McCleskey v. Zant En Banc Brief for Petitioner as Appellee and Cross-Appellant (Habeas Corpus)

    In t h e

UnprTmp (Hourt nf tlj? llmti'i* States
October Term, 1967

No. 508

T helma L evy, in her capacity as administratrix of the 
succession of L ouise L evy and as the tutrix of and on 
behalf of the minor children of L ouise L evy, said chil­
dren being: R onald B ell, R egina L evy, Cecilia L evy, 
L inda L evy, and A ustin L evy.

The State of L ouisiana through the Charity H ospital of 
L ouisiana at New Orleans B oard of A dministrators 
and W. J. W ing, M.D. and A.B.C. I nsurance Com­
panies.

on APPEAL FROM THE SUPREME COURT OF LOUISIANA

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE AND ACCOMPANYING BRIEF

H arry D. K rause
2009 Cureton Drive 
ITrbana, Illinois 61801

J ack Greenberg 
L eroy D. Clark

10 Columbus Circle
New York, New York 10019

Counsel for the NAACP Legal Defense 
and Educational Fund, Inc., and the 
National Office for the Rights of the 
Indigent



I N D E X

Statements of Interest ......................................................  1

Opinion Below ....................................................................  3

Statute Involved ................................................................  3

Question Presented .......    3

Statement of the Case ......................................................  4

Summary of Argument ....................................................  6

Argument:

I. Denial of Equal Protection ........    7

II. Evaluation of the Relationship Between the 
Discrimination against Illegitimates Imposed 
under the Louisiana Wrongful Death Act and 
the Act’s Regulatory Purpose ........................... 10

III. Historical Accident—The True Reason for the
Discriminatory Interpretation of the Louisiana 
Wrongful Death Act ............................................. 15

IV. Racial Discrimination ........................................... 18

V. Due Process ............................................................ 21

C onclusion ........    25

T able oe Cases

Aptheker v. Secretary of State, 378 U.S. 500 (1964) .... 11

Barbier v. Connolly, 113 U.S. 27 (1885) ....................... 7
Benjamin v. Hardware Mutual Casualty Co., 244 F.

Supp. 652 (W.D. La. 1965) ........................................... 13
Board of Comm’rs v. City of New Orleans, 223 La. 199,

65 So.2d 313 (1954) ......................................................13,14

PAGE



11

Willie Earl Carthan v. State Board of Education, C.A.
No. 3814, U.S.D.C. Southern District Mississippi,
Miss. Div.............................................................................  21

Evans v. United States, 100 F. Supp. 5 (W.D. La. 1951) 13

Glona v. American Guaranty & Liability Insurance
Company et al., 379 F.2d 545 (5th Cir. 1967) .........  13

Green v. New Orleans S & G.I.R. Co., 141 La. 120, 74
So. 717 (1917) ...........    13

Griffin v. County School Board, 377 U.S. 218 (1964) .... 19 
Griswold v. Connecticut, 381 U.S. 479 (1965) ...............  21

Hackin v. Arizona,------U .S .------- , 88 S. Ct. 325 (1967) 11
Harper v. Virginia Board of Elections, 383 U.S. 663

(1966) ..........................................................   8
Hirabayashi v. United States, 320 U.S. 81 (1943) .......  6
Hubgh v. H.O. & C.R.R., 23 La. (6 La. Ann.) 495, 54 

Am. Dec. 565 (1851) .......................................................  16

Jackson v. Lindlom, 84 So. 2d 101 (La. Ct. App. 1955) 13

Landry v. American Creosote Works, 119 La. 231, 43
So. 1016 (1907) ..............................................................  13

Levy v. Louisiana,------ U.S. ——, 88 S. Ct. 290 (1967) 5
Lindsley v. National Carbonic Gas Co., 220 U.S. 61

(1911) ........................................ - .....................................  8
Loving v. Virginia, 388 U.S. 1 (1967) ...........................  6,7
Lynch v. Knoop, 118 La. 611, 43 So. 151 (1907) .........  15

Navarrette v. Joseph Laughlin, Inc., 20 So. 2d 313 
(La. Ct. App. 1944), reversed on other grounds,
209 La. 417, 24 So. 2d 672 (1946)  ............................ 13

Oyama v. California, 332 U.S. 663 (1948)  .................... 13

Sebostris Youchican v. Texas & P. Ry., 147 La. 1080,
86 So. 551 (1920) ........ ....................... ........ ....... .........  13

PAGE



Ill

Shelton v. Tucker, 364 U.S. 479 (1960) ......................... 11
Skinner v. Oklahoma, 316 U.S. 535 (1942) ................... 8

Thompson v. Vestal Lumber & Mfg. Co., 208 La. 83,
22 So. 2d 842 (1945) ......... .............................................  13

Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 
So. 926 (1907) ........ ................. ......................................  13

W olf v. Colorado, 338 U.S. 25 (1948) ........................... 21

Statutes:

Ga. Stat. Ann. §105-1306 (Supp. 1966) ......................... 17
La. Civ. Code art. 2315 ................................................ 3, 4,16
Louisiana’s Workmen’s Compensation Act ...................  f !
La. Acts 1960, No. 251 §1 at 527 ..................................  12
La. Eev. Stat. 9:422 ...........................................................  12
La. Eev. Stat. 14:79.2  ...   12
La. Eev. Stat. §23:1021(3) (1964) ....................................  14
La. Eev. Stat. 46:223 ..............................................    12
Miss. Code Ann. §2018.6.1 (1964 Supp.) ....................... 12
42 U.S.C. 416(h) (1965) ....................................................  15

Other Authorities:

Bell, Aid to Dependent Children (1915) ....................... 12

Campbell and Cowhig, The Incidence of Illegitimacy 
in the United States, 5 W elfare in E eview 1 (No.
5, May 1967) ..................................................................  11

Champaign-Urbana [Illinois] Netvs Gazette, Feb. 14, 
1966, p. 13 ........... ............................................................  19

Dorsen, ed., Poverty, Civil Liberties, and Civil Rights:
A Symposium, N.Y.U. L. E ev. 331 ............................  12

Fodor, Emotional Trauma Resulting From Illegiti­
mate Rirth, 54 A rchives of N eurology and P sychia­
try 381 (1945)

PAGE

8



IV

PAGE

Jenkins, An Experimental Study of the Relationship 
of Legitimate and Illegitimate Birth Status to 
School and Personal and Social Adjustment of Ne­
gro Children, 64 A m . J. Sociology 169 (1958) .........  9

Krause, Bringing the Bastard into the Great Society—- 
A Proposed Uniform Act on Legitimacy, 44 T ex. L.
R ev. 829 at 841-59 (1966) ...................................................  7

Krause, Equal Protection for the Illegitimate, 65 
M ich . L. R ev. 477 (1967) ................................................. 7,13

Krause, The Non-Marital Child—New Conceptions for 
the Law of Unlawfulness, 1 F am . L. Q. 1 (June, 
1967) ..................................................................................  7

McKay, Political Thickets and Crazy Quilts: Reappor­
tionment and Equal Protection, 61 M ich . L. R ev.
645 (1963) ........................................................................  8

Note, 20 T ul . L. R ev. 145 (1945) ................................... 14

Prosser, Torts 757-58 (3rd ed. (1964)) .............................  9

Sub-Commission on Prevention of Discrimination and 
Protection of Minorities of the Commission on Hu­
man Rights, United Nations Economic and Social
Council, Study of Discrimination against Persons 
Born out of Wedlock: General Principles on Equal­
ity and Non-Discrimination in Respect of Persons 
Born out of Wedlock, U.N. Doc. E/CN. 4 Sub. 2/L.
453 (13 Jan. 1967) ..........................................................  22

U. S. Bureau of the Census, Statistical Abstract of the 
United States 28 (1967) ................................................  18

U. S. Census B ureau, Statistical A bstract oe the 
U nited States 47 (1965) ..............................................  11



