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APPENDIX B

The Family and the Supreme Courtt

John T. Noonan, Jr.*

The Court and the Status of Marriage; A Progress in Three Phases The Supreme Court's treatment of marriage is conveniently divided into three phases--Phase One, in which the Court was the self-proclaimed defender of Christian marriage; Phase Two, in which the Court was the creator of partial marriage; and Phase Threc, in which the Court became the upholder of no marriage.

Phase One began in the last quarter of the nineteenth century when the Court first concerned itself to a substantial degree with marriage. This was the era of the Mormon polygamy cases. This was the era when Chief Justice Waite sounded precisely like his contemporary, Pope Leo XIII, in declaring marriage to be "from its very nature a sacred obligation"; when Justice Matthews echoed the Book of Common Prayer in saying husband and wife are united "in the holy estate of matrimony”;? when Justice Field upheld an Idaho statute against bigamy because “[b]igamy and polygamy are crimes by the laws of all civilized and Christian countries”;3 and when Justice Bradley sustained the forfeiture of the property of the Church of Jesus Christ of Latter Day Saints because the organization of a community for the practice of polygamy is "contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” The last time these words of Justice Bradley were quoted

+ Originally delivered as the Ninth Annual Pope John XXIII Lecture, the Catholic University Law School, October 19, 1973. The Law Review takes pride in publishing Professor Noonan's in-depth study of the inferences that may be drawn from the recent decisions of the Supreme Court. The author is indebted for comments to Jesse Choper, Caleb Foote, and Paul Mishkin.

Professor of Law, University of California, Berkeley; A.B., 1947 Harvard; M.A., 1951; Ph.D., 1951 Catholic University of America; LL.B., 1954 Harvard.

1. Reynolds v. United States, 98 U.S. 145, 165 (1878); cf. Leo XIII, Arcanum divinac sapientiae, 12 ACTA SANCTAE SEDIS 385-88 (1880).

2. Murphy v. Ramsey, 114 U.S. 15, 45 (1885). 3. Davis v. Beason, 133 U.S. 333, 341 (1890).

4. The Laic Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49 (1890).

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with approval by the Court was 1946 by Justice Douglas, confirming the conviction of certain fundamentalist Mormons as white slavers for marrying more than one woman at one time.5

Phase Two occurred at the time of World War II and its aftermath when the rapid rise in marital breakups put the greatest strain upon the formal divorce law of the states. The Court in Williams 1“ upheld a Nevada divorce for visitors to Nevada from North Carolina; permitted in Williams Il? the state of North Carolina to show that the visitors were, after all, North Carolina domiciliaries over whom Nevada had no jurisdiction and whom North Carolina might prosecute for bigamy; let Connecticut in Rice v. Rice8 treat as a widow in Connecticut the former wife of a Connecticut resident who had received a divorce valid in Nevada; decided in May v. Anderson that a custody decree valid in Wisconsin would not bind one of the parents who lived in Ohio; and held in Vanderbilt v. Vanderbilt10 that a divorce valid in Nevada and New York would not prevent an ex-Vanderbilt

spouse from obtaining a support order as a wife in New York. The result of these decisions was that you could be free to many in one state and be able in another to personal support of your former spouse, statutory claims on your estate, and prosecution for bigamy. You could be entitled to your children in one court system and be denied your children in another. You could be a somewhere wife or a somewhere husband. You could be a husband who could not be a widower, a widower who could not be a husband, a wife who could not be a widow, and a widow who could not be a wife.11 Rice v. Rice prompted Justice Jackson to invoke Macbeth: “Confusion now hath made his masterpiece."12 Vanderbilt v. Vanderbilt, decided after fifteen years of wrestling with these issues, made Justice Frankfurter exclaim the Court is “turning the constitutional law of marital relations topsy-turvy."13 The Court had created divisible divorce, mobile marriage, or, most accurately, partial marriage.

Phase Three is modern. It began in 1968 with Levy v. Louisiana 14 The Court held that a state may not discriminate against those born out of wedlock in any action for the tortious death of a mother. In almost the

5. Cleveland v. United States, 329 U.S. 14, 19 (1946).
6. Williams v. North Carolina, 317 U.S. 287 (1942).
7. Williams v. North Carolina, 325 U.S. 226 (1945).
8. 336 U.S. 674 (1949).
9. 345 U.S. 528 (1953).
10. 354 U.S. 416 (1957).

11. Paraphrasing Justice Jackson in Rice v. Rice, 336 U.S. 674, 680 (1949) (dissenting opinion).

12. Id. at 676, quoting Macbeth, Act II, scene III, line 65.
13. Vanderbilt v. Vanderbilt, 354 U.S. 416, 425 (dissenting opinion).
14. 391 U.S. 68 (1968).

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same breath, the Court held in Glona v. American Guarantee & Liability Insurance Co. that a state may not discriminate against the mother in an action for the tortious death of a child born out of wedlock.15 None of the justices in the majority or in the minority drew any distinction between discrimination against the child and discrimination against the mother.

Labine v. Vincent,16 decided in 1971, backtracked. The Court held that a state might discriminate against a child born out of wedlock. The state might deny him the right to inherit from the man who had publicly acknowledged him to be his son. Justice Black declared:

There is no biological difference between a wife and a concubine, nor does the Constitution require that there be such a difference before the State may assert its power to protect the wife and her children against the claims of a concubine and her children. The social difference between a wife and a concubine is analogous to the difference between a legitimate and an illegitimate child. One set of relationships is socially sanctioned, legally recognized, and gives rise to various rights and duties. The other set of relation

ships is illicit and beyond the recognition of the law.17 The state's power to create and sanction discriminations based on marriage was thus roundly asserted in terms the nincteenth century Court would have understood.

