# Boddie v. Connecticut/Concurrence Douglas

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United States Supreme Court
401 U.S. 371
Boddie v. Connecticut
Argued: Dec. 8, 1969. --- Decided: Nov 17, 1970
Mr. Justice DOUGLAS, concurring in the result.
I believe this case should be decided upon the principles developed in the line of cases marked by Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. There we considered a state law which denied persons convicted of a crime full appellate review if they were unable to pay for a transcript of the trial. Mr. Justice Black's opinion announcing the judgment of the Court stated:
'Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of a trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Id., at 19, 76 S.Ct. at 591.
Griffin has had a sturdy growth. 'Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.' Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 196, 19 L.Ed.2d 41; See also Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440; Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899. But Griffin has not been limited to securing a record for indigents who appeal their convictions. If the more affluent have counsel on appeal, then counsel for indigents must be provided on appeal of a criminal conviction. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The tie to Griffin was explicit. 'In either case (Griffin or Douglas) the evil is the same: discrimination against the indigent.' Id., at 355, 83 S.Ct. at 816.
In Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 we invalidated a procedure whereby cases within the jurisdiction of the state supreme court would not be considered if a person could not pay the filing fee. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, we held that requiring indigents to pay filing fees before a writ of habeas corpus could be considered in state court was invalid under the Equal Protection Clause. Here Connecticut has provided requirements for married couples to obtain divorces and because of filing fees and service of process one of the requirements is having the necessary money. The more affluent can obtain a divorce; the indigent cannot. This situation is comparable to Burns v. Ohio, and Smith v. Bennett.
The Due Process Clause on which the Court relies has proven very elastic in the hands of judges. 'The doctrine that prevailed in Lochner (v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937), Coppage (v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441), Adkins (v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785), (Jay) Burns (Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813), and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded.' Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93. I would not invite its revival.
Whatever residual element of substantive law the Due Process Clause may still have (Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654), it essentially regulates procedure. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; Wisconsin v. Constantineau, 400 U.S. 443, 91 S.Ct. 507, 27 L.Ed.2d 515. The Court today puts 'flesh' upon the Due Process Clause by concluding that marriage and its dissolution are so important that an unhappy couple who are indigent should have access to the divorce courts free of charge. Fishing may be equally important to some communities. May an indigent be excused if he does not obtain a license which requires payment of money that he does not have? How about a requirement of an onerous bond to prevent summary eviction from rented property? The affluent can put up the bond, though the indigent may not be able to do so. See Williams v. Shaffer, 385 U.S. 1037, 87 S.Ct. 772, 17 L.Ed.2d 683. Is housing less important to the mucilage holding society together than marriage? The examples could be multiplied. I do not see the length of the road we must follow if we accept my Brother HARLAN'S invitation. The question historically has been whether the right claimed is 'of the very essence of a scheme of ordered liberty.' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. That makes the test highly subjective and dependent on the idiosyncrasies of individual judges as Lochner, Coppage, and Adkins illustrate.
The reach of the Equal Protection Clause is not definable with mathematical precision. But in spite of doubts by some, as it has been construed, rather definite guidelines have been developed: race is one (Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222); alienage is another (Takahashi v. Fish & Game Comm'n., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478); Religion is another (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965); poverty is still another Griffin v. Illinois, supra); and class or caste yet another (Skinner v. Oklahoma, ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655).
The power of the States over marriage and divorce is, of course, complete except as limited by specific constituny divorces to domiciliaries who were Negroes and grant them to whites? Deny them to resident aliens and grant them to citizens? Deny them to Catholics and grant them to Protestants? Deny them to those convicted of larceny and grant them to those convicted of embezzlement?
Here the invidious discrimination is based on one of the guidelines: poverty.
An invidious discrimination based on poverty is adequate for this case. While Connecticut has provided a procedure for severing the bonds of marriage, a person can meet every requirement save court fees or the cost of service of process and be denied a divorce. Connecticut says in its brief that this is justified because 'the State does not favor divorces; and only permits a divorce to be granted when those conditions are found to exist in respect to one or the other of the named parties, which seem to the legislature to make it probable that the interests of society will be better served and that parties will be happier, and so the better citizens, separate, than if compelled to remain together.'
Thus, under Connecticut law divorces may be denied or granted solely on the basis of wealth. Just as denying further judicial review in Burns and Smith, appellate counsel in Douglas, and a transcript in Griffin created an invidious distinction based on wealth, so, too, does making the grant or denial of a divorce to turn on the wealth of the parties. Affluence does not pass muster under the Equal Protection Clause for determining who must remain married and who shall be allowed to separate.

## Notes

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