V

PAGE

U. S. Department of Health, Education and Welfare, 
I llegitimacy and its I mpact on the A id to D epen­
dent C hildren P rogram 35 (1960) ........................... 19

United States Department of Labor, Office of Policy 
Planning and Research, The Negro Family the Case 
for National Action (The Moynihan Report) ...........  18

U. 8. News and World Report, Oct. 2, 1967 at 8 4 ......... 18

Yoss, The Recovery of Damages for Wrongful Death 
at Common Law, at Civil Law, and in Louisiana,
6 T ul. L . R e v . 201, 221 (1932) ....................................... 17

Foreign Authorities:

I. Austria

Regierungsentwurf eines Bundesgesetzes uber die 
Neuordnung der Rechtsstellung des unehelichen
Kindes, dated June 16, 1965, No. 763 der Reilage 
zu den stenographischen Protokollen des National- 
rates X.GP. ....................................................................... 23

Gschnitzer, Grundsatzliches sur Neuordnung der 
Rechtsstellung des unehelichen Kindes, 88 J tjris- 
tische B latter 393 (1966) ..........................................  23

II. Denmark

Danish Law of May 18, 1960, concerning the rights of 
children, [1960, Part A ] Lovtidende 603, No. 200 .... 22

Marcus, Das Neue ddnische Kindergesets, 26 R abels

Z eITSCHRIFT FUR AUSLANDISCHES IXND INTERNATIONALES
P rivatrecht 51 (1966) ..................................................  22



VI

PAGE

III. France

Beinheir Ben M’Bark et Cie v. Dame Bousquet, [1954]
D. Jur. 777 (Cour d’appel, Rabat, Nov. 12, 1954) .... 18

Erhard v. Uttwiller, [1809-1811] S. Jur, 11 223 (Cour 
d’appel, Colmar, March 3, 1810) ............................ . 16

-3
Min. publ, et cons. Scherriff v. Sansen [1954] D. Jur.

176 (Cour d’appel, Douai, Dec. 10, 1953) ......... .......  18

Rolland v. Gosse, [1815-18] S. Jur. I 540 (Cass, civ.
Nov. 5, 1818) ..................................................................  16

Code Civil art. 1382

Mazeaud and Tunc, Traite theorique et pratique de la 
responsabilite civile delietuelle et contractuelle (5th 
ed. 1957) ............................................................ ...............  18

Savatier, L ’evelution de la condition juridique des en- 
fants natureals en droit francais 37 in Dabin, Le 
STATUT JURIDIQUE DE L’ENFANT NATUREL (1965) ......... 17

IV. Germany

1949 Constitution of West Germany, art. VI (5) .........  23

Referentenentwurf eines Gesetzes iiber die rechtliche 
Stellung der unehelichen Kinder (Unehelichenge- 
setz) Bundesjustizministerium, Bonn 1966 ...............  23

Knopfel, Der Referentenentwurf eines Gesetzes iiber 
die rechtliche Stellung der unehelichen Kinder, 13 
Z eITSCHRIFT EUR DAS GESAMTE F aMILIENRECHT 273
(1966) ................................................................... ................... 23



VII

Muller-Freienfels, Das Recht des aussereheliehen
PAGE

Kindes und seine Reform, in von Caemmerer and 
Zweigert, D eutsche L andesreferete zum VII. In-
TERNATIONALEN KoNGRESS FUR R eCHTSVERGLEICHUNG
in  U ppsala 1966 149 (1967) ......................................... 23

Mnller-Freienfels in 2 V erhandlungen des V ierund- 
vieezigsten D eutschen J uristentages, Sitzungs- 
berichte (1964) ...................................................  23

V. Great Britain

Lasok, Family Latv Reform in England, 8 W m . & M ary 
L. R ev. 589 (1967) ..........................................................  24

Report of the Committee on the Latv of Succession in 
Relation to Illegitimate Persons Cmnd. 3051, (Lon­
don 1966) ..........................................................................  24

Stone, Report of the Committee on the Law of Suc­
cession in Relations to the Illegitimate Persons, 30 
M odern L aw R eview 552 (1967) ............................... 24

VI. Latin America

Bolivia, Constition art. 183 (Pan American Union, 
Constitution of the Republic of Bolivia 1961 (1963)) 24

Ecuador, Constitution art. 164 (Pan American Union, 
Constitution of the Republic of Ecuador 1946 (1961)) 24

Guatemala, Constition art. 86 (2), (3) (Pan American 
Union, Constitution of the Republic of Guatemala 
1965 (1966)) .................................................................... 24

Panama, Constitution art. 58 (Pan American Union,
Constitution of the Republic of Panama 1946 (1962)) 25

Uruguay, Constitution art. 42 (Pan American Union, 
Constitution of the Republic of Uruguay 1967 (1967)) 25



vrn

VII.  New Zealand

Robson, B ritish Commonwealth , New  Z ealand 333 
(1954) .......................................................................... .....  24

VIII.  Norway

Norwegian Law of December 21, 1956, Concerning Chil­
dren Born Out of Wedlock [1956, Part 2] Norsk 
Lovtiderd 882, No. 10 ....................................................  22

Arnholm, New Norwegian Legislation Relating to 
Parents and Children, in 3 S candinavian S tudies 
in  L aw 11 (1959) ..................................................................  22

D anish  Committee on Comparative L aw , D anish and 
N orwegian L aw  55 (1963) ........................................... 22

IX.  Sweden

Swedish Law of June 10, 1949, Concerning the Legal 
Situation of Parents [1949] Fdrfattningssammling 
729, No. 381 ....................................................................  23

X.  Switzerland

Bericht der Studienkommission fur die Teilrevision 
des Familienrechts (Ausserehelichen-, Adoptions—  

und Ehegutterecht) erstattet dem Eidgenossischen 
Justiz—und Polizeidepartement am 6/13/1962 (mim­
eographed) ......   23

Eegnauer, Die Revision der Gesetzgebung tieber das 
aussereheliche Kindesverlidltnis, New Series 84 Part 
2 Z eitschrift f u r  S chweizerisches R echt 1 (1965) 23

PAGE



In t h e

(£ m irt n t  i i u  itu itrd
October Term, 1967 

No. 508

T helma L evy, in her capacity as administratrix of the 
succession of L ouise L evy and as the tutrix of and on 
behalf of the minor children of L ouise L e w , said chil­
dren being: R onald B ell, R egina L evy, Cecilia L evy, 
L inda L evy, and A ustin Levy.

—v.—
The State oe L ouisiana through the Charity H ospital oe 

L ouisiana at New Orleans B oard of A dministrators 
and W . J. W ing, M.D. and A.B.C. I nsurance Com­
panies.

ON APPEAL PROM THE SUPREME COURT OE LOUISIANA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

To the Honorable Chief Justice and Associate Justices 
of the Supreme Court of the United States.

The undersigned as counsel for and on behalf of the 
NAACP Legal Defense and Educational Fund, Inc., and 
the National Office for the Rights of the Indigent, respect­
fully move this Honorable Court for leave to file the ac­
companying brief as Amicus Curiae. Consent has been 
given by counsel for appellants and counsel for all parties 
on appellee’s side, except the State of Louisiana which 
denied its consent. Documentation concerning such consent 
accompanies this brief.

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. was organized 27 years ago for the purpose of secur­
ing equality before the law, without regard to race, for all



2

citizens. For many years, it has been the principal organi­
zation regularly supplying legal services to secure the 
civil rights of Negro citizens. As the majority of Negro 
citizens continued to relocate from the South to the North, 
and from rural to urban areas, they were confronted typi­
cally not with official state-sanctioned segregation, but with 
disabilities which attach to low-income status. Effective 
protection of the legal rights of Negro citizens therefore 
could only be secured by expanding the concern of the 
Fund to the rights of indigents including not only Negroes 
but members of all other groups that constitute the poor.

