Parham v. Hughes – Oral Argument – January 15, 1979

Media for Parham v. Hughes

Audio Transcription for Opinion Announcement – April 24, 1979 in Parham v. Hughes

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Warren E. Burger:

We’ll hear arguments next in Parham against Hughes.

Mr. Greer, I think you may proceed whenever you’re ready now.

Thomas E. Greer:

Mr. Chief Justice and may it please the Court.

The question before the Court in this case is whether Georgia may consistent with the Equal Protection and Due Process Clauses of the United States Constitution allow the mother of an illegitimate child to recover for the wrongful death of that child and deny that right to the father of the child despite the fact that the mother is deceased and despite the fact that the father maintained a meaningful relationship with that child.

And it presents to relate a question of whether the present classification constitutes impermissible gender-based discrimination.

The Georgia Supreme Court in this opinion makes the point over and over again that the legitimate state interest to be promoted by the present classification.

There’s a discouragement of an illegal act.

The illegal act that classifications is purported to discourage is the creation in the birth of children out of wedlock.

That illegal act has two participants, each of an equal degree of participation and each of an equal degree of complicity.

Warren E. Burger:

Would you agree that the charge in legislature could abolish the old claims for deaths by wrongful act?

Thomas E. Greer:

That they could abolish all claims for a death by wrongful act?

I would think to say that Georgia could constitutionally do that.

And yet despite the fact that these parties have an equal degree of participation in the act that the state seeks to discourage, one of those parties has accorded all the rights of a natural parent.

She has accorded all the rights of a natural parent without regard to what her actual relationship with the child was and she has re — she has accorded those rights without the necessity of being affirmative action on her part.

By contrast, the state has singled out the other participant in the illegal act as the member who will serve as the state’s means of discouraging that act.

He has accorded none of the rights, accorded a natural parent unless he takes affirmative action.

Appellant submits that in cases like the present one that the classification before the Court constitutes impermissible gender-based discrimination and is otherwise in violation of the Equal Protection and Due Process Clause.

Warren E. Burger:

Does it make any difference to your case whether the mother is living or dead or whether the child ever saw the father?

Thomas E. Greer:

Your Honor, I think it makes a tremendous amount of difference because I don’t think the Georgia legislature is obligated to absolutely guarantee the father of an illegitimate child the right to participate in the recovery.

I think that the message of Trimble versus Gordon and Stanley versus Illinois and Weber versus Aetna Casualty is that the state must carefully attune its alternatives in this area.

I think that Georgia has failed to carefully tune its alternatives.

I think it could have a carefully tuned statute like it — like several other states have.

For example, Washington State has a statute which establishes a preferential scheme of recovery that allows the father of an illegitimate child to participate in that recovery if he had done one of two things.

No, if he done both two things, if he could prove his paternity and if he had regularly contributed for the support of the child.

Maryland has a similar statute.

Maryland allows him to participate in the recovery if he can prove that he either had his paternity judicially established, that he acknowledge his paternity in writing or that he had openly and notoriously acknowledged the child as his own during the child’s life.

Warren E. Burger:

Well, is there a constitutional obligation on every state to attune its statutes to fit every conceivable situation that may arise?

Thomas E. Greer:

No Your Honor, not every conceivable situation that may arise.

I do think a blanket exclusion of fathers of illegitimate child — illegitimate children offends the Equal Protection Clause when a state may carefully attune its alternatives and still protect its interest in the area which I think the State of Georgia has failed to do in the present matter.

William H. Rehnquist:

Mr. Greer, as I understand it, some states permit different elements of damages and recovery for wrongful death of children on the part of parents and others.

William H. Rehnquist:

And I suppose perhaps the tuning that you’re talking about might have something to do with what elements of damages are permitted.

What elements of damages does Georgia permit you to recover?

Thomas E. Greer:

Georgia allows recovery for the value of the life of a child, it’s a — and then its subject purely to the jury’s discretion from that point forward.

William H. Rehnquist:

Could it — it could include a loss of consortium type of (Voice Overlap)?

Thomas E. Greer:

It includes — instructions have been approved which allow the jury to consider the loss of companionship issue.

William H. Rehnquist:

So it isn’t just a monetary thing that the child would have supplied you with so much money over the year.

Thomas E. Greer:

No Your Honor, as a matter of fact, the Georgia legislature expressly repealed the statute in 1952 that require the contribution by the minor to the support of the parents.

The minor child, Lemuel Parham was born of course to the appellant Curtis Parham and Cassandra Moreen out of wedlock.

The child’s mother Cassandra Moreen was killed in the same accident which took the child’s life.

This original action was instituted in the Superior Court of Richmond County.

That Court held the Georgia wrongful death statute unconstitutional and in violation of the Equal Protection Clause and in doing so, they made several findings of fact which I think are critical to this case.

They found that —

William J. Brennan, Jr.:

Were the parents living together or?

Thomas E. Greer:

No Your Honor, not as much — no, Your Honor, they were not.

They found that while the deceased child was an illegitimate child that the father had executed the child’s birth certificate at his birth, acknowledging his paternity that the father had paid the birth expenses, that he had regularly supported the child from its birth until its death that he had at all times acknowledged the child as his son and was acknowledged by the child as his father.

The record reflects that the child utilized the father’s name and not the mother’s.

The Court went on to find that in addition to paying regular support that the appellant had maintained charged accounts, had grocery stores to further provide necessities for the support of a child.

And the Court found finally that he had maintained a consistent relationship of visitation and in fact visited with the child virtually everyday and have the child for many complete weekends and by —

William J. Brennan, Jr.:

Mr. Greer, let me ask you too, there’s a suggestion that a cause of action by the administratrix is pending, is that still pending?

Thomas E. Greer:

Your Honor that action is pending.

