and their legal responsibility for their children,

of protecting children ... .”): . |

tiie Bano eneshesat "he-gunireb bibiaating ah adiahdten hei

_ in their illegitimate children” (Brief 8)'and opines “In most in-

stances, the natural father is stringer to his children.” Brief 31.

? See In re Mark T., 8 Mich. App. 122/154 N. W. 2d 27 (1967).

There a panel of. the Court of Appeals’ in unanimously

‘ affirming a circuit court determination that the father of an

illegitimate son was ‘best. suited to raise the boy, said

“The appellants’ presentation im hla ciniaryeeneih ett abesieg

tion. that. placing | ‘Mark: for adoption’ is inherently’ preferable to

‘Fearing by<iis father, that uprooting, him: from: the ‘family which

he knew from birth until he was‘a' year and a’ half old, séctetly

- _ justitutionalising him.and iater transferring hint to ‘strangers is s0_

incontrovertibly better that no'court has the powéreven to consider

the matter. Lehner -e us labaeiam se rpainth peepee |

fathér who was'at one time married to his mother, or that the

; \e "Opinion of thie Court |

readily edncedes, and nothing in. this record indieates that “

Stanley. is or has.been.a neglectful father who-has not

cared for his children. Given the opportunity te make.

his case, Stanley. may have been seen to be deserving of |

Custody of his offspring. Had this been so, the State’s.

Statutory. policy, would have been.furthered by leaving

¢ . custody in him,, |

| A aaah

. .Carrington v, Rash, 380 U.S. 89 (1965), dealt with a. .

. similar Situation. There _we-recognized that: Texas had

& powerful. interest in. restricting. its electorate to bona

fide residents. - It was not: disputed , that most service-

men stationed in Texas had no intention of ;

in the State; most. therefore could be deprived of a. vote

in state afiaice: But we refused to tolerate.a blanket

exclusion depriving.all servicemen of the vote, wheh some

- Servicemen Clearly were bona fide, residents and when :

“more. precise tests,” id., at 95, were available to. dis-

_ tinguish members of this latter group... “By. forbidding

& soldier ever to .controvert the. Presumption of non-

reside .” ad, at 96, the State, we said, inj ;

substantial deprivation. It viewed people . one-

ne ap. stopenoen) when. a. finér perception.

me reatity Le tae 2 SMETS LE BRINE BieecyiRS-

man’s claim to residency on an in lividualized basis. —

“We recognize ‘thiat special problettis:may be in--

. volved“ in. determining whether. servicemen have |

2 actually. acquired a new domicile ina State for fran- a

- . Chise.. purposes, ‘We: emphasize that Texas: is-free:

Pavenpiqnir tenner nee pair a

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656 | OCTOBER TERM, 1971

= © Opinion of the Court M8 0.8.

‘ETJhe presumption here created is .-. . definitely

. conclusiye—ineapable of being a al eh proof of

‘the most positive character.’ ” Id., at 96. :

“AN servicemen not residents of Texas before induction,” .

we concluded, “come within the Provision’s sweep, Not

'.one of them can ever vote in Texas, no matter” what ~

their individual qualifications. Ibid. We found such

a@ situation. repugnant to the Equal Protection Clause. ~

- Despite Bell and Carrington, it may be argued that

unmarried fathers are so seldom fit that Tllinois need hot

undergo the administrative inconvenience of inquiry in .

any case) including Stanley’s. ‘The establishment of.

prompt efficacious procedures to achiieve legitimate state: -

ends is a proper state interest worthy of cognizance in

constitutional adjudication. But the Constitution recog-

nizes higher values than speed and efficiency.’ Indeed,

one might fairly say of the Bill of Rights in general,

“and the Due Process Clause in particular, that they

were designed to protect the fragile values of a vulnerable —

citizenry from the overbearing concern for efficiency and

efficacy that may characterize praiseworthy government —

officials no less, and perhaps more, thati mediocre ties.

sisi by” ao cr meapen is One cheaper and easier

STANLEY». ILLINOIS ~ 657

645 | Op as ‘of the Cout

than individualized determination, » But when, as here,

* the procedure forecloses the determinative issues of com.

petence and care, when it explicitly: disdains present.