Under grant from the Ford Foundation, the Legal De­
fense Fund incorporated the National Office for the Eights 
of the Indigent (N.O.R.I.). The new organization is di­
recting itself to those issues of law which have a substan­
tial effect on the rights and protections accorded to poor 
persons. N.O.E.I. is engaging in legal research and litiga­
tion (by providing counsel for parties, as amicus curiae, 
or co-counsel with legal aid organizations) in cases in 
which rules of law may be established or interpreted to 
provide greater protection for the indigent.

The precise issue of this case is limited to whether five 
dependent illegitimate children will recover in tort for the 
wrongful death of their mother under a statute which would 
allow such recovery to legitimate children. More broadly, 
however, the question is whether, consonant with the Four­
teenth Amendment to the United States Constitution, the 
criterion of illegitimacy may be used as the basis for 
classification under a state “ welfare” law. Finally, the 
question is whether classification by the criterion of il­
legitimacy, which appears to be racially neutral on its face, 
is an instance of covert racial discrimination because it 
does in fact operate far more severely upon Negroes as 
a class than it does upon whites. This covert discrimina­



3

tion comes about by reason of the fact that disporportion- 
ately more Negro children than white children are born 
out of wedlock and a very high percentage of white il­
legitimate children are adopted, thereby achieving status 
under the Wrongful Death Act with regard to their adop­
tive parents, whereas nearly no Negro children find adop­
tive parents.

This case may have broad significance for urban popu­
lations as a whole and Negro communities in particular, 
within and outside of the State of Louisiana. Petitioners, 
therefore, wish to bring before this Court broader rami­
fications of this case which may not be of immediate im­
portance to either of the parties.

W herefore, petitioners pray that they be permitted to 
file the accompanying brief amicus curiae with this Court.

Respectfully submitted,

H arey D. K rause

2009 Cureton Drive 
ITrbana, Illinois 61801

J ack Greenberg 
L eboy D. Clark

10 Columbus Circle
New York, New York 10019

Counsel for the NAACP Legal Defense 
and Educational Fund, Inc., and the 
National Office for the Rights of the 
Indigent



In t h e

Shipraiw  (Em trt o f tfj? Iln tfrd  S ’tatiw
October Term, 1967 

No. 508

T helma L evy, in her capacity as administratrix of the 
succession of L ouise L evy and as the tutrix of and on 
behalf of the minor children of L ouise L evy, said chil­
dren being: R onald B ell, R egina Levy, Cecilia L evy, 
L inda L evy, and A ustin L evy.

The State oe L ouisiana through the Charity H ospital oe 
L ouisiana at New Orleans B oard oe A dministrators 
and W. J. W ing, M.D. and A.B.C. I nsurance Com­
panies.

ON APPEAL FROM THE SUPREME COURT OF LOUISIANA

BRIEF AMICUS CURIAE
For the NAACP Legal Defense and Educational Fund, Ine. and 

the National Office for the Rights of the Indigent.

Statement of Interest

This brief amicus curiae is submitted with the consent 
of counsel for appellant and counsel for all parties on 
appellee’s side, except the State of Louisiana which denied 
its consent. Documentation concerning such consent ac­
companies this brief.

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. was organized 27 years ago for the purpose of secur­
ing equality before the law, without regard to race, for all 
citizens. For many years, the Fund has been the principal



2

organization regularly supplying legal services to secure 
the civil rights of Negro citizens. As the majority of Negro 
citizens continued to relocate from the South to the North, 
and from rural to urban areas, they were confronted typi­
cally not with official state-sanctioned segregation, but with 
disabilities which attach to low-income status. Effective 
protection of the legal rights of Negro citizens therefore 
could only be secured by expanding the concern of the 
Fund to the rights of indigents including not only Negroes 
but members of all other groups that constitute the poor.

Under grant from the Ford Foundation, the Legal De­
fense Fund incorporated the National Office for the Rights 
of the Indigent (N.O.R.I.) which is directing itself to 
issues of law with substantial effect on the rights and 
protections accorded to poor persons. N.O.R.I. is engag­
ing in legal research and litigation (by providing counsel 
for parties, amicus curiae, or co-counsel with legal aid 
organizations) in cases in which rules of law may be estab­
lished or interpreted to provide greater protection for the 
indigent.

The precise issue of this case is limited to whether five 
dependent illegitimate children will recover in tort for the 
wrongful death of their mother under a statute which would 
allow such recovery to legitimate children. More broadly, 
however, the question is whether, consonant with the Four­
teenth Amendment to the United States Constitution, the 
criterion of illegitimacy may be used as the basis for classi­
fication under a state “welfare” law. Finally, the question 
is whether classification by the criterion of illegitimacy, 
which appears to be racially neutral on its face, operates 
far more severely upon Negroes as a class than it does upon 
whites. This covert discrimination comes about by reason 
of the fact that disproportionately more Negro children 
than white children are born out of wedlock and a very



3

high percentage of white illegitimate children are adopted, 
thereby achieving status under the Wrongful Death Act 
with regard to their adoptive parents, whereas nearly no 
Negro children find adoptive parents.

This case will have broad significance for urban popula­
tions as a whole and Negro communities in particular, with­
in and outside of the State of Louisiana. Petitioners, there­
fore, wish to bring before this Court broader ramifications 
of this case which may not be of immediate importance to 
either of the parties.

Opinions Below —  Statute Involved

The opinions below and the statute involved are set out- 
in the brief of the appellants.

Question Presented

Whether, consonant with the Fourteenth Amendment to 
the United States Constitution, the criterion of illegitimacy 
may be used as the basis for classification under a state 
“welfare” law.

More precisely, the question is whether the Wrongful 
Death Act of Louisiana, Civil Code Article 2315, as inter­
preted by the Louisiana courts to deny to illegitimate chil­
dren, but to allow to legitimate children, an action for the 
wrongful death of their mother, solely on the basis of birth 
in or out of wedlock, is unconstitutional and therefore in­
valid under the Equal Protection and Due Process Clauses 
of the Fourteenth Amendment to the Constitution of the 
United States.



4

Statement of the Case

The summary that follows is based on the Statement of 
the Case and Opinion Below in appellant’s Jurisdictional 
Statement, pp. 4-6.

Appellant brought this action under L a. Civ. Code art. 
2315 on behalf of the five minor children of the late Louise 
Levy for her wrongful death. The defendants were the 
State of Louisiana, through the Charity Hospital of New 
Orleans Board of Administrators and W. J. Wing, M.D., 
and the ABC Insurance Companies, later designated as the 
Interstate Fire and Casualty Company (R. 5-9, 37).

The Third Supplemental and Amending Petition, whose 
allegations must be taken as true for the purposes of this 
appeal, stated that the five illegitimate children of Louise 
Levy lived with her, and she treated them as well as any 
mother would treat her legitimate children. She worked as 
a domestic servant to support them and either took them 
or had them taken to Catholic Mass every Sunday. In addi­
tion, she had them enrolled in a parochial school at her own 
expense, even though she could have sent them to the free 
public school (R. 50-52).

As alleged in the petition, on March 12,1964, Louise Levy 
came to the Charity Hospital in New Orleans with symp­
toms of tiredness, dizziness, weakness, chest pain and slow­
ness of breath. Dr. Wing, to whom she was assigned, 
purportedly examined her, but failed to take her blood 
pressure, make a proper check of her eyes or conduct any 
other test, such as urinalysis, which would have revealed 
her condition. He then sent the patient home with tonic 
and tranquilizers. She returned on March 19 with severe 
symptoms. Dr. Wing merely looked at her, told her that 
she was not taking the medicine, and made an appointment 
for her to see a psychiatrist on May 14. On March 22 she



5

was brought to the hospital in a comatose condition, when 
adequate examination resulted in the correct diagnosis of 
hypertension uremia. She died on March 29, 1964 (R. 5-9).