It has been enjoined, the administratrix system, maternal grandmother.

With regard to that point Your Honor, think the Court — that is the point made by the appellee in the appellee’s brief is that it is not as though there has been no provision for recovery.

I think this Court made the point in Weber versus Aetna Casualty that the real question in referring back to Levy, the real question is not whether there is a steam of recovery but whether there is a scheme of recovery which comports with the mandate of the Equal Protection and Due Process Clauses of the United States.

So there is another action pending but I think the question before the Court is whether the scheme of recovery that exists is consistent with the Equal Protection Clause.

The trial court found that —

William J. Brennan, Jr.:

Are you representing the state?

Thomas E. Greer:

No Your Honor.

I represent the appellant Mr.– of the actual father.

William J. Brennan, Jr.:

So you haven’t — you’re not in the administrative’s lawsuit in any way.

Thomas E. Greer:

No Your Honor.

William J. Brennan, Jr.:

Why is that being held up?

Pending disposition (Voice Overlap) —

Thomas E. Greer:

Pending disposition of this case.

William J. Brennan, Jr.:

Is it agreed that that — that the administratrix occupies a secondary capacity to either parent?

Thomas E. Greer:

No Your Honor.

In the case of legitimate children, she would.

In the case an illegitimate child, the father is blanketly excluded from participation.

William J. Brennan, Jr.:

Well, why is that case being held up?

Thomas E. Greer:

I think the — there would be a prospect of an invalidation of — well, I can see theoretically how that case could proceed and the question might be who wouldn’t be entitled to recovery of the proceeds but the Superior Court of Richmond County chose to enjoin that case pending a decision in this case for fear that it might proceed with that trial and the father might be declared the proper party to maintain the action.

William H. Rehnquist:

Is there a possibility of double recovery if you prevail here?

William J. Brennan, Jr.:

Your Honor that is an argument that the appellee has made.

I have — I think it absolutely does not exist.

And the reason that I say it does not exist is in Glona versus Underwriters, this Court awarded to the mother of an illegitimate child a right to recover for that child’s death.

Implicit in the Court’s decision in that case allowing the mother to recover was a decision that other collateral relatives or other people in the statutory scheme would not be entitled to recover.

The same is true in Levy versus Louisiana.

They complicit in that Court’s decision that the children could recover for the wrongful of the mother would be a decision that she would be entitled to recover after the exclusion of —

William H. Rehnquist:

Well do you think this Court goes around awarding rights to various — in the relatives to recover under state statute?

Thomas E. Greer:

No, Your Honor.

I didn’t mean to imply that and maybe I didn’t make myself clear enough.

I think that the — I think the proper — that a proper decision in this case would be that the Georgia statute is not at the present time carefully tuned alternative considerations and that would leave Georgia any number of options.

Perhaps, I realize this Court does not award an explicit —

William H. Rehnquist:

How about the options to the various participants in this case?

Who would get the money?

Thomas E. Greer:

Your Honor, I think that in this case, the father would be the appropriate party if he prevailed in this action.

The father of a legitimate child is given that benefit.

John Paul Stevens:

Mr. Greer, under Georgia law, the unwed father could legitimate the child by filing a petition in the Superior Court in the county in which the child was born I think, is that correct?

Thomas E. Greer:

Your Honor that is correct and that is an issue I think the paramount and pollex in this case and with the Court’s permission, I would address it now.

Mr. Justice Marshall in a unanimous opinion for this Court in Quilloin versus Walcott declined the rest of decision of that Court — of this Court in that case on the fact that the father had an option to legitimate.

He did so in that case based on the fact that there were some indication in the record that he did not know the availability of it.

And at least two other cases, Trimble versus Gordon and Stanley versus Illinois, this Court has also declined to decide those cases, those respective cases on the grounds that he had an option to legitimate.

Thomas E. Greer:

In those cases, the argument was that he was no insurmountable barrier to recovery, that the father could have legitimated the child which is the argument made here, that he could have left a will providing for the child.

But the Court ruled in those cases that the — when attacked on equal protection grounds, it must survive traditional equal protection analysis.

And at the presence or absence of an insurmountable barrier can alter those considerations.

John Paul Stevens:

Of course in Trimble, the father had to marry the mother.

Thomas E. Greer:

Excuse me?

John Paul Stevens:

I say in Trimble, Illinois law required marriage as a mode of legitimating.

And that’s a bit more serious than going down to the Court and filing a petition.

Thomas E. Greer:

Yes sir I do think — I think the danger of resting a decision of this importance on that issue is — but I think it would be ironic if you have the relationship, the degree of a relationship that you have between a father and a child in this case.

And if you rest the decision on these grounds, I think it’s ironic that Mr. Parham in this case could have legitimated the child, a naked formality, he could’ve had no relationship whatsoever with that child, never supported it, never visited it, never had any contact with it all and presumptively would been — would’ve been entitled to bring this action.

Potter Stewart:

But he would’ve been under a legal duty in Georgia, wouldn’t he, to support a minor child if he were, if it were clear that he was the father?

Thomas E. Greer:

He is under a legal duty anyway.

Without regard to the —

Potter Stewart:

Not until he’s identified?

Thomas E. Greer:

Yes sir.

I mean but the — primary support obligation for an illegitimate child is placed on the father.

Potter Stewart:

On the father, right.

Thomas E. Greer:

Yes sir.

But it would be ironic that he could’ve observed that formality and been entitled to recover without regard with relationship and yet he has the degree of relationship that he has and might be denied that right because he didn’t observe the formality and I think that that argument assumes a level of awareness with regard to the necessity and the availability of legitimating petitions that in reality just doesn’t exist.

William J. Brennan, Jr.:

Would you be making the same argument if the father had not taken any part in supporting the child?

