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icut.34 In Griswold a Connecticut statute prohibiting the use of contraceptives had been found to invade the privacy of married couples. In Eisenstadt, Justicc Brennan said: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear to beget a child.”3. Justice Brennan went out of his way to deny the legal metaphor, founded on the religious metaphor in Genesis, that man and wife are one flesh: “... the marital couple," he said, "is not an independent entity with a mind and heart of its

936 Equal, but separate, each person had a constitutional right to procreative privacy.

In dissent in Eisenstadt, Chief Justice Burger referred to the right to privacy's “tenuous moorings to the text of the Constitution."37 But it was the doctrine of Justice Brennan which was followed in the Abortion Cases, Roe v. Wade38 and Doe v. Bolton.39 The right to an abortion was founded on the right to privacy said to be located in the ninth or fourteenth amendment. No distinction was drawn between the unmarried plaintiff Jane Roe and the married plaintiff Mary Doe.40

Unarticulated considerations of policy could explain the Court's actions so far reviewed. The cases involved either illegitimacy or birth control. Illegitimacy has been proportionately higher among non-whites than whites. 41 Lines drawn on the basis of legitimacy could be viewed as a sophisticated form of racial discrimination. The Court could have felt that it realistically extended the constitutional prohibition of racial discrimination in striking them down. Restrictions on methods of birth control prevent expeditious curtailment of population growth.42 The Court could have felt that the new pressures of population justified the making of new constitutional quirements. That a policy of restricting population conflicts with a policy of not penalizing illegitimacy need not have prevented the Justices from riding first one horse and then the other. These factors of policy may ac

34. 381 U.S. 479 (1965).
35. 405 U.S. 438, 453 (italics in original).
36. Id.
37. Id. at 472 (dissenting opinion),
38. 410 U.S.113 (1973).
39. 410 U.S. 179 (1973).

40. See Roe v. Wade, 410 U.S. 113, 125 (1973) and Doe v. Bolton, 410 U.S. 179, 187 (1973).

41. U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1972, TABLE 66: ILLEGITIMATE LIVE BIRTHS BY RACE AND AGE OF MOTHERS 19401968 at 51. Interestingly, the illegitimacy rates for non-whites have been decreasing since 1960, while the rate for whites has increased steadily. The non-white rates, however, remain many times greater because of the initial disproportion.

42. COMMISSION ON POPULATION GROWTH AND TJIE AMERICAN FUTURE, POPULATION AND THE AMERICAN FUTURE 172-73 (paperback ed. 1972).

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count in part for the Court's approach. They do not explain why the Court has gone as far as it has in its two most striking refusals to acknowledge marriage as a permissible legal criterion.

In Stanley v. Illinois, 43 decided in 1972, Peter Stanley had lived intermittently with Joan for eighteen years and had had by her three children whom he did not adopt. When she died, he put the children with foster parents. No one was legally responsible for the children. The state moved to have a guardian appointed. Stanley contended that he was his children's natural guardian and, like a lawful father, could not be supplanted without a hearing in which his unfitness to continue had been demonstrated. The Court sustained his position. Both Due Process and Equal Protection required that he be given a hearing. The state, Justice White wrote, was bound to give recognition through a hearing to "[t]he private interest, that of a man in the children he has sired and raised.”44 The state was bound not to discriminate between married fathers and unmarried fathers in giving a right to a hearing. Chief Justice Burger, in dissent, protested that the Constitution was not violated if Illinois recognized the father-child relationship only "in the context of family units bound together by legal obligations arising from marriage or from adoption proceedings." His dissent underlined the significance of the Court's holding. In Glona the unmarried mother had been given the relatively limited rights in tort of a married parent. In Stanley, the unmarried father was accorded the essential position of a married parent in the retention of his children.