Dr. Wing and the Interstate Fire and Casualty Company 
moved to dismiss the petition on the grounds that petitioner 
had not qualified as tutrix, and that Article 2315 allowed 
no cause or right of action as to illegitimates (R. 20-21). 
The procedural issue was cleared by appellant’s qualifica­
tion as tutrix in separate proceedings. The District Court 
then rendered judgment in favor of the defendants and the 
suit was dismissed (R. 66-67). On appeal, the Court of 
Appeal affirmed on the ground that illegitimate children 
have no cause of action for the wrongful death of their 
mother and stated that “ [djenying illegitimate children 
the right to recover in such a case is actually based on 
morals and general welfare because it discourages bringing 
children into the world out of wedlock.” The Court of 
Appeal specifically rejected appellant’s claim that the de­
nial of a cause of action under Article 2315 deprived the 
children of due process and equal protection under the 
Fourteenth Amendment (R. 112-115): “ Since there is no 
discrimination in the denial of the right of illegitimate 
children to recover based on race, color, or creed, we can 
find no basis for the contention of uneonstitutionality, and 
can find no jurisprudence of our courts to such effect.” 
Appellant petitioned the Supreme Court of Louisiana for 
a writ of certiorari on constitutional grounds. The Supreme 
Court denied the writ, finding “no error of law in the judg­
ment of the Court of Appeal” (R. 116). This Court has
noted probable jurisdiction. Levy v. Louisiana, ------  U.S.
------ , 88 S.Ct. 290 (1967).



6

Summary of Argument

“ Distinctions between citizens solely because of their an­
cestry are odious to a free people whose institutions are 
founded upon the doctrine of equality.” Hirabayashi v. 
United States, 320 U.S. 81, 100 (1943); Loving v. Virginia, 
388 U.S. 1, 11 (1967). Whether discrimination on the basis 
of ancestry rests upon the parents’ color, creed, nationality, 
religion or marital status, it offends the Equal Protection 
and Due Process Clauses of the Fourteenth Amendment to 
the United States Constitution.

Furthermore, the Louisiana statute under review dis­
criminates on the basis of race. As developed in detail be­
low, 95.8 percent of all persons affected by discrimination 
against illegitimates under the statute are Negroes. This 
means that, for practical purposes, the classification of il­
legitimacy as used under the Louisiana Wrongful Death 
Act is a euphemism for discrimination against Negroes.

The demand of the Fourteenth Amendment applies with 
particular force to a state “welfare” law, such as the 
Louisiana Wrongful Death Act here under review. Not 
only is there no rational regulatory purpose which justifies 
the discrimination against illegitimates imposed under the 
Wrongful Death Act, but the very purpose of the Wrongful 
Death Act, which is to provide compensation for the tortious 
loss of support, is thwarted by the capricious denial of re­
covery to the illegitimate.

The precise issue of the case is narrowly limited to the 
right of dependent illegitimate children to recover for the 
death of their mother under a statute which would allow 
such recovery to legitimate as well as adoptive children. 
However, the broader implications of this case point to a 
whole range of anachronistic discriminations imposed by



7

our legal system on the person of illegitimate birth.1 As 
shown by the statistics on illegitimate birth rates, this dis­
crimination hits hardest in the poorest groups of our 
society, it is imposed most severely on those least able to 
afford or combat it.

ARGUMENT

I.

Denial of Equal Protection.

The Equal Protection Clause does not forbid “ unequal 
laws” and does not require every law to be equally appli­
cable to all individuals. Barbier v. Connolly, 113 U.S. 27, 
31-32 (1885). Of necessity, classification must be permitted; 
otherwise there could be no meaningful legislation. The 
question that this Court has asked under the Fourteenth 
Amendment is whether a given piece of legislation operates 
“ equally” upon all members of a group that is defined rea­
sonably and in terms of a proper purpose.

To show that legislation discriminating against the il­
legitimate applies equally to all illegitimates, regardless of 
race, color, nationality, sex or creed proves nothing con­
cerning the validity of such legislation. Cf. Loving v. Vir­
ginia, supra. This disposes of the fundamental misunder­
standing of the meaning of the Fourteenth Amendment ex­
pressed in the Louisiana court’s opinion here under review, 
to the effect that “ since there is no discrimination in the 
denial of the right of illegitimate children to recover based 
on race, color or creed, we can find no basis for the conten­

1 See, generally, Krause, Bringing the Bastard into the Great Society—  
A  Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829 (1966); 
Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967); 
Krause, The Non-Marital Child—New Conceptions for the Law of Unlaw­
fulness, 1 Fam. L. Q. 1 (June, 1967).



8

tion of unconstitutionality.” This holding of the Louisiana 
Court begged the question, which goes to the propriety of 
the criterion of illegitimacy.

Applying the equal protection test to the criterion of il­
legitimacy, it follows that state action denying to the 
illegitimate rights that are granted to those of legitimate 
birth is acceptable only if it is related to a proper public 
concern with respect to which legitimate and illegitimate 
children are not situated similarly. In order to test for 
equal protection purposes a law regulating the status of 
the illegitimate, its legislative purpose must be defined and 
evaluated. Long ago, in Lindsley v. National Carbonic Gas 
Co., 220 U.S. 61, 78-79 (1911), this Court stated its tradi­
tional reluctance to interfere with state law where the 
equal protection clause is invoked to protect economic in­
terests. While this reluctance has been likened to a pre­
sumption of constitutionality, this presumption is reversed 
where the “basic civil rights of man” are at issue. Harper 
v. Virginia Board of Elections, 383 U.S. 663, 669-70 (1966); 
McKay, Political Thickets and Crazy Quilts: Reapportion­
ment and Equal Protection, 61 M ic h . L. Rev. 645, 666, 667 
(1963); Skinner v. Oklahoma, 316 U.S. 535, 541 (1962). It 
is beyond question that a child’s right to a familial relation­
ship with his mother is more akin to a “fundamental right 
and liberty” or a “basic civil right of man” than to a mere 
economic interest. Although money is involved, the il­
legitimate’s claim actually goes further, for it centers on 
his second-class status in our society—a society in which 
illegitimacy is a “ psychic catastrophe” 2 and in which re­
covery in tort is granted for a false allegation of illegiti­

2 “ In the case of illegitimate birth the child’s reactions to life are bound 
to be completely abnormal. . . To be fatherless is hard enough, but to be 
fatherless with the stigma of illegitimate birth is a psychic catastrophe.”  
Fodor, Emotional Trauma Resulting From Illegitimate Birth, 54 A rchives 
op Neurology and Psychiatry 381 (1945).



9

macy.3 4 Indeed, the psychological effect of the stigma of 
bastardy upon its victim1 seems entirely comparable to the 
damaging psychological effects upon the victims of racial 
discrimination.

3 The following is an abbreviated list of defamatory epithets compiled in 
a leading textbook on torts: “  . . . immoral or unchaste, or ‘queer’ . . .  a 
coward, a drunkard, a hypocrite, a liar, a scoundrel, a crook, a scandal­
monger, an anarchist, a skunk, a bastard, a eunuch . . . because all of these 
things obviously tend to affect the esteem in which he is held by his 
neighbors.” Prosser, Torts 757-58 (3rd ed. 1964). Of course, quite aside 
from the neighbors’ esteem, an allegation of bastardy may be a serious 
matter in that it may dispute eligibility to inherit.

4 Jenkins, An Experimental Study of the Relationship o f Legitimate and 
Illegitimate Birth Status to School and Personal and Social Adjustment of 
Negro Children, 64 A m. J. Sociology 169 (1958), in which the author in­
vestigated whether there were significant differences in the “ adjustment”  of 
legitimate and illegitimate Negro school children. All children in the (un­
fortunately rather small) sample were recipients of Aid to Dependent 
Children’s funds and otherwise lived in comparable economic and social 
circumstances. “Adjustment” was considered to be reflected in I.Q., age- 
grade placement, school absences, academic grades, teacher’s rating, and 
personal and social adjustment as measured by the California test of per­
sonality. J enkins reported that:

“ Two primary patterns emerged in this study. First, the legitimate 
children rated higher in every area except school absences. . . .