Thomas E. Greer:

I would never file a petition, no sir, the appeal if he had not had a relationship with the child.

I don’t have any question that the State has the right to deny a father who has never had a relationship with his child an absolute failure to participate.

Warren E. Burger:

So do you mean —

John Paul Stevens:

Suppose you had a mother who had never got anything for the child from the day of birth so she would have a right under the Georgia statute to bring this action, wouldn’t she?

Thomas E. Greer:

She certainly does and I think that maybe another problem with the statute that there’s not one which the issue in this case address but I think it certainly — I think it’s certainly is a potential problem.

Warren E. Burger:

You mean in each case, the Court just got to inquire into the degree how much was contributed to what the personal relationship was between the father and the child in order to make the evaluation on — that you’re pressing under the Equal Protection Clause?

Thomas E. Greer:

No, and I think that — I think in the first instance, I wouldn’t take it to a complete extreme.

I think as this Court said in Stanley versus Illinois that the Constitution recognizes high values in speed and efficiency.

I think you have to be reasonable within that context and I think that the state surely has an interest to protect but I think in the point I made earlier is that I think that a state has to strive for a middle ground between an absolute right to recover on the part of these fathers and an absolute exclusion of these fathers —

Warren E. Burger:

To meet what, to meet equal protection?

Thomas E. Greer:

Yes sir, to satisfy the Equal Protection Clause.

Warren E. Burger:

What do you say is the consequence of the certificate or the paper, whatever it was that you found after the child’s birth?

Thomas E. Greer:

Your Honor, I think that in the present it obviates an argument made by the appellee and that that the state has an interest in avoiding problems with proof of paternity.

I think this case and cases like Trimble or the cases which make it clear how dangerous it is to engage in blanket exclusion because in this case, where the man execute the birth certificate, I think he obviously would have carried this burden of proof.

I think that state certainly entitled to exact a strict standard of proof on the father in these cases and put the burden only in like Washington and Maryland and California do.

Warren E. Burger:

Would it have been any more difficult to acknowledge that paternity and legitimatize the child at that time?

Thomas E. Greer:

Your Honor, I think — the point I would make there is the point I made before and I’d like to elaborate on it.

I think that argument assumes a level of awareness about the necessity of legitimation that doesn’t exist.

And when I say that, the appellant Parham would be very surprised to find that he had to do anything to prove to the world that this was his child.

The child used his name instead of the mother’s.

He had gone for them the day of the child’s birth and executed the birth certificate acknowledging the world that it was his child.

William H. Rehnquist:

Do you think he’d be equally surprised to find he had an action for wrongful death on a part of the child before he went to a lawyer?

Thomas E. Greer:

Excuse me Your Honor.

William H. Rehnquist:

Do you think he might be equally surprised to find out that he had a lawsuit for wrongful death of the child before he walked into a lawyer’s office?

Thomas E. Greer:

No Your Honor.

I think given the degree of the relationship that he had with his child that he probably expected that he were — he was — would be the logical alternative to the child’s —

Potter Stewart:

The surprise was to find that under Georgia law, he didn’t.

Thomas E. Greer:

That was his surprise.

William J. Brennan, Jr.:

Tell me Mr. Greer, do I understand the colloquy for the last few minutes is suggesting that your argument here is addressed to the statute as applied not facially?

Thomas E. Greer:

I think it is — well, I think it is addressed to both.

I think this is a particularly appropriate case because the relationship had existed between the father and child but I think it is — I think it is invalid on its face because it blanketly excludes him —

William J. Brennan, Jr.:

Well I don’t understand why you answered that had there not been evidence here of this — of the support of this child, you would not have tried to bring the case.

Thomas E. Greer:

I don’t think that I will be in a position to suggest to this Court, to the state or to more carefully tune its alternatives if I wasn’t representing a client who would be within those carefully tuned alternatives —

Potter Stewart:

You’d have a very hard time proving damages among other things, wouldn’t you?

Thomas E. Greer:

Absolutely.

That would be–

Potter Stewart:

(Inaudible)

Thomas E. Greer:

— a major problem you’re probably subject to directed verdict for damages in the trial court.

Potter Stewart:

How old was this child at the time of his (Voice Overlap) —

Thomas E. Greer:

Seven years old at the time —

Potter Stewart:

Seven?

Thomas E. Greer:

— of his death.

Yes sir.

Potter Stewart:

At the time of his death.

William J. Brennan, Jr.:

Well, I just want to understand as you submit it has two questions to ask, it is that the statute is facially unconstitutional in the Equal Protection Clause, is it?

Thomas E. Greer:

It is facially unconstitutional and it’s unconstitutional as applied to the appellant Parham.

I — yes sir, it is facially unconstitutional.

Warren E. Burger:

You mean you’re making those all these alternative arguments.

Thomas E. Greer:

Yes sir.

Potter Stewart:

Is gender-based discrimination, I gather.

Thomas E. Greer:

Gender-based discrimination I think is — requires a little bit of separate attention.

I think that there have been two emerging propositions in the area of gender-based discrimination, both of which I’m comfortable with the purposes of this case, warranty is that that the classification must support some valid governmental objective and most importantly, it must be substantially related to the promotion of that objective that that was present in Quilloin, I think.

The asserted state interest was the promotion of the legitimate family relationships.

The direct result to this Court’s decision in Quilloin was to establish a legitimate family relationship that recognized the preferences of the child in that case, it recognized an existing family union.

In this case, there was no way that this classification which penalizes one participant and — to the illegitimate act and —

Warren E. Burger:

We’ll resume there at one o’clock counsel.

Thomas E. Greer:

Thank you, Your Honor.

Warren E. Burger:

Counsel, you may resume.

Thomas E. Greer:

Mr. Chief Justice and may it please the Court.

