# Weber v. Aetna Casualty & Surety Company/Dissent Rehnquist

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* Opinion of the Court
* Concurring Opinion Blackmun
* Dissenting Opinion Rehnquist
[p177] MR. JUSTICE REHNQUIST, dissenting.
This case is distuinguishable from Levy v. Louisiana, 391 U.S. 68 (1968), and could be decided the other way on the basis of this Court's more recent decision in Labine v. Vincent, 401 U.S. 532 (1971). Yet I certainly do not regard the Court's decision as an unreasonable drawing of the line between Levy and Labine, and would not feel impelled to dissent if I regarded Levy as rightly decided. I do not so regard it. I must agree with Mr. Justice Harlan's dissenting opinion, which described Levy and its companion case, Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73 (1968), as "constitutional curiosities," and called the Court's method of reading the result "a process that can only be described as brute force." Id., at 76.
Since Levy was a constitutional holding, its doctrine is open to later re-examination to a greater extent than if it had decided a question of statutory construction or some other nonconstitutional issue. See Coleman v. Alabama, 399 U.S. 1, 22 (1970) (BURGER, C.J., dissenting); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 259 (1970) (Black, J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-410 (1932) (Brandeis, J., dissenting).
[p178] The Equal Protection Clause was adopted as a part of the Fourteenth Amendment in 1868. Five years later Mr. Justice Miller delivered this Court's initial construction of that amendment in his classic opinion in Slaughter-House Cases, 16 Wall. 36 (1873). After setting forth an account of the adoption of that amendment, he described the account as a "recapitulation of events, almost too recent to be called history, but which are familiar to us all." 16 Wall., at 71. Referring to the Equal Protection Clause, he said:
   "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." 16 Wall., at 81.
In nearly 100 years of subsequent adjudication concerning this clause, the Court has adhered to the notion expressed in the Slaughter-House Cases that racial classifications are "suspect." See, e.g., Loving v. Virginia, 388 U.S. 1 (1967). But during that same period of time, this Court has proved Mr. Justice Miller a bad prophet with respect to nonracial classification.
As noted in Levy, in the field of economic and social legislation, the Court has given great latitude to the legislatures in making classifications. Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); Morey v. Doud, 354 U.S. 457 (1957). The test has been whether there is any rational basis for the legislative classification. See Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 556 (1947). "State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 425-426 [p179] (1961). Under this test, so long as the "discrimination is founded upon a reasonable distinction, or difference in state policy," Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959), the Court will not attempt to weigh its social value or determine whether the classification might have been more finely drawn. Ferguson v. Skrupa, 372 U.S. 726 (1963). However, this salutary principle has been departed from by the Court in recent years, as pointed out in its opinion here, where the Court has felt that the classification has affected what it conceives to be "fundamental personal rights."
The difficulty with this approach, devoid as it is of any historical or textual support in the language of the Equal Protection Clause, is that it leaves apparently to the Justices of this Court the determination of what are, and what are not, "fundamental personal rights." Those who framed and ratified the Constitution and the various amendments to it chose to select certain particular types of rights and freedoms, and to guarantee them against impairment by majority action through legislation or otherwise. While the determination of the extent to which a right is protected may result in the drawing of fine lines, the fundamental sanction of the right itself is found in the language of the Constitution, and not elsewhere. The same is unfortunately not true of the doctrine of "fundamental personal rights." This body of doctrine created by the Court can only be described as a judicial superstructure, awkwardly engrafted upon the Constitution itself.
The Court's experience with similar superstructures has not been a happy one. The first part of this century saw the evolution of the doctrine of "freedom of contract" which was held by the Court during part of that time to be a part of the Fourteenth Amendment's requirement that no person be deprived of life, liberty, or property without due process of law. This doctrine [p180] had its just desserts in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937), where Mr. Chief Justice Hughes, speaking for the Court, said:
   "The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law."
In a similar vein it may be said that the Constitution does not speak of "fundamental personal rights," but speaks of the equal protection of the laws and prohibits the denial thereof. Two years ago, this Court in Dandridge v. Williams, 397 U.S. 471 (1970), recognized that the broad latitude accorded state legislatures by both the contemporary history and the text of the Equal Protection Clause was not limited to statutes regulating business or industry. There, in a case dealing with the administration of public welfare assistance which, the Court noted, "involves the most basic economic needs of impoverished human beings," the Court nonetheless quite properly applied the "rational basis" constitutional standard. 397 U.S., at 485. It reaffirmed the historically correct statement of the meaning of equal protection in these words:
   "In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with [p181] mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78. "The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unrealistic.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426."
The Court in today's opinion, recognizing that two different standards have been applied in equal protection cases, apparently formulates a hybrid standard which is the basis of decision here. The standard is a two-pronged one:
   "What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?"