The second discernible patterns was that the older groups of illegiti­
mate children consistently made a poorer showing than the younger 
group, in comparison with the legitimate children. A  possible explana­
tion for this is that, as these children grow older and are able to 
internalize fully the concept of illegitimaej' and as they become in­
creasingly aware o f their socially inferior status, their adjustment to 
self and society may become progressively less satisfactory,”  Id. at 
173.



10

II.

Evaluation of the Relationship Between the Discrimi­
nation Against Illegitimates Imposed Under the Louisi­
ana Wrongful Death Act and the Act’s Regulatory Pur­
poses.

Discrimination against the illegitimate is rooted so deeply 
in our culture that legislative enactments on illegitimacy 
are generally silent as to legislative purpose. Accordingly, 
the Louisiana statute does not reveal a reason why il­
legitimates should be excluded from its beneficial opera­
tion. Indeed, the Louisiana statute itself does not refer 
to illegitimate children at all, but has been construed by 
the Louisiana courts to harbor this discrimination in the 
reference to “ children,” which is specifically defined to 
include adopted children. The history and origin of the 
line of Louisiana decisions that imposed this discrimination 
is reviewed and analyzed below. First, however, we should 
consider the argument employed by the Louisiana Court 
in the decision under review to the effect that “ Denying 
illegitimate children the right to recover in such a case 
is actually based on morals and general welfare because 
it discourages bringing children into the world out of 
wedlock.” 5 This argument is bogus.

There is of course no question that the state may prop­
erly regulate many aspects of sexual conduct. However, 
even if the purpose of discouraging sexual intercourse out­
side of marriage is entirely valid, a connection must be 
established between this purpose and the statute, between 
the status of the illegitimate child under the Wrongful 
Death Act and his mother’s conduct. The only connection, 
if one exists, lies in the expectation that potential parents 
will be so concerned about the treatment that awaits their

6 See Statement of the Case, supra.



11

illegitimate child at the hands of the law that they will 
refrain from illicit conduct. First, a causal connection 
seems to be lacking because the rapidly rising rate of 
illegitimate births6 indicates that laws discriminating 
against illegitimate children do not affect their parents’ 
sexual conduct.

Second, and more importantly, this supposed rationale 
raises the question whether a law may properly penalise 
one in order to evoke guilt feelings in another whose con­
duct is to he affected. Merely to ask the question in this 
form is to answer it. “ In a series of decisions this Court 
has held that even though the governmental purpose be 
legitimate and substantial, that purpose cannot be pursued 
by means that broadly stifle fundamental personal liberties 
when the end can be more narrowly achieved. The breadth 
of legislative abridgment must be viewed in the light of 
less drastic means for achieving the same basic purpose.” 
Shelton v. Tucker, 364 U.S. 479, 488 (I960).7 If the state 
wishes to discourage casual unions, it should do so directly,

6 U. S. Census Bureau, Statistical A bstract of the United States 
47, 51 (1965) shows a total of 4,098,000 live births, and 259,400 illegitimate 
live births for 1963. See also Campbell and Cowhig, The Incidence of 
Illegitimacy in the United States, 5 Welfare in Review 1, 4 (No. 5, May 
1967), who show the following table:

1940 1957 1965
Number of illegitimate births 89,500 201,700 291,200
Illegitimate births per 1,000 

unmarried women 15-44 years 
old (illegitimacy rate) 7.1 20.9 23.4

Illegitimate births per 1,000 
births (illegitimacy ratio) 37.9 47.4 77.4

7 Cf. Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964) (cita­
tions omitted) : “ It is a familiar and basic principle, recently reaffirmed 
in NAACP v. Alabama . . . ,  that a governmental purpose to control or 
prevent activities constitutionally subject to state regulation may not be 
achieved by means which sweep unnecessarily broadly and thereby invade 
the area of protected freedoms.”



12

as for example, by punishing fornication8 or by providing 
incentives for marriage,9 rather than by penalizing a group 
that cannot prevent the mischief against which the law is 
directed. This Court has held that the status of parents 
may not be the basis for placing burdens and disabilities

8 It would not do to punish the parents for the illegitimate birth of 
the child because, wdiether the punishment consisted of a fine, a jail 
sentence, or the denial of welfare benefits, the child ultimately bears much 
or most of the burden of such punishment. Consider the Louisiana picture 
in this regard: Since 1960, La. Rev. Stat. 14 :79.2 provides as follows: 
“ Conceiving and giving birth to two or more illegitimate children is 
hereby declared to be a crime. Both the father and the mother of such 
children shall be equally guilty of the commission o f this crime. Each 
such birth shall be a separate violation hereof. A birth certificate showing 
a child to be illegitimate shall be prima facie proof of that fact. Whoever 
commits the crime of conceiving and giving birth to two or more illegiti­
mate children shall be fined not more than one thousand dollars, or im­
prisoned for not more than one year, or both.” This type of legislation 
is not limited to Louisiana, but has found its way into other Southern 
states. Cf. Miss. Code A nn . § 2018.6.1 (1964 Supp.). Also in 1960, 
Louisiana attempted to deny ADC benefits to each person “who is living 
with his or her mother if the mother has had an illegitimate child after 
a check has been received from the welfare department, unless and until 
proof satisfactory to the parish board of public welfare has been pre­
sented showing that the mother has ceased illicit relationships and is main­
taining a suitable home for the child or children.”  La. A cts 1960, No. 251 
§ 1 at 527. In 1961, this “suitable home” requirement was ruled incon­
sistent with controlling Federal welfare laws. See Bell, A id to Depen­
dent Childebn 142-48 (1965) ; Dorsen, ed., Poverty, Civil Liberties, and 
Civil Rights: A Symposium, at 331. Accordingly, the Louisiana statute 
was revised to deny benefits only to those illegitimate children whose 
mother “ is the mother o f two or more older illegitimate children.”  La . 
R ev. Stat. 46 :223.

9 In the higher income brackets, the tax law presently provides some 
such incentive in the form of exemptions and income-splitting privileges. 
In the low-income brackets, however, the situation often is reversed, and 
many welfare arrangements actually discourage marriage and legitimacy. 
For example, a widow who remarries often will lose survivors or pension 
benefits derived through her first husband. Analogous problems arise 
under the ADC programs. In the lowest income groups the widespread 
unavailability of legal aid services that include family matters, such as 
divorce and legitimation, heavily contributes to the incidence of illegiti­
macy. Dorsen, ed., Poverty, Civil Liberties, and Civil Rights: A Sym­
posium, supra; cf. Mr.. Justice Douglas, dissenting, in Hackin v. Arizona, 
 U.S. — —, 88 S.Ct. 325, 327-32 (1967).



13

on a child. Oyama v. California, 332 U.S. 633 (1948). Cer­
tainly, it follows that wrongful, perhaps criminal, acts by 
the mother here, can not justify the particular disability 
challenged by petitioners.

A careful search fails to disclose any other potential 
regulatory purpose that might support the statute. On 
the contrary, as will be discussed fully below, the evidence 
points in the direction of tragicomic historical accident. 
Thus, there is in illegitimacy cases no question concerning 
the mother’s identity which is established by the fact of 
birth with the same certainty whether the birth takes 
place within or out of wedlock. I f  certain types of dis­
crimination against the illegitimate may unpersuasively 
be supported on the ground that this protects the family 
as a moral, social institution,10 this argument fails wholly 
if there is no family involved. In the case of an action 
for the wrongful death of the mother, there is by definition 
no family to protect. Nor might one suppose that the 
illegitimate mother loved her children less by reason of 
their illegitimate status. Even if this were so, there would 
be no relevant relation between the mother’s love and her 
children’s right to recover from a tortfeasor for their 
mother’s wrongful death. If these arguments seem far 
afield, no better arguments support the discrimination im­
posed under the Louisiana statute.