I have begun to address the issue of gender-based discrimination in the present case.

The state had previously there appeared to be two emerging propositions in the area of gender-based discrimination.

The first is that the classification must support a valid governmental objective.

In addition it must be substantially related to the promotion of that objective.

I think the present classification while it recognizes a valid state interest that is the promotion of legitimate family relationships could never promote that legitimate state interest.

As Justice Douglas said in Glona, it is preposterous to assume that people would give birth to illegitimate children in contemplation of the fact that they may one day be allowed to recover for the wrongful death.

As this Court stated in Weber versus Aetna Casualty, it is illogical to assume that people would shun illicit relationships for fear that their children may not one day be able to reap the benefits of a workman’s compensation law.

And as Justice Hill in his dissenting opinion and the Georgia Supreme Court stated, the sanction employed by the state in this case comes too late to have possibly promote the legitimate state interest.

So I think it fails that emerging proposition in the area of gender-based discrimination.

William H. Rehnquist:

Mr. Greer, before lunch you said a state — you felt there is emergence — propositions require a state to strike kind of a middle ground.

Supposing that there were a foster father of this child who had done everything that your client had for the child except conceive him.

Would you think the state had to permit him to recover under wrongful death statute?

Thomas E. Greer:

Your Honor I think you more nearly approach the situation of Trimble versus Gordon there where you had an existing family unit.

In that situation, it’s certainly a different question from the present one.

I think it would be very unlikely that you have a situation where you have a foster father and a natural father, both having meaningful relationships with the child.

I think this Court has traditionally recognized the strong interest of the natural parent has in its child and I think that should be some consideration.

The second emerging proposition —

Warren E. Burger:

A strong interest but it hadn’t been strong enough to lead him to change the child’s status to one of legitimacy.

Thomas E. Greer:

Your Honor, as I said before, I think that that argument is dangerous because it assumed a level of awareness about the necessity of that step.

Warren E. Burger:

You didn’t have any trouble going to a lawyer and getting some legal advice after the child’s death, do you?

Thomas E. Greer:

Once the child was deceased I think it would normally in an action where there is apparently clear negligence or where a person feels another person’s responsible.

Well I think it’s not illogical that a person might consider that he might be entitled to recover for the injury.

On the other hand in a situation where he had done everything he knew to do, to indicate to the public and the world that the child was —

Warren E. Burger:

How do we know that?

Thomas E. Greer:

Excuse me.

Warren E. Burger:

How do we know that he had done everything that he knew about?

Thomas E. Greer:

Your Honor, the record establishes that he had executed the birth certificate, that he had given the child his name, that he had supported the child, most of the acts normally associated with the father-son relationship.

And beyond that, you get to the point where —

Warren E. Burger:

Well isn’t it an equally possible hypothesis that he is willing to go that far but he didn’t want to take the steps to make the child legitimate because it might increase his liabilities and responsibilities.

Thomas E. Greer:

Your Honor, I do not think that as a logical hypothesis in the present case, for the simple reason, — I mean the appellee has made the point that maybe he’d rather do support because there were criminal sanctions if he didn’t.

Well if that’s the point to be made then he could have provided a minimal level of support and avoided the criminal sanctions but he didn’t have to go to the further extreme of visiting with the child on a daily basis and he certainly didn’t have to maintain additional charge accounts for the benefit of the child to provide as additional support.

I think its good faith as a parent has been demonstrated in this case.

Potter Stewart:

The child’s mother is dead.

Thomas E. Greer:

Deceased.

Killed in the same accident that took the life of the child.

Potter Stewart:

Killed in the same accident.

So and under Georgia law, I suppose the child would have been — become a legitimate child had the mother and father been married after his birth?

Thomas E. Greer:

Yes Your Honor.

Potter Stewart:

That would — been the only way to make the child illegitimate, wouldn’t it?

Thomas E. Greer:

He could’ve filed a petition for legitimation.

He could’ve filed a petition to legitimate the child without marrying the child —

Potter Stewart:

To legitimate the child?

Thomas E. Greer:

Yes sir.

Potter Stewart:

How to — what?

Thomas E. Greer:

There is a procedure, statutory procedure in Georgia by which the father may file a petition to legitimate the child if he chooses.

Potter Stewart:

Not just to acknowledge paternity but to legitimate the child.

Thomas E. Greer:

But to legitimate the child.

Potter Stewart:

And the child from bastard he is — correct word to — to a legitimate child.

Thomas E. Greer:

I — yes, Your Honor.

I submit to the Court that the proposition stated by the Court in Trimble and in Stanley that this equal protection question should be decided on its own merits and not in regard to the presence or the absence of an insurmountable barrier, still the proper way to decide the case.

In fact, to discuss this —

William J. Brennan, Jr.:

Incidentally, the child lived with the mother?

Thomas E. Greer:

Your Honor, that — the record does not reflect that one way or the other.

William J. Brennan, Jr.:

But the father did support the child.

Thomas E. Greer:

Absolutely.

William J. Brennan, Jr.:

And you said charged accounts.

What charged accounts in —

Thomas E. Greer:

Maintained charged accounts, the grocery store says.

William J. Brennan, Jr.:

In the child’s name?

Thomas E. Greer:

That was — the record does not indicate whether they were in the child’s name and that he maintained charged accounts utilized the additional support of the child.

William J. Brennan, Jr.:

I see.

Lewis F. Powell, Jr.:

But they did not live together, did they?

Thomas E. Greer:

No sir, they did not.

Lewis F. Powell, Jr.:

Did the record state why?

Thomas E. Greer:

No Your Honor, it does not.

Potter Stewart:

Or whether she was married to somebody else?

Thomas E. Greer:

No sir, Your Honor.

The record does not indicate whether she was married to someone.