The most recent of these decisions treating marriage as a constitutionally impermissible category is the second Foods Stamps Case, United States Department of Agriculture v. Moreno.45 Congress, in 1971, had amended the Food Stamp Act to exclude from its benefits unrelated individuals under the age of sixty living together as a household. 46 The Conference Committee Report of the bill said the idea was to prohibit assistance to “communal 'families' of unrelated individuals." Related individuals, the Committee said deliberately, were married spouses, blood relatives and other legally related persons such as adopted children and foster children.17

Judge McGowan, speaking for a three-judge court in the District of Columbia, found the exclusion unconstitutional. Tlie purpose for it advanced by the government had been the promotion of morality-the sexual morality premised on marriage. “Recent Supreme Court decisions," Judge Mc

43. 405 U.S. 645 (1972). 44. Id. at 651. 45. 345 F. Supp. 310 (D.D.C. 1972). 46. Pub. L. No. 91-671, $ 2(a) (Jan. 11, 1971) amending 7 U.S.C. 2012(e) (1954). 47. H.R. 91-1793, 91st Cong., 2nd Sess. (1970).

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Gowan said, “make it clear that even the states, which possess a general police power not granted to Congress, cannot in the name of morality infringe the rights to privacy and frecdom of association in the home."48

Judge McGowan was right in his reading of the recent opinions of the Court. Sustaining the decision and adopting much of Judge McGowan's language, Justice Brennan noted with apparent satisfaction that the government had on appeal abandoned the justification of the statute as promotive of sexual morality. 49 The government was left with the barely credible argument that the statute's purpose was to discourage fraud. Justice Brennan exhibited the same impatience as Judge McGowan with a law which made marriage the test of eligibility for a benefit from the state. A heart of stone would have been touched by the carefully-selected plaintiffs: a 56-year old diabetic on welfare sharing a home with another woman and her three children; a mother of three who had charitably taken in a 20-yearold girl with emotional problems; a mother on welfare with a deaf daughter living with another woman in order to be near an institution for the deaf. These persons and those similarly situated could have been aided by construing the statutory exclusion to restrict it to those cohabiting with a sexual purpose. For an unexplained reason Judge McGowan and Justice Brennan thought sexual cohabitation would have been meant only if Congress had spoken of the persons living together as persons of different sexes. Without exploration of the statute's rationale, Justice Brennan held that the classification Congress had created was condemned by the Equal Protection Clause. The classification was condemned, Justice Brennan said, because it was “wholly without any rational basis."50 The third phase of the Courtthe phase of the Court obliterating the difference between marriage and no marriage-was well advanced

MARRIAGE: A LEGAL CREATION WITH

DISCRIMINATORY CONSEQUENCES

If the Court's teaching of the last two terms is reviewed, the following propositions emerge: Neither Congress. nor the States may deny to children born out of wedlock substantial rights which are given to children born in wedlock.61 Neither Congress nor the States may deny to unmarried per

48. Moreno v. U.S. Dep't of Agriculture, 345 F. Supp. 310, 314 (D.D.C. 1972).

49. United States Dep't of Agriculture v. Moreno, 93 S. Ct. 2821, 2826, 0.7 (1973).

50. Id. at 2827.

51. Gomez v. Perez, supra note 21; New Jersey Welfare Rights Organ. v. Cahill, supra note 28; Levy v. Louisiana, supra note 14; Weber v. Aetna Cas. & Ins. Co., Supra noic 18.

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sons living with their children substantial rights which are given to married persons and their children. 52

Neither Congress nor the States may deny to unmarried men substantial rights in relation to their children which are given to married men in relation to their children.53 Neither Congress nor the States may deny to women, married or unmarried, the right to decide whether to conceive or to bear a child.64 Neither Congress nor the States may withhold benefits which are given to the married from the unmarried.58 These are the conimands of the fifth, ninth, or fourteenth amendments to the Constitution.68

These propositions are taken from the cases. They do not go as far as to state the implications of the holdings, such as the inference that if the decision to procreate is beyond interference of the state, so must be the decision to have sexual intercourse. Marshalled together and baldly stated, the propositions have a generality which goes beyond the cases. The opinions are mired in contexts of facts and particular issues of policy. The general propositions helped to resolve the cases, but they may not stand apart from them. Logic is often drawn up short by countervailing pressure and long-established compromise. Carl McGowan, it might be said, did not mean that the Supreme Court would hold that any statute which based benefits on marriage denied freedom of association in the home. William Brennan, it might be added, did not mean that all sexual rights of the married were indistinguishable from those of the unmarried. Judge McGowan was speaking of food stamps, Justice Brennan of food stamps and contraceptives. Neither really had grand principles in mind. The customary privileges of marriage are anointed by custom so that they are beyond assault in the name of the Constitution.