“realities ‘in deference to’ past formalities, it needlessly

Tisks running roughshod over the important interests of

* both. parent and child. It ther@fre cannot stand*>- __

_ Bell v. Burson’ held that the State could not, while _

purporting to be concerned with fault in suspending a —

driver’s license, deprive a citizen of his license without a

hearing that would. assess fault. Absent fault, the

State’s declared interest was so attenuated that adminis-

before licenses were suspended. she te!

We think the Due Process Clause mandates a similar

result here, -The State's interest in-caring for Stanley’s

658. . . | OCTOBER TERM, 1971 ene

¢ Opinion'of'the Court . «405.8.

father. It insists‘ on presuming rather..than proving

Stanley’s unfitness solely because it is more convenient

to presume than to prove. Under the Due

- Qlause that advantage is insufficient to. justify

a father a hearing when the ievue at stake in the dis

Rae pe carT INNER hligp, Deas tneteq ge

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a TEL... .-.

/ ‘The State-of Illinois assumes custody: of the children of

/- married parents, divorced parents, and unmarried mothers

only after a hearing and proof of neglect.. The children

of ammarried fathers, however, are declared dependent

children without a hearing on parental fitness and with-

out proof of neglect. Stanley’s claim in the state eourts

* Boman 6.5, dimen

ithe alt sf cup Sapreina! Chiat: li dllincincio ste

amie ied ew eae incerenensien ste Siti saiic ioe ee?

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“Te tao orderd

Mg. Seton POWELL wat Mr. : Senvivs Renee

took no part'in the consideration or decision of this case.

Ma. dusrice Dovatas joins in Parte I and 1 of this

opinion. _ iy Ht | | tet i

. “Ma, Cammy Jusnca Busan, with whom Ma. Joercs

BuLAcKMUN concurs, dissenting, =... -

The only constitutions Sane chdeed ssid decided in the

courts of Illinois in this case was whether the Illinois .

statute that omits unwed. fathers from, the definition of

foc its” violates the _ Equal: Protection Clause. | We

certiorari to ee whether the Illinois Su-

rr eon bGird Taviaty reashvell wa acted tobhnteam tapes

when it unanimously upheld the statute against petitioner

_ Stanley’s attack: .

cies peers pre es el eee ee: 2

SE te

Burazr, C. J,, dissenting “405 U.8.

af evidence seized in- that search, should have been ex-

cluded on Fifth Amendment grounds as well. Mr. Jus-

vice Wuzrs, in his opinion for the Court, concluded that . :

we lacked jurisdiction to consider the Fifth Amendment

. eolitention:

“Counsel for [the petitioner}! conceded at oral argu-

ment that the Fifth Amendment issue was not raised

at trial. ‘Nor was the issue- raised, briefed, or reve

~ in the California appellate courts. [Footnote omi

ted.] . ite sittidios Sgoahletal Uhahdentaeaeusee

In this posture of the. case, the question; although

"briefed and argued here, i 18 not properly before us.”

401 :;U. S., at 805. |

“In n' the é tase now before us, it iiply deg Wk suffice -

to’ say, as the Court ina footnote does say, that “we dis-

‘pose’ of the case oii the coristititional premise raised be-

_ low, reaching the result by a '‘nietliod of analysis readily .

_ evailable'to the stite court” “Alte, at 658 n. 10.” The

* out ito fanaa sty to ignore the sritare 4

of Justices ‘Dovatis’ and Wurrs, but ‘the “analysis.

lear: the Court holds sua sponte that thé Dus Process

es that Stanley , the tinwed biological father,

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1 slNot ey sition hve okay eadlay ded eee

in dealing. with limitations upon its jurisdiction, it pro-

ceeds as well to strike down thé Illinois statute here in-

pei “answering” arguments that are nowhere to

be found in the record or.in the State’s brief-orindéeed

_ in the oral-argument.. I have been unable, for example,

to discover where or when the State has ‘advanced’ any

- argument that “it is unnecessary to hold individualized

h.arings to determine whether particular fathers are in.

children,” : Ante, at 647. ‘Nor can‘ discover where the

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Dounem,'C. J, dimenting 050.8

“-Albof thoss:peteons in Minnis who'may have followed

_ the progressof this case will, expect, expérience no little <

_. gurprise st: the ~Coutt’s: opinion ‘handed’ down'today:

‘Stanley will undoubtedly be surprised ‘to find that he has |

prevailed on an issue never advaneed by him.’ The judges

_ whordealt with:this ease in the ‘state courts:will be sur-

"prised to find.their decisions overturned en a ground they

never. considered. And the legislators and other officials

—_ of the State of-Illinois, ag well as those.attorneys of the -

~ State who are familiar withthe statutory provisions here

at issue, will be surprised to learn for the first time that

-the Illinois Juvenile Court.Act establishes-a presumption

that‘\unwed fathers are. unfit. ‘I must confess: my own

‘inability to find any such presumption in the Illinois Act.