Potter Stewart:

But I suppose under Georgia law, had she been married to somebody else when the child was born, it would’ve been her husband’s child, by presumption at least.

Thomas E. Greer:

Yes sir.

John Paul Stevens:

Mr. Greer, before — following up on one of Mr. Justice Rehnquist’s questions about the relationship, supposing that the legislature had made a study of the problem that this case illustrates and found that in about 94 and 95% of the cases, the fathers were unknown and unidentified and about 5% of the cases, the fathers did legitimate the child.

There are only a handful of cases like this one where the father of an illegitimate child has a meaningful relationship with the child.

John Paul Stevens:

Would you say the statute was unconstitutional or not?

Thomas E. Greer:

Your Honor that is the final point that I’d hope to address before I sit down and that gets in the second area that this Court, the term that this Court has talked off, that is the area of engaging an overbroad generalizations with regard to proclivities and tendencies of the sex.

John Paul Stevens:

Well supposing it’s overbroad to the extent that 2% of the cases that are subject to the statute, is it unconstitutional or not?

Thomas E. Greer:

I think if there were — if there were statistical indications to that regard, I think it may still be unconstitutional.

I think that the Court does not —

John Paul Stevens:

Wasn’t — this is the only case that this situation happens and is it still unconstitutional?So (Voice Overlap) —

Thomas E. Greer:

As applied to this appellant, I think it is Your Honor.

I don’t think the Court needs to reach that point because the present —

John Paul Stevens:

How do we know whether that’s not the fact?

Thomas E. Greer:

Well the point (Voice Overlap) —

John Paul Stevens:

Its certainly is rather unusual for the mother and the child to be killed in the same accident than — and then have the father both be the father of an illegitimate and one who has a meaningful relationship with the child.

Thomas E. Greer:

I think in reality Your Honor that the statistics if they were available would be shocking.I think they would reveal that some illegitimate children are raised by their mothers, some are raised by collateral relatives, some would be raised by grandparents, some would be raised by neighbors and friends.

John Paul Stevens:

But we really don’t know, do we?

Thomas E. Greer:

No sir.

John Paul Stevens:

Supposing

Thomas E. Greer:

Not —

John Paul Stevens:

— the legislature thought they were at — the case was with the one I described for you.

Thomas E. Greer:

Excuse me.

John Paul Stevens:

Supposing the legislature assumed perhaps incorrectly that if a study were made it would — which show the figures I’ve described, —

Thomas E. Greer:

No, I think that —

John Paul Stevens:

— would the statute be unconstitutional?

Thomas E. Greer:

In the first instance, I think there’s nothing to indicate that the legislature or the Supreme Court had at its disposal any statistics even approaching that regard.

I think the statistics, the empirical data in support of the propositions in cases like Califano versus Goldfarb, Weinberger versus Wiesenfeld were much more compelling than what’s been offered here.

All that’s been offered here is legitimization by the Georgia Supreme Court unsupported by any statistics.

John Paul Stevens:

But there’s one difference and that is you in effect conceded that in the cases where the father was unidentified and had no relationship there would no — be no — nothing unconstitutional about denying recovery.

Thomas E. Greer:

I conceded that a statute which provided for an effort in that area would more nearly comport with reality and the Equal Protection and Due Process Clauses because it would more nearly comport with reality because in those cases where he could not prove his paternity or could not prove a contact with the child then the state could justifiably exclude him from participation.

Byron R. White:

You know that’s not — don’t you have to only answer that in a sex discrimination case were the basis of review, I take it you urge in somewhat above the near rationality standard, that administrative convenience just isn’t at least if — at least if it’s not much very burdensome to individualize that the state shouldn’t be permitted to individualize.

Thomas E. Greer:

That has been the position of this Court.

As I understand it, administrative convenience is not sufficient legitimate state interest to warrant the total exclusion of a child.

Warren E. Burger:

What if the mother had been killed in the accident — had not been killed in the accident?

Warren E. Burger:

She survived, I take it, it would be your position that the mother and the father would share in a claim for death.

Thomas E. Greer:

I think the Court may be the one that would be confronted with that question in an area of legitimate children where Georgia prefers mothers over fathers in the area of legitimate children.

Georgia does — the majority of the states allow the mother and the father to share in that recovery.

Warren E. Burger:

And you would claim here if she survived and brought the action that he could intervene and share.

Thomas E. Greer:

If he could prove — I think a statute like Maryland’s or Washington’s is desirable where they require him to prove more than the fact that he’s the father that he needs to establish his paternity and a —

Warren E. Burger:

Well, I’m talking about some other statute.

I’m talking about the statute of Georgia as it is today.

Would you claim the mother and the father would have to share it?

Thomas E. Greer:

All of the facts of the present case, I think that would be the constitutional answer.

Potter Stewart:

Well then — but if the mother and father were married and the child were illegitimate, they would not share under Georgia law, would they?

Thomas E. Greer:

Under Georgia law, as it presently exists —

Potter Stewart:

The mother gets it all, (Voice Overlap).

Thomas E. Greer:

But I think it should be that way in both cases.

And I certainly think it should be that way with legitimate children.

Byron R. White:

Either way, it could be the same.

Thomas E. Greer:

Yes sir.

And as a final comment before I conclude, I think the kind of generalizations the Georgia Supreme Court engaged in and the kind that this Court has traditionally not tolerated the generalizations like to the father of the child who does not take the trouble to legitimate the child suffers no real loss when the child is killed.

I think the present facts illustrate the fallacy of that argument.

The overbroad generalization that it is the father who has control over whether a legitimate family unit will exist, that almost assumed that the father of an illegitimate child could force a marriage with the mother if he wanted to.

Unlike Califano and other cases those propositions are not supported statistically in any regard and I don’t think they can justify the present classification.