Constitutional law, however, exists only by virtue of general principles discernible in the Constitution and, once discerned, not easily restricted to special contexts. Having decided cases in such a way that the propositions

52. New Jersey Welfare Rights Organ. v. Cahill, supra note 28; cf. King v. Smith, supra note 23.

53. Stanley v. Illinois, supra note 43; Glona v. Am. Guar., supra note 15.
54. Doe v. Bolton, siipra note 39; Roe v. Wade, supra note 38.
55. U.S. Dcp't of Agriculture v. Moreno, supra note 49.
55. United States Dept of Agriculture v. Moreno, supra note 49.

56. Fifth Amendment: United States Dep't of Agriculture v. Moreno, supra note 49; Ninth Amendment: Roe v. Wade, supra note 38 and Doc v. Bolton, supra note 39; Fourtecnih Amendment: Levy v. Louisiana, supra note 41; Glona v. American Guar. & Liab. Ins. Co., supra noic 15; Weber v. Acina Cas. & Ins. Co., supra notc 18; Richardson v. Davis, supra note 20; Gomez v. Perez, supra note 21; New Jersey Welfare Rights Organ. v. Cahill, supra note 28; Eisenstadt v. Baird, supra note 32; Roe v. Wade, supra note 38; Doe v. Bolton, sprc note 39; Stanley v. Illinois, supra note 43; United States Dept of Agriculture v. Moreno, supra note 49.

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may be framed, how would the Court explain the traditional general discriminations in favor of the married?

Consider as the most obvious example, section 1 of the Internal Revenue Code which taxes every individual "who is not a married individual” differently from “every married individual.” The distinction normally works to benefit the married making a joint return. Other sections of the Code openly operate in their favor-section 151 giving a personal exemption for a spouse and an additional exemption for a blind spouse; section 213 permitting deductions for a spouse's medical care; section 2056 subtracting a spouse's share from a decedent's gross estate; section 2523 substracting a spouse's share from a donor's gift; section 215 permitting a husband to deduct alimony." If the married and the unmarried must be treated alike in the distribution of contraceptives, can Congress rationally distinguish between them in the distribution of tax burdens? If to withhold food stamps is to interfere with privacy or the constitutional freedom of association in the home, why is there not as great an unconstitutional abridgment of freedom in the withholding of tax advantages from the unmarried? When the Court in 1916 sustained the distinction between the married and the unmarried in the income tax law, the difference between these classes was apparent on their face—the Court did not bother to discuss the difference; it dismissed the distinction in an "etc., etc."58 In the light of the decisions of the last two years, would two etceteras make the difference evident, or is differential treatment"wholly without any rational basis”?

Suppose it be said that, in structuring the income tax, the power of Congress is practically plenary, and it can make virtually as many distinctions as it chooses, the entanglements of common law and general statutes with the institution of marriage must still be justified. From property law on community property, dower, curtesy, and tenancy by the entirety to the testimonial privilege of excluding a spouse's evidence, legal benefits have been attached to being married. From the right to support from a spouse to the right to alimony from a divorced spouse, special privileges have gone with the married state. Must these benefits and rights be extended to those who, although unmarried, are realistically in a position comparable to spouses, under pain of denying the unmarried the equal protection of the law, the liberty of association, and the right of privacy?

Thc law not only discriminates in favor of the married. It creates the discriminatory category. Sex, age, race-these are categorics which physical characteristics dctcrmined before the law responded to them. Being

57. INT. Rev. Code of 1954, SS 1, 151, 213, 215, 2056, 2523. 58. Brushaber v. Union Pac. R.R., 240 U.S. 1, 25 (1916).

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