_ Furthermore, from the record of the proceedings in the

\ | Juvenile: Court of Cook County: in ‘this case, I can only

iN conclude tliat the judge of that court was unaware of any »

such presumption, for he clearly indicated that Stanley’s

Ss ‘asserted fatherhood éf the children would stand him in -

_— good stead, rather than prejudice him, in any adoption or

Bw proeeetiny. In‘short, far from any inti-

sails iia St i oscar ae eal anata

of {the child], and since- necessarily the female is

| mother, rather than the unwed father,

m Saale px tod thet, Kieu Bs had saprowed an Inter

B55 oq: |” Runammy iC, J, dimemting |

Piaved the children in the care of Mr. and Mrs. Ness, who took the

children into their home. The record is silent as to whether the

Ness household was an’ approved foster home. Through Stanley's

act, then, the Nesses were. already the actwal custodians of the

children. At the dependency proceeding, he resisted only the court's

"obtained: the Nesses would have continued to play’ the role of a

‘arrangement, and there would still have been no. living adult with |

, any legally enforceable obligation for the care and support of the’.

infant children, | 2

ae "ney, 9 inn: OT

ange vents: IBindia tviernciy rhengndldidensinislane-ines-

riages since 1905. AL. Rev, Stat. c; 80,$4. Stanley did .

‘oatignah the:hiusdobe. wleen ‘he: ssubl:tave ftetly:ommumed

- them.

“(Where there:is 4 valid contract of: warring the law oe

. of Hlinois. presumes that the husband is the father of

- any. child: born to the wife during the marriage; as the

father; he has legally enforceable rights and duties with

respect ¢o that child: When a child is born to an un-

married woman, Illinois recognizes the readily identifiable

mother, but makes no presumption as to the identity of

the biological father.. It ‘does, ‘however, provide two

_ ways; one voluritary and one involuntary, in which that

father may be identified. ‘First, he may marry the mother

sneer ee eh POS Nee ee

offices of legitimating the child and gaining for the fnther

. full recognition as a parent. Ill. Rev. Stat., c. 3,'§ 12-8.

' Second; Reon ee ter ti ance caateiaiod ot taints

of the child pursuant-to a paternity suit initiated bythe

mother ; in this case, the child remains ‘illegitimate, but

‘the ‘adjudicated father is made liable for the support of

. the child until the. latter attains age 18 or is legally

- adopted by another.: Ill. Rev. Stat., c. 106%, §52

: Stanley argued before. the Supreme Court of Illinois

that the definition of ;‘parents,” set out in Ill. Rev. Stat.,

c..37, § 701-14, as including “the father and mother of

a legitimate child, or the survivor of them, or the natural

mother of an illegitimate child, [or] . . . any adoptive

parent,” * violates the Equal Protection Clause in that it

eee ae tee es

ce — as ‘Boma, C. J, dimenting ae

ment. when he brought the case here; he argued before

' . this Court that Illinois is not permitted by the Equal .

statutory definition of legal “parenta” = °

: welfare; and, of course, many unwed fathers are simply

not aware of their parenthood. ab EASY.

- Furthermore, I believe that a State is fully justified

in concluding, on the basis of common human experience,

nursing an infant creates stronger bonds between her and

the child than the bonds resulting from the male’s often

_Servable fact that most unwed mothers exhibit a concern

for their offspring either. permanently or at least until

- 668, OCTOBER TERM, 1971 3

Boname, C.J. disenting §«§»-»» 4050.8.

- they are safely: placed for adoption, while unwed fathers ..

rarely burden either the mother or the child with their

attentions or loyalties.; Centuries of human experience

buttress, this view:of the realities of human conditions

and suggest that.unwed mothers of illegitimate children

are generally more dependable protectors of their children

. than are unwed fathers. While these, ‘like ‘most gen-.