Thank you.

Warren E. Burger:

Very well.

Mr. Miller.

A. Montague Miller:

Mr. Chief Justice and may it please the Court.

This is perhaps one of those unusual cases when insofar as the appellee is concerned, the defendant in the lower court, it really makes no difference to him whether he wins or loses before this Court.

The facts I think in order to clarify the reason for a lack of evidence in this case is that the defendant was sued by both the father of the illegitimate child and by the grandmother as administrarix of the estate.

Warren E. Burger:

That’s not a — not in a joint suit.

A. Montague Miller:

No sir.

John Paul Stevens:

I’m not sure I understand your (Inaudible) that it makes no difference, are you conceding the liability to someone?

A. Montague Miller:

May it please the Court, I think that that would be the net effect.

A. Montague Miller:

The mother’s case has already been settled because there were no hindrances in that action as they are here and they will be if this Court rules a statute to be unconstitutional.

William J. Brennan, Jr.:

So there would be settlement then as I understand you either with the administratrix or with the father if he should prevail here.

So it doesn’t make any difference.

This is your approach.

A. Montague Miller:

Yes sir, that’s my approach here.

Of course as a lawyer having to practice in the State of Georgia, I would defend the statute vigorously.

I think that it’s difficult for the Court sometime to understand the problems that we have in the area of illegitimate children and fathers who cannot be located.

And I think that it is a real interest to be protected of the State of Georgia in passing the Act which they did pass.

William J. Brennan, Jr.:

Well suppose that we affirm, is Georgia law clear that the state has a cause of action?

A. Montague Miller:

Yes sir.

It’s Code Section 105-1309 provides that —

William J. Brennan, Jr.:

So that there’s no windfall to your client.

A. Montague Miller:

There is no windfall whatsoever.

And the measure of damages may it please the Court, is the full value of the life of the decedent without deduction for necessities, whether that be for an adult, an illegitimate child or a legitimate child.

The measure is the same.

Byron R. White:

What would the — what could the recovery be for in a estate?

A. Montague Miller:

The recover for the estate would be the full value of the life of the decedent without deduction for necessities as set forth by demands of an enlightened and impartial jury.

Byron R. White:

Do you think that’s the same measure as might be available to a mother?

A. Montague Miller:

It is the same the measure in writing.

Byron R. White:

Even though the mother — suppose both parents were dead and but there’s a cause of action available to the estate of the child or the estate of the mother, is that it?

Which estate are you talking about?

A. Montague Miller:

I’m referring Mr. Justice White to the estate of the child in this instance.

But the point I was attempting to make is that the measure of damages is the same whether the suit is by a mother for the death of a child, by a father for a death of the child or by the administrator or administratrix for the death of a child or for a grown up for that matter.

Byron R. White:

So it isn’t — so the major damage when the mother is suing is not the pecuniary value that the continued life of the child might mean to her.

A. Montague Miller:

No sir.

William H. Rehnquist:

But you do — you would have a tougher time with a jury, would you not if neither parent were alive simply having a court appointed administratrix testify than if you had alive mother or father when you’re testifying under the issue of loss the value of companionship.

A. Montague Miller:

Mr. Justice Rehnquist, I certainly can’t deny that that is a problem which would present itself but likewise I cannot deny that when a child is dependent upon a parent that increases perhaps the value of that child’s life.

I don’t see how you could ever get around that.

And I think it makes a difference whether the child is seven or 21 or whether the mother and child had a meaningful relationship.

Or any other number of things which would throw some light on the valuable person’s life.

William H. Rehnquist:

Well lots of children have a more meaningful relationship with their parents when they’re seven than they do when they’re 15.

A. Montague Miller:

Yes sir.

Again I think that the Court should understand the posture in which the case got here and that is that the defendant file a motion for summary judgment in the pending action.

And that motion for summary judgment by the defendant was opposed by an affidavit of the father of the illegitimate child and those are all of the facts that happened to be before the Court.

So there may be some facts that the Court has inquired about that no one knows because the Superior Court of Richmond County here that the affidavit of the father has two of these facts were taken as true and therefore rendered its decision based upon that.

Harry A. Blackmun:

Mr. Miller, I take it under Georgia law, the father is not an heir of the deceased child.

A. Montague Miller:

Mr. Justice Blackmun, I think that that is a correct statement and I think that it is also correct that the mother of an illegitimate child does not inherit.

And I think that is the better question which should be brought to this Court for the decision and that is who the heirs at law of a person who is illegitimate.

And I think that that would eliminate an awful lot of problems that would be brought forth in the event that this Court would hold the Georgia statute unconstitutional because eventually you will find that if this statute is unconstitutional, then of course the right of action in the mother is unconstitutional.

Perhaps the right of action vested in the mother of a legitimate child to the exclusion of the father is unconstitutional and then we don’t have any rights of action for wrongful death in the State of Georgia because they’re all based thereon.

Harry A. Blackmun:

Then there would be a windfall?

A. Montague Miller:

Yes it would be a windfall then.

Byron R. White:

I feel the legislature got busy.

A. Montague Miller:

Well they don’t have much time, it’d be awhile.

They’re only in session for 40 days when they had begun, they’ll finish in January, the first part of their work.

I think that in this case, that we should think for a minute about not only the problems that might be caused but by the manner in which the State of Georgia has treated illegitimate children.

Georgia by statute has allowed a father to file a petition to legitimate the child and it’s a very simple matter.

It’s simply a petition brought in the county where the trial resides, stating that he is a father and he can have the child assume his name if he so decides.

It’s not a very difficult thing and I think to decide a case based upon the level of awareness, it might exist through the citizens to the state for a law that has been on the books now for 92 years and has never been challenged by anyone, father, mother or otherwise.