A year after Justice Black's opinion, the Court decided Weber v. Aetna Casualty & Surety Co.18 Children adulterously born out of wedlock sought compensation under a Workmen's Compensation Act for the death of their father. Compensation was decreed, and the state statute barring it was invalidated. For the Court Justice Powell wrote, “The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust, ... Obviously, no child is responsible for his birth . . . . "18

The principle set out was large enough to condemn the discrimination just approved in Labine. Conceivably, to avoid fraud, a state could still set a high standard of proof of parentage for children born out of wedlock when their asserted parent was dead. An absolute rejection of their rights was irreconcilable with Weber. At the end of 1972, the Court affirmned per curiam Richardson v. Davis.20 The Social Security Administration, by

15. Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968).
16. Labinc v. Vincent, 401 U.S. 532 (1971).
17. Id. at 538.
18. 406 U.S. 164 (1972).
19. Id. at 175.
20. 409 U.S. 1069 (1972), afl's 342 P. Supp. 588 (D. Conn. 1972).

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incorporating the state's inheritance laws, bad put children born out of wedlock in a second class position for receiving social security benefits on their father's death. The Court agreed with the District Court that the discrimination was unconstitutional. Per curiam the next month, January 1973, the Court decided Gomez v. Perez.21 Texas gave children born in wedlock a right to support from their fathers while it did not give children bom out of wedlock. The state, the Court said sweepingly, "may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally."22

The force of the Court's repudiation of injury to the children brought into question statutory schemes ostensibly directed at the parents. Already in 1968, as a construction of the Social Security Act, the Court in King v. Smith23 had invalidated Alabama's "man-in-the-house" rule. Alabama and nineteen other states treated a man cohabiting with a child's mother as a parent furnishing support. By this device these states denicd the child the status of a dependent child eligible for social security benefits. The rule was found contrary to the federal Act. Congress, said Chief Justice Warren, had "determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather tian measures that punish dependent children."24

In the wake of Weber and Gomez, the approach taken in King became, in May of 1973, a matter of constitutional law. The New Jersey Family Assistance Program for the working poor provided that benefits should be paid only to married persons with children who were born in wedlock or with children who were legally adopted. The purpose of this restriction, as found by a three judge federal court, was “to preserve and strengthen traditional family life.”26 Testimony showed that “a family structure based on ceremonial marriage could provide norms and prevent anomic,"26 said Judge Fisher for this court. The strengthening of family life appeared to be a legitimate legislative end to Judge Fisher. Withholding benefits to encourage marriage appeared a rational way of achieving the end.27 In New Jersey Welfare Rights Organization v. Cahill28 the Supreme Court summarily reversed.. Judge Fisher's findings of lawful purpose and rational means

21. 409 U.S. 535 (1973).
22. Id. at 538.
23. 392 U.S. 309 (1968).
24. Id. at 325.

25. New Jersey Welfare Rights Organ v. Cahill, 349 F. Supp. 491, 496 (D.N.J. 1972).

26. Id.
27. Id. at 497.
28. 93 S. Ct. 1700 (1973).

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were treated as irrelevant. Per curiam, the Court said it was the child born out of wedlock who was being penalized. Children could not be treated unequally by the state. The Court had now extended protection of the child to the point of rejection of marriage in the definition of a family.

Levy, Weber, Richardson, and New Jersey Welfare Rights Organization all focused on the rights of children. All were dealt with by the Court under the rubric of Equal Protection. In Eisenstadt 1. Baird,29 at stake were the sexual rights of the unmarried pubescent and their unmarried elders. Before the Court was a Massachusetts statute on the distribution of contraceptives, restricting them to the married. Equal Protection was again invoked.

The “plain purpose” of the statute, Chief Justice Rugg of Massachusetts had said of its unamended form in 1917, was "to protect purity, to preserve chastity, to encourage continence and self-restraint, to defend the sanctity of the home and thus to engender in the state and nation a virile and virtuous race of men and women."30 The purpose of thc statute, as Justice Reardon of the Supreme Judicial Court of Massachusetts, had said of its amended form in 1970, was to protect morals through "regulating the private sexual lives of single persons."31 Sustaining the statute in 1917, Chicf Justice Rugg spoke like Cardinal Mercier and the bishops of Belgium, his contemporaries, giving the reasons for the Catholic ban on contraception. Sustaining the statute in 1970, Justice Reardon spoke like some contemporary Catholic apologists giving a reason for the same ban. Speaking in 1972 for the Court, Justice Brennan saw no validity in these purposes. “[W]hatever the rights of the individual to access to contraceptives may be," Justice Brennan said “the rights must be the same for the unmarried and the married alike."32 The right of the unmarried to be treated like the married in a sexual matter of this character flowed from the equal protection clause. Consistent with that clause, Justice Brennan said, the state could not "outlaw distribution to unmarried but not to married persons.

Eisenstadt also provided occasion for the Court to turn upside down the right of privacy it had discovered in the Constitution in Griswold v. Connect

"33

29. 405 U.S. 438 (1972).

30. Commonwealih v. Allison, 227 Mass. 57, 62, 116 N.E. 265, 266 (1917); cf. Instructions des Evêques de Belgique sur l'onanisme, 41 NOUVELLE REVUE THÉOLOGIQUE 616-22 (1909).

31. Sturgis v. Attorney General, 358 Mass. 37, 260 N.B.2d 687, 690 (1970); cf. A. ZIMMERMAN, CANIOLIC VIEWPOINT ON OVER-POPULATION 148 (1961).

32. Eisenstadt v. Baird, 405 U.S. 438, 453 (1965). 33. ld. at 454.

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