-eralizations, are. not, without exceptions, they neverthe-

less provide a.sufficient basis to sustain a: statutory classi-

fication whose objective is not.to penalize unwed parents -

-. but to further.the welfare of illegitimate children in'ful-

fillment:of the State’s. obligations as parens patriae. .

'- Stanley. depicts himself as a somewhat unusual unwed

father, namely,.as one who has always acknowledged and

never doubted his fatherhood of these children. He: al-

leges that-he loved, eared for, and supported these chil-

dren from the time of their birth until the death of .

their mother. He contends that he consequently: must

be treated the same as a married father of legitimate 7

children. Even assuming the truth of Stanley's allega-

tions, I: am. unable to construe the Equal Protection

Clause as-requiring Illinois to tailor its statutory defini-

tion of “parents”..so meticulously as to include such’ ©

unusual unwed fathers, while at the same time excluding

those unwed, and generally unideritified, biological fathers

who inno. way: share Stanley's professed: desires. :

“When the marriage between the parents of a legitimate child is

_ dissolved” by divorce or separation, the State, of course, normally

"awards custody of the child to one parent or the other, This is con-:

sidered. necessary for the child’s welfare, since the parents are no

longer ‘legally bound together, The urimarried parents of an illegiti-

mate’ child are likewise not legally bound together. Thus, even. if

Iitinois did recognise the parenthood of both the mother and father

of ‘an illegitimate child, it would, for consistency with its practice

‘in divorce proceedings, be called upon to award custody to one or

the other of them; Hein. Sa oy seme ane Sappetdined

the identity of the father. :

STANLEY ».(1ZINOIS- BT

645 Buna, C.J, dianenting

_ Indeed, the nature of Stanley's own desires islJessthan _

» absolutely clear. from therecord in-this case: Shortly

t

‘children over to the care of a-Mriand Mrs. Nees; he -

- took no action to gain recognition of himself asa father,

through adoption, or as a legal custodian, through 'a

guardianship proceeding. Eventually it.carne tothe at-

‘tention:of the State that there’ was no living adult ‘who

had any legally enforceable obligation for the care and

support of the children; it was only then thatthe :de-

pendency proceeding here under review took 'place and

that Stanley made himself known to the juvenile court

"” in connection with.these two children.’ Even then, how-

‘- ever, Stanley did not ask to be charged with the legal

‘. responsibility for the children. He asked only that such

legal responsibility be giyen to no-one else. He seemted,

in particular, to be concerned. with the logs of the aweltare

payments he would suffer as a result of the —

of others as guardians of the children. ©

Not only, then, do I see no ground for holding that

_ Illinois’ statutory definition of “parents” on its face vio- _ .

lates the Equal Protection Clause; I see no ground for

holding that any constitutionatright of Stanley has been

denied in the: application of that statutory, definition in

the case at bar.

As Mr. Justice \ Frankfurter once observed, “Invalidat-

ing legislation is serious business....” Moreyv.Doud,_ .

354 U. S. 457, 474, Wants (dissenting opinion). The 7

» 5 As the majority skeen, \ ante, at 646, Joa Stanley gave birth to

three children during the 18, years Peter Stanley was living “inter-

mittently” with her. At oral: argument, we were told by Stanley’s

i counsel that the oldest of these three children had previously been

_ declared a ward of the court pursuant to a. neglect proceeding that

- was “proven against.” Stanley at a time, apparently, when the juvenile

court officials were under the erroneous impression that. Peter and .

— a Tr. of Oral Arg. 19.

after the death of the mother, Stanley turned these two

"668 - * OCTOBER TERM, 1971.

" Boram, C. J., dissenting ° . 4050.8.

Court today pursues that serious business by eapainding

its legitimate jurisdiction beyond what I read in 28 .

U. S.C. § 1257 as the permissible limits contemp |

by Congress: In doing s0, it invalidates a provision:

critical importance to IHinois’ carefully drawn statutory

system governing family relationships and the welfare of

the minor children of the State. And in so invalidating —

- that provision, it ascribes to that statutory system aipre-

sumption that is simply not there and embarks on a

novel.concept of the natural law for unwed fathers that

could well have strange boundaries as yet undiscernible.