So it must be a very unique situation in one which I would submit to the Court would allow the state to proceed as it did and to hold that this particular statute is constitutional.

It was passed in 1887 and amended one time in 1952.

Prior to that time, of course there was no cause of action for wrongful death by common law.

William H. Rehnquist:

Is there any particular reason — I notice your co-counsel is from — your opponent is from Carleton which I gather is in Western Georgia and that this suit was filed in the Richmond County Court which I gather is Augusta.

Is there any venue provision that’s involved there?

A. Montague Miller:

Yes sir, Mr. Justice Rehnquist.

The suit must be brought in the county of the residence of the defendant if he is a resident of the state where the acts did occur so that was his only venue.

We also in the codification of the laws have stated on numerous occasions in the statutes that there can be no discrimination on account of a person being illegitimate that there can be no defense of a child being illegitimate in action brought by the mother whether in her own right or in a representative capacity or as the mother.

And that a mother can proceed to file an action and collect the proceeds arising out of the death of her child, natural child whether it be legitimate or not.

I can find no reason to vary from the most recent decision of Lalli v. Lalli or the Quilloin decision in arriving at the constitutionality of this case.

In the Quilloin v. Walcott, the options that are available and were available to this father, here the father are the same.

A. Montague Miller:

And Mr. Justice Marshall writing on a unanimous opinion of the Court stated that necessarily it existed that the father could have brought a petition to legitimate the child and therefore obtain a veto right over the adoption of the child.

And I would think that it must be that the interest of a father in being able to veto the adoption of a child would far outweigh the right of a father to bring an action for damages for the death of a seven-year old child.

It is incomprehensible to me that that would not be true and this Court held that since that was some middle ground that the father could take that is between exclusion in a case-by-case method or in the Trimble case having to marry the mother that he could in this instance bring a very informal petition and legitimate the child and thereby could have obtained the veto rights to their adoption.

William H. Rehnquist:

Well Mr. Miller, do you represent the maternal grandmother in this case?

A. Montague Miller:

No sir, I represent the defendant.

The maternal grandmother is the other plaintiff.

William H. Rehnquist:

She is the other plaintiff whose action you said was proceeding?

A. Montague Miller:

Yes sir.

William H. Rehnquist:

And you represent the defendant who is being sued for negligence as a result of the wrong — claim of wrongful death.

A. Montague Miller:

That’s correct.

In the Lalli case of course this Court again held in looking at the New York statute, Mr. Justice Powell writing the decision that the father, punitive father could have in that instance brought a petition, I think it would be a petition to legitimate the child by simply doing his lifetime acknowledging the child and thereby the child would have been able to inherit from the father’s estate.

And although the decision was five to four, I submit that the rationale there is the same as exists here and that the interim step was also available to the father.

Thurgood Marshall:

Mr. Miller, are you — some kind of tell me why that’s a value to the state?

A. Montague Miller:

A value to the state in my opinion Mr. Justice Marshall, it is a value to the state in that we are able to dispose of litigation without having to look for parents and I realize while it might appear that this Court has rejected that before I think that it is now a valid argument.

Potter Stewart:

Well that would be a valid interest if this were a question of whether or not an illegitimate father could inherit or something like that but you don’t have to look for parents.

See, there’s a plaintiff in a lawsuit.

He found himself and walked into Court and filed a complaint.

A. Montague Miller:

Yes sir.

That is —

Potter Stewart:

If he hadn’t you would have no duty whatsoever.

A. Montague Miller:

That’s correct but it’s not unusual in our state to have more than one person and sometimes several making claims to one source.

And what it means just very practically is that you cannot so with any punitive father until you have a decision from the highest court in that state —

Potter Stewart:

That he is —

A. Montague Miller:

— that he is the father.

Potter Stewart:

I see.

A. Montague Miller:

And that means that I’ve got to defend everyone of them.

I can’t settle it and another jury two months from there may decide that the facts in that case prove this case and then I don’t have a double recovery which I think is a real issue.

Thurgood Marshall:

Well then this case the father gave his own name to the boy.

A. Montague Miller:

That’s the way the record appear, Mr. Justice Marshall.

Thurgood Marshall:

Well, that’s the way the record is.

A. Montague Miller:

Yes sir.

What happened —

Thurgood Marshall:

So the state didn’t have any trouble then, did they?

A. Montague Miller:

The state would not have had I do not think any trouble to —

Thurgood Marshall:

And you wouldn’t need them, would you?

A. Montague Miller:

I don’t think I would have any trouble locating this man.

Thurgood Marshall:

So why did the necessity going to this petition business?

A. Montague Miller:

Because Mr. Justice Marshall I think that what you do if you rule a statute unconstitutional that you would have to extend some law to say that this was a formal acknowledgment and a formal acknowledgment is all that’s necessary.

Now, what happened is simply that either the mother or father signs a birth certificate.

And that’s all that happened.

The father signed the birth certificate.

Thurgood Marshall:

I thought the father here kept the birth certificate.

A. Montague Miller:

No sir.

The birth certificate as Your Honor knows have been issued retained —

Thurgood Marshall:

But I thought the —

A. Montague Miller:

— as a matter of law.

Thurgood Marshall:

— affidavit, it said that the father was the one who went to obtain the birth certificate.

Isn’t that what this record shows?

A. Montague Miller:

I cannot answer that yes or no but I — the state is by law has placed a burden of obtaining birth certificates not on the past but rather on the hospital or physicians that deliver the child.

And I would like to answer your question no because I don’t recall it being that way but I would be presumptuous to do so.

William H. Rehnquist:

You have a little difference in incentives here as compared to the inheritance cases, don’t you?