On the contrary, not only are there no rational reasons 
in favor of discriminating against illegitimates under the 
Louisiana statute, but good reasons favor the opposite 
result. What indeed is the purpose of the Wrongful Death 
Act? Its purpose is to rectify the injustice imposed by 
the old common law which held that tort actions died with 
the victim and which denied a person dependent on the

10 See Krause, Equal Protection for the Illegitimate>, supra at 492-95.



14

victim to recovery from the tortfeasor for his loss of 
support.

This benefit inures not only to the person entitled to 
recover, but also relieves the public of a potential welfare 
burden—quite aside from the policy questions involved 
in letting a tortfeasor go free. It needs no elaboration 
that the question of the legitimacy status of children living 
with, dependent on and entitled to support from their 
mother who met a tortious death is wholly irrelevant with 
respect to these purposes. Indeed, the purposes of the 
statute under review actually would be served better if 
the action of the illegitimate claimant were allowed. In 
this connection it should be noted again that the Louisiana 
statute does not on its face discriminate against illegiti­
mates, but that the courts have superimposed this inter­
pretation upon the statute. It is significant that Loui­
siana’s "Workmen’s Compensation Act, which is a similar 
“welfare” statute also intended to compensate for loss of 
support, has been interpreted to allow illegitimate children 
to recover for the death of even their father, if dependent 
on him and living in his household.11

11 La. Rev. Stat. 5 23:1021(3) (1964) defines child as not including 
an illegitimate child unless acknowledged. However, § 23:1253 has been 
interpreted to allow the illegitimate child to recover as a dependent if 
living in the workman’s household. The distinction is that since the 
illegitimate does not qualify under § 23:1021(3), he must prove his 
dependency upon the workman, whereas the legitimate who qualifies 
under § 23:1021(3) merely must prove that he lived with the workman 
from which fact his dependency would be presumed. In practical effect, 
this distinction is one without serious difference. See Note, 20 Tul. L. Rev. 
145 (1945). The Wrongful Death Act discrimination against the illegiti­
mate met with the non-diseriminatory interpretation of the Louisiana 
Workmen’s Compensation Act in Board of Comm’rs. v. City of New 
Orleans, 223 La. 199, 65 So. 2d 313 (1954). Plaintiff had been the em­
ployer of deceased and sued to recover indemnification from the tort­
feasor after being held liable to the illegitimate child of the deceased 
under the Workmen’s Compensation Act. Defendant contended that the



15

In its 1965 amendments to the Social Security Act, Con­
gress recognized that the purpose of welfare statutes is 
thwarted by discrimination against illegitimates and ended 
previous reliance on state law definitions of the term 
“child” and similar operative words which often had re­
sulted in discrimination against illegitimates.12

III.

Historical Accident—-The True Reason for the Dis­
criminatory Interpretation of the Louisiana Wrongful 
Death Act.

How then may it be explained that the Louisiana courts 
have consistently interpreted the Wrongful Death Act 
against the illegitimate? Instead of being supported by a 
purpose that is rational in the light of this century, the 
basis for the discriminatory interpretation of the Louisiana 
statute lies in its history. The earliest case employing the 
rule was Lynch v. Knoop, 118 La. 611, 43 So. 151 (1907), in 
which a mother of an illegitimate child was denied recovery 
for the wrongful death of her child. The court stressed the

employer could not recover because the illegitimate child had no action 
under § 2315. The court acknowledged that the child would have no action 
under § 2315, but held that this did not bar the employer’s suit against the 
defendant, because to obtain indemnification, under the Workmen’s Com­
pensation Act, the employer asserts the cause of action that arose orig­
inally in favor of the employee rather than that of the beneficiary under 
the Wrongful Death Act.

13 In essence, the new section (64 Stat. 492 (1950), as amended, 42 
U.S.C. § 416(h) (3) (1965)) provides that:

“ an applicant will be considered the child of the worker if  the worker 
(1) has acknowledged in writing that he is the child’s father; (2) has 
been decreed by a court to be the child’s father; (3) has been 
ordered by a court to contribute to the support of the child because 
he is the child’s father; or (4) is shown by other evidence satisfactory 
to the Secretary to be the child’s father and has been living with or 
contributing to the support of the child.”  S. Rep. No. 404, 89th 
Cong., 1st Sess. 267 (1965).



16

legal distinction between the inheritance rights of legitimate 
and illegitimate children and noted that, since the statute 
is in derogation of the common law (at common law the 
action of the deceased would not survive), it must be con­
strued strictly and the term “ child” limited to a legitimate 
child. This interpretation of the statute continues today, 
but now the Louisiana courts no longer search for reasons 
and mechanically apply the rule excluding illegitimates 
from the benefit provided under the Wrongful Death Act.13

Ironically, the French law after which the Louisiana 
Code was patterned not only had no equivalent to the 
common law rule under which tort actions died with the 
victim, but the basic tort provision of the French Code 
had been specifically interpreted to allow the tort right of 
action to survive the death of the victim prior to the adop­
tion of the identical tort provision in Louisiana.14 Erhard 
v. Uttwiller [1809-1811], S. Jur. II 223 (Cour d’appel, 
Colmar, March 3, 1810); Rolland v. Gosse [1815-18], S. 
Jur. I 540 (Cass. civ. Nov. 5, 1818). For no discernible 
reason the Louisiana court rejected the French interpreta­
tion and instead adopted the common law view, holding 
that without a specific statute no action could lie for 
wrongful death. Hubgh v. N.O. & C.R.R., 23 La. (6 La.

13 Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926 (1907) ; 
Landry v. American Creosote Works, 119 La. 231, 43 So. 1016 (1907); 
Sebostris Youchican v. Texas & P. By., 147 La. 1080, 86 So. 561 (1920); 
Green V. New Orleans S eft G.I.B. Co., 141 La. 120, 74 So. 717 (1917); 
Navarrette v. Joseph Laughlin, Inc., 20 So. 2d 313 (La. Ct. App. 1944), 
reversed on other grounds, 209 La. 417, 24 So. 2d 672 (1946); Thompson 
v. Vestal Lumber (& Mfg. Co., 208 La. 83, 22 So. 2d 842 (1945); Evans 
V. United States, 100 F. Supp. 5 (W.D. La. 1951); Board, of Comm’rs. v. 
City of New Orleans, supra n. 11; Jackson v. Lindlom, 84 So. 2d 101 
(La. Ct. App. 1955); Benjamin v. Hardware Mutual Casualty Co., 244 
F. Supp. 652 (W.D. La. 1965); Glona v. American Guaranty & Liability 
Insurance Company et al., 379 F.2d 545 (5th Cir. 1967).

14 The basic French torts provision, Code Civil art. 1382, was taken 
over into Louisiana law as the first sentence of La. Civ. Code art. 2315.



17

Ann.) 495, 496-97, 54 Am. Dec. 565, 567 (1851). In response 
to this interpretation, Louisiana added to its law the 
predecessor statute to its current Wrongful Death Act. 
See Voss, The Recovery of Damages for Wrongful Death 
at Common Law, at Civil Law, and in Louisiana, 6 T u l , L. 
R e v . 201, 221 (1932). But French law indirectly came back 
in the interpretation that was later given the Wrongful 
Death Act which discriminated against the illegitimate 
with regard to his relation with his natural mother. While 
a number of wrongful death statutes in other states dis­
criminate against illegitimates insofar as recovery for the 
wrongful death of the father is concerned, the illegitimate 
child’s relation to its mother usually is legally complete 
upon birth. Discrimination with respect to the mother’s 
relation to her child is unique to Louisiana law,15 and 
apparently, came to Louisiana from French law. While 
nearly all other legal systems base the legal relationship 
between mother and illegitimate child on the fact of birth, 
French and Louisiana law to this day require that mater­
nity be formally established by the mother’s acknowledg­
ment or by a maternity suit. See Savatier, L’evolution de 
la condition juridique des enfants naturels en droit frangais 
37,41-42 in Dabin, L e statut juridique de l ’enbant naturbe 
(1965). Lasok, Legitimation, Recognition and Affiliation 
Proceedings, 10 I n t . & Comp. L. Q. 123, 127-28 (1961); 
Cf. L a . Civ. Code arts. 203, 241 (1) (Slovenko 1961).16 
The confusion is total because French law itself does

15 The Georgia Wrongful Death Act was amended in 1960 to allow a 
dependent, illegitimate child to recover for the wrongful death of his 
mother. Ga . Stat. A nn . § 105-1306 (Supp. 1966).