In the inheritance cases, it’s generally the illegitimate child who is striving to show paternity and here it’s a little bit like the unknown heirs of property on which oil is discovered, you conceivably have the incentive in the illegitimate, the parent who fathered the illegitimate child rather than in the illegitimate child.

A. Montague Miller:

That’s correct sir.

I agree with that.

But with a pool of money comes perhaps more than one punitive father and they’re in lines of a real problem.

William H. Rehnquist:

Just like there may be more than one unknown error at the wellhead where oil is found.

A. Montague Miller:

Yes sir and as each well is struck, the heirs generally come forward.

William H. Rehnquist:

(Inaudible) on page 4 of the appendix, because the natural father, he’d execute the —

A. Montague Miller:

Yes sir.

William H. Rehnquist:

— birth certificate.

A. Montague Miller:

Yes sir.

He signed the birth certificate.

Either the mother or the father signed the birth —

Thurgood Marshall:

You said the father did.

A. Montague Miller:

Yes sir.

Thurgood Marshall:

But what else did the state need more than that?

A. Montague Miller:

What else did the state need more than that?

Thurgood Marshall:

Yes sir.

A. Montague Miller:

The statute says that he has a right to legitimate the child and I don’t think that the State of Georgia has to acquiesce and say that that is sufficient acknowledgment of a child to make the child no longer illegitimate.

Thurgood Marshall:

Well, he admits it’s his child.

A. Montague Miller:

Yes sir.

Warren E. Burger:

But under Georgia law, that does not make the child illegitimate, is that what —

A. Montague Miller:

No sir, it does not make the child legitimate.

Warren E. Burger:

He has to file a petition.

A. Montague Miller:

Or marry the mother.

Either or.

Thurgood Marshall:

Why do you think you went to the trouble of executing that?

Just for the sake of a writing in a piece of paper?

A. Montague Miller:

No sir.

I doubt that very seriously.

I would think he’d probably love the child.

I have no doubt about that.

John Paul Stevens:

Mr. Miller, did — but Mr. Greer tell us that the Georgia law requires unwed fathers to support their children —

A. Montague Miller:

Yes sir.

John Paul Stevens:

— regardless?

A. Montague Miller:

Yes sir.

John Paul Stevens:

How does Georgia go about locating them?

A. Montague Miller:

They do not locate them.

They leave that either to the child or to the mother to bring that action.

It is a criminal statute but — also but I never heard of that being applied by the state unless it was to recoup some benefits that have been paid or an action was requested by the child or by the mother.

A. Montague Miller:

And lastly I think that I wanted to point — I wanted to cover is that I know of no way really that a mother can legitimate a child.

I do believe that if that were true, there’d be very few cases in which a child would remain illegitimate.

I think on some occasions certainly a mother would not want to legitimate a child but if it didn’t require her to marry the father but simply legitimate the child, I’m sure that there would be no illegitimate children and therefore no problems that we have today in this particular action.

I submit to the Court that there is a rational and reasonable state interest to be protected and I submit that the vague generalities of equal protection and due process do not require that each case be decided on its merits which would be certainly not required and that they can do as they did in enacting the statute provide that the father could recover for the death of the child if he married the mother or filed a petition to legitimate the child.

Thank you.

Warren E. Burger:

Thank you Mr. Miller.

Do you have anything further counsel?

Thomas E. Greer:

If I may be permitted.

Warren E. Burger:

Very well.

You have three minutes left.

Thomas E. Greer:

Counsel for appellee makes the point that these facts may be subject to speculation with regards with relationship between the father and child because they were only documented in affidavit.

What counsel for appellee does not point out is that it is a matter of record in this Court now that that affidavit and every other pleading and every brief that’s been filed in this case was served on the maternal grandmother through her attorney for the expressed reasoning of giving them an opportunity to contest those facts if there were any — if they existed to the contrary.

There’s been no effort to intervene in these proceedings, although under Georgia law, they are fully entitled to do so.

There’s been no response in the affidavit, no response in the brief from the Georgia Supreme Court and no response to the brief in this Court and they were served with all those documents.

Appellee asked the Court to affirm the decision of the Georgia Supreme Court relying on Quilloin versus Walcott.

I think that that case is distinguishable in several regards.

I think the relationship between the father and the child there was sporadic, number one.

Number two, the father there was at least according to the hearing, the state properly applied the best interest of the child test and the father lost in that hearing.

He is not even —

Warren E. Burger:

Would it make any difference to your case if the father had never seen the child after the child’s birth, hadn’t filed — hadn’t done anything about the birth certificate on your equal protection argument?

Thomas E. Greer:

On the equal protection argument?

Yes Your Honor, I think it does.

Well I think, the whole point I hate to be redundant is that I think the failing of — the failure of the State of Georgia is the failure to recognize a middle ground between what Your Honor talks about and total exclusion.

I think — a total exclusion by absolute right to recovery, I think that’s the failure.

I think the Court in Quilloin was distinguishing between the rights of the father of an illegitimate child and of the — of a divorced father.

I think arguably it might promote the objective of legitimate family relationships there.

But here the present classification distinguishes between two participants in an illegitimate act purportedly to discourage that illegitimate act and I fail to say I could ever, ever promote that state interest to this service.

Is the time mean, I’m — the red light is there, okay.

Warren E. Burger:

The red light —

Thomas E. Greer:

I think that —

Warren E. Burger:

— will tell you.

Thomas E. Greer:

The —

Thurgood Marshall:

(Inaudible)

Thomas E. Greer:

There was the implication made by counsel for appellee that this father has only come forward when there’s monetary advantage involved.

And I think that’s another overbroad generalization.

It’s not supported.

This father didn’t do that.

He was a father to this child from the beginning to the end.

And I think that warrants some sort of deference and I think that’s been the message of this Court.

I thank the Court for the privilege.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.