16 The peculiar French requirement of formal maternal acknowledg­
ment dates from the time of Henri IV  who, to discourage a wide-spread 
practice of child abandonment and substitution, ordered that maternity be 
specifically established. See Miiller-Freienfels in 2 V erhandlungen des 
V ierundvierzigsten Deutschen Juristentages, Sitzungsberichte at C105 
(1964).



18

allow the illegitimate to recover for the wrongful death 
of his mother and even his father. Min. publ. et cons. 
Scherriff v. Sansen [1954] D. Jur. 176 (Cour d’appel, 
Douai, Dec. 10, 1953) ■ Beinheir Ben M’Bctrk et Cie v. Dame 
Bousquet [1954], D. Jur. 777 (Cour d’appel, Rabat, Nov. 12, 
1954). See 1 Mazeaud and Tunc, T raite ti-ieorique et

PRATIQUE DE LA RESPONSABILITE CIVILE DELICTUELLE ET CON-
tractuelle 372 et seq. (5th ed. 1957).

IV.

Racial Discrimination.

In addition to the overt discrimination on the basis of 
the criterion of illegitimacy, the Louisiana Wrongful Death 
Act covertly discriminates on the basis of race. While 
the statute employs no racial criterion on its face, it 
operates far more severely upon Negroes as a class than 
it does upon whites. This covert discrimination comes 
about in two ways. First, disproportionately more Negro 
children than white children are born out of wedlock.17

17 Nationally, in 1963, the Vital Statistics Division of the Public Health 
Service, U.S. Department of Health, Education and Welfare, estimated 
that the white illegitimacy rate was 30.7 per 1,000 live births; the non­
white rate was 235.9. (While the non-white classification includes 
Orientals, Indians and Negroes, Negroes so predominate numerically 
(more than 90%) that the non-white classification reflects the Negro 
figure with reasonable accuracy. U.S. Bureau of the Census, Statistical 
Abstract of the United States 28 (1967).) See United States Department 
of Labor, Office o f Policy Planning and Research, The Negro Family 
The Case for National Action (hereafter referred to as The Moynihan 
Report) 8-9, 59. By 1965, the white rate was 39.6 and the Negro rate 
was 263.2 per thousand live births. U.S. News and World Report, Oct. 2, 
1967 at 84. These figures drastically understate the problem, for among 
the impoverished urban Negroes the illegitimacy rate has been rising 
much faster than it has risen nationally. In the District of Columbia, 
the illegitimacy rate for non-whites grew from 21.8 percent in 1950, to 
29.5 percent in 1964. The Moynihan Report at 9. In impoverished areas 
o f the District the 1963 rate was 38 percent. Id. at 70. In Harlem, the



19

In Louisiana in 1965, the U.S. Department of Health, 
Education and Welfare reported, 8,276 illegitimate children 
were horn to Negroes and 1,158 were born to whites. 
U.S. News and World Report, Oct. 2, 1967 at 85.

The second and even more important reason that makes 
the statute disproportionately more burdensome for Ne­
groes than for whites is that a high percentage (70%) of 
white illegitimate children are adopted and thereby achieve 
status under the Wrongful Death Act, at least with regard 
to their adoptive parents, whereas very few (3-5%) Negro 
illegitimates find adoptive parents.18

Griffin v. County School Board, 377 U.8. 218 (1964), in­
volved a comparable point because, on its face, the closing 
of the public schools of Prince Edward County to white 
and Negro children was not discriminatory. However, this 
Court unanimously held the school closing “to deny colored 
students equal protection of the laws” because “ (c)losing 
Prince Edward’s schools bears more heavily on Negro chil­
dren in Prince Edward County since white children there 
have accredited private schools which they can attend while 
colored children until very recently have had no available 
private schools, and even the school they now attend is a 
temporary expedient.” I f the uneven numerical incidence 
of illegitimacy among Negroes and whites in itself pro­

non-white illegitimacy rate in 1963 was more than 43 percent. Id. at 19. 
In some areas of Chicago, the illegitimacy rate stands at 38 percent. 
Champaign-Urbana [Illinois] News Gazette, Feb. 14, 1966, p. 13.

18 “ Of an estimated 2.5 million surviving children registered as illegiti­
mate at birth from 1940 through 1957, 1 million were white and 1.5 
million, nonwhite. . . . Possibly as many as 70 percent of all white 
illegitimate children are given for adoption, but only between 3 and 5 
percent of the nonwhite illegitimate children are adopted. Some children 
are legitimated through marriage of their parents. Although no estimate 
is available the number is believed to be too small to affect the percentage 
distribution.”  U. S. Department of Health, Education and Welfare, 
Illegitimacy and its Impact on the Aid to Dependent Children Program 
35-36 (1960).



20

vides a reasonable analogy, the fact that that adoption 
facilities are open and widely utilized by white illegitimates 
improves the analogy. The analogy is perfected by a 
Louisiana statute which forbids interracial adoption and 
thereby closes to Negroes, solely on the ground of race, 
one method of escape from the discrimination under the 
Wrongful Death Act. La. Rev. Stat. 9:422. The combina­
tion of this statute with the wrongful death statute in ques­
tion here denies equal protection of the laws in violation 
of the Fourteenth Amendment.

Applying the national percentage on white adoptions 
(70%) and non-white adoptions (4%) to the 1965 Louisi­
ana illegitimacy figures (1,158 white, 8,276 N egro); only 347 
white children remain unadopted, whereas 7,945 Negro 
children remain unadopted. This means that 95.8 percent 
of all persons affected by the operation of the Louisiana 
Wrongful Death Act are Negroes. For all practical pur­
poses this means that the criterion of illegitimacy as used 
under the Louisiana Wrongful Death Act is synonymous 
with a racial classification.

It is not contended, of course, that the construction of 
the Louisiana statute against illegitimates, at least in its 
inception, had a racially discriminatory intent. Nor is it 
contended that a statute which happens to fall most heavily 
upon one particular group is for that reason alone un­
constitutional. However, this Court need not ignore the 
fact that Louisiana is a Southern state with a long history 
of racial discrimination and that the operation of the 
Wrongful Death Act, if accidentally, fits perfectly into a 
pattern of legislation which often is only a thinly disguised 
cover for racial discrimination. For example, in 1960 
Louisiana amended its constitution to deny the right to 
vote in federal and state elections for a period of five



21

years, after the birth of an illegitimate child, to both par­
ents of an illegitimate child. Louisiana Constitution, art. 
8, §*1(5), (6).19

V.

Due Process.

The interpretation given the Wrongful Death Act by the 
Louisiana courts also violates the Due Process Clause of 
the Fourteenth Amendment to the United States Constitu­
tion. Much of the above discussion under the Equal Pro­
tection Clause and specifically the inquiry into the purposes 
of the Louisiana statute, is applicable under the Due Proc­
ess Clause as well. Suffice it to add here that if Loving v. 
Virginia, supra, held that the miscegenation statute was 
invalid under the Due Process Clause because “the freedom 
to marry has long been recognized as one of the vital per­
sonal rights essential to the orderly pursuit of happiness 
by free men,” a child’s right to a legally recognized rela­
tionship with his own mother should be considered a still 
more “basic civil right of man” than the right to marry. 
See Griswold v. Connecticut, 381 U.S. 479, 492 (1965).

In this connection, it is relevant to observe how other 
civilized nations approach the problems created by cen­
turies of discrimination imposed on the person of illegiti­
mate birth. Cf. Wolf v. Colorado, 338 TJ.S. 25 (1948).

19 See supra, note 8. Cf. Willie Earl Carthan v. State Board of Ed­
ucation, Civil Action No. 3814, United States District Court, Southern 
District of Mississippi, Jackson, Mississippi Division, in which a tempo­
rary injunction was issued against the enforcement of a state statute 
which, by assessing a tuition fee, sought to exclude from the public 
school system children who were not living with their natural parents. 
This was disproportionately oppressive of the Negro community because 
considerable numbers of parents had migrated to Northern communities 
and had left their children behind with relatives.



22

The illegitimate’s demand for a measure of equality in­
creasingly is being recognized as a basic human right. In 
January, 1967, a subcommission of the Commission on Hu­
man Eights of the United Nations adopted a statement on 
“ General Principles on Equality and Non-Discrimination 
in Eespect of Persons Born Out of Wedlock” which de­
mands that “ every person, once his filiation has been es­
tablished, shall have the same legal status as a person born 
in wedlock.” 20 This effort in the United Nations reflects 
active and extensive movements toward reform of the law 
of illegitimacy that are under way in many countries. For 
example, the Scandinavian countries have long granted 
substantially equal rights to the illegitimate.21 In 1915, 
Norwegian law set the pace by establishing substantial 
equality for the illegitimate child in his legal relationship 
to his mother and father. The early statute was super­
seded by the Norwegian Law of December 21, 1956, con­
cerning children born out of wedlock which abolished nearly 
all remaining legal distinctions between legitimate and il­
legitimate children.22 [1956, Part 2] Norsk Lovtidend 882, 
No. 10. The Danish Law of May 18, 1960, concerning the 
rights of children broadly deals with the rights of legiti­
mate and illegitimate children and does not distinguish be­
tween them.23 Among other things, it provides an equal 
right of support and very effective means to ascertain

20 Sub-Commission on Prevention of Discrimination and Protection of 
Minorities of the Commission on Human Rights, United Nations Economic 
and Social Council, Study o f Discrimination against Persons Born out of 
Wedlock: General Principles on Equality and Non-Discrimination in Re­
spect of Persons Born out of Wedlock, U-.N. Doc. E/CN. 4 Sub. 2/L. 453 
(13 Jan. 1967).

21 See Danish Committee on Comparative Law, Danish and Norwegian 
Law 55 (1963).

22 See Arnholm, New Norwegian Legislation Relating to Parents and 
Children, in 3 Scandinavian Studies in Law 11, 12-20 (1959).

23 See Marcus, Das neue ddnische Kindergesetz, 26 Rabels Zeitscheift 
EUR AUSLANDISCHES UND INTERNATIONALES PrIVATRECHT 51 (1966).



23

paternity. [I960, Part A ] Lovtidende 603, No. 200. The 
Swedish Law of June 10, 1949, concerning the legal situa­
tion of parents did not go quite as far, hut does provide an 
equal right of support for the illegitimate child. [1949] 
Forfattningssammling 729, No. 381.

The 1949 Constitution of West Germany contains the 
following provision: “ Illegitimate children shall, through 
legislation be given the same conditions for their physical 
and spiritual development and their position in society as 
legitimate children.” German Fed. Eep. Const, art. V I (5). 
To comply with this constitutional requirement the German 
Ministry of Justice has drafted a reform proposal which 
presently is under active consideration.24 Refer entenent- 
wurf eines Gesetzes uber die rechtliche Stellung der 
unehelichen Kinder (Unehelichengesetz) Bundesjustizmin- 
isterium, Bonn 1966. Similarly, the Austrian government 
has proposed a bill that would realize substantial equality.25 
Regierungsentwurf eines Bundesgesetzes uber die Neuord- 
nung der Rechtsstellung des unehelichen Kindes, dated June 
16, 1965, No. 763 der Beilage zu den stenographischen Pro- 
tokollen des Nationalrates X.GP. In Switzerland the report 
of an official committee proposes substantially improved 
means of ascertaining paternity of illegitimates and offers 
inheritance rights with respect to the father.26 Bericht der 
Studienkommission fur die Teilrevision des Familienrechts

24 See Knopfel, Der Referentenentwurf eines Gesetzes fiber die recht­
liche Stellung der unehelichen Kinder, 13 Zeitschrift fur das gesamte 
F amilienrecht 273 (1966); Miiller-Freienfels, Das Recht des ausserehe- 
lichen Kindes und seine Reform, in von Caemmerer and Zweigert, Deut­
sche Landesreferate zum VII. I nternationalen K ongress fur 
Rechtsvergleichung in Uppsala 1966 149 (1967).

26 See Gschnitzer, Grundsatzliches zur Neuordnung der Rechtsstellung 
des unehelichen Kindes, 88 Juristische Blatter 393 (1966).

26 See Hegnauer, Die Revision der Gesetzgebung ueber das ausserehe- 
liche Kindesverhaltnis, New Series 84 Part 2 Zeitschrift fur Schwei- 
zerisches Recht 1, 36 (1965).



24

(Ausserehelichen-, Adoptions - und Eheguterrecht) erstat- 
tet dem Eidgenossischen Justiz - und Polizeidepartment am 
6/13/1962 (mimeographed).

In Great Britain, the Report of the Committee on the 
Laiv of Succession in Relation to Illegitimate Persons, 
Cmnd. 3051, London 1966, proposes a broad reform of the 
illegitimate child’s right of inheritance that would grant a 
right of intestate succession with regard to the father as 
well as the mother.27 In New Zealand, the position of the 
illegitimate child, at least in the area of public law, has 
been made largely equivalent to that of the legitimate child. 
4 Robson, B eitish Commonwealth, New Zealand 333 
(1954).

Many countries of Latin America have provisions for 
legal equality of legitimate and illegitimate children. For 
example, the Bolivian constitution provides that “inequali­
ties among children are not recognized; they all have the 
same rights and duties.”  Constitution art. 183 (Pan Ameri­
can Union, Constitution of the Republic of Bolivia 1961 
(1963)). Ecuador’s constitution gives the illegitimate rights 
of support and inheritance. Constitution art. 164 (Pan 
American Union, Constitution of the Republic of Ecuador 
1946 (1961)). Guatemala’s constitution provides that “ (a) 11 
children are equal before the law and have identical rights” 
and that “ (t)he law shall establish the means of proof in 
investigating paternity.” Constitution art. 86 (2), (3) (Pan 
American Union, Constitution of the Republic of Guatemala 
1965 (1966)). Panama’s constitution provides that “Parents 
have the same duties toward children born out of wedlock 
as toward those born in it. All children are equal before

27 See Lasok, Family Law Reform in England, 8 W l .  & Mart L. Rev. 
589, 622 (1967); Stone, Report of the Committee on the Law of Succes­
sion in Relations to Illegitimate Persons, 30 Modern Law Review 552 
(1967).



25

the law and have the same hereditary rights in intestate 
succession.” Constitution art. 58 (Pan American Union, 
Constitution of the Republic of Panama 1946 (1962)). 
Uruguay’s constitution contains the following provision: 
“ Parents have the same duties toward children horn out­
side of wedlock as toward children born within it.” Consti­
tution art. 42 (Pan American Union, Constitution of the 
Republic of Uruguay 1967 (1967)).

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment of the Court below should be reversed.

H arry D. K rause
2009 Cureton Drive 
Urbana, Illinois 61801

Jack Greenberg 
Leroy D. Clark

10 Columbus Circle
New York, New York 10019

Counsel for the NAACP Legal Defense 
and Educational Fund, Inc., and the 
National Office for the Rights of the 
Indigent

December, 1967



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