Surely there could be no better nor more succinct guide to sound legislation than that suggested by these two questions. They are somewhat less useful, however, as guides to constitutional adjudication. How is this Court to determine whether or not a state interest is "legitimate"? And how is the Court to know when it is dealing with a "fundamental personal right"?
While the Court's opinion today is by no means a sharp departure from the precedents on which it relies, it is an extraordinary departure from what I conceive to be the intent of the framers of the Fourteenth Amendment and the import of the traditional presumption of constitutionality accorded to legislative enactments. Nowhere in the text of the Constitution, or in its plain implications, is there any guide for determining what is a "legitimate" state interest, or what is a "fundamental personal right." The traditional police power of the [p182] States has been deemed to embrace any measure thought to further the well-being of the State in question, subject only to the specific prohibitions contained in the Federal Constitution. That Constitution of course contains numerous guarantees of individual liberty, which I would have no trouble describing as "fundamental personal liberties," but the right of illegitimate children to sue in state court to recover workmen's compensation benefits is not among them.
The relationship of the "legitimate" state interest and "fundamental personal right" analysis to the constitutional guarantee of equal protection of the law is approximately the same as that of "freedom of contract" to the constitutional guarantee that no person shall be deprived of life, liberty, or property without due process of law. It is an invitation for judicial exegesis over and above the commands of the Constitution, in which values that cannot possibly have their source in that instrument are invoked to either validate or condemn the countless laws enacted by the various States. In refusing to accept the breadth of meaning of the Fourteenth Amendment urged upon the Court in the Slaughter-House Cases, Mr. Justice Miller said:
   "And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment." 16 Wall., at 78.
Mr. Harlan made clear in his dissent in Levy the exclusively statutory basis for wrongful-death actions as a matter of legal history, and the same may be even more emphatically said about claims for workmen's [p183] compensation benefits. In spite of the Court's statement of a test, one part of which requires the determination of the extent to which "fundamental personal rights" might be endangered by the Louisiana classification here, we are nowhere told in the opinion just what "fundamental personal right" it is that is involved, to say nothing of whether it is "endangered." The Court says that, while society has long condemned "irresponsible liaisons beyond the bonds of marriage," nonetheless "visiting this condemnation on the head of an infant is illogical and unjust." A fair-minded man might regard it as both, but the Equal Protection Clause of the Fourteenth Amendment requires neither that state enactments be "logical" nor does it require that they be "just" in the common meaning of those terms. It requires only that there be some conceivable set of facts that may justify the classification involved.
In the instant case I cannot condemn as irrational Louisiana's distinction between legitimate and illegitimate children. In a statutory compensation scheme such as this, the State must inevitable draw rather fine and arbitrary lines. For example, Louisiana declares that parents will have priority in this scheme over first cousins, regardless of the degree of dependency or affection in any given case. Surely, no one would condemn this classification as violative of the Fourteenth Amendment, since it is likely to reflect fairly the unarticulated intent of the decedent. Similarly, the State might rationally presume that the decedent would have preferred the compensation to go to his legitimate children, rather than those illegitimates whom he has not acknowledged.
Although the majority argues that "the state interest in minimizing problems of proof is not significantly disturbed by our decision," ante, at 175 (emphasis added), it clearly recognizes, as it must, that under its decision [p184] additional and sometimes more difficult problems of proof of paternity and dependency may be raised. This is particularly true with respect to petitioner's youngest child, who was not born until after the death of his father. I believe that a State's desire to lessen these problems under its statutory scheme is a rational basis for difference in treatment of the two classes.
Finally, the majority apparently draws some comfort from the fact that the illegitimate children here could not have been acknowledged, since the decedent remained married to another woman while he raised these children. However, I do not believe that it follows from this fact that the statutory classification is irrational. On the contrary, this element of the statutory scheme points up another possible legislative purpose which I do not believe this Court should so freely dismiss. Louisiana, like many other States, has a wide variety of laws designed to encourage legally recognized and responsible family relationships. I believe this particular statutory provision, forbidding acknowledgment of illegitimate children when the parents were not free to marry (in this case because the father was already married to another woman), might be considered part of that statutory pattern designed to discourage formation of illicit family relationships. Whether this is a wise state policy, and whether this particular statute will be particularly effective in advancing it, are not matters for this Court's determination.
Levy and today's decision are not only inconsistent with the long line of earlier cases construing the Equal Protection Clause to forbid only irrational classifications; they are quite inconsistent with Dandridge v. Williams, supra, decided two years before Levy. If state welfare legislation involving "the most basic economic needs of impoverished human beings" is to be judged by the traditional "reasonable basis standard", I am at a [p185] loss to see why that standard should not likewise govern legislation determining eligibility for state workmen's compensation benefits.
All legislation involves classification and line drawing of one kind or another. When this Court expands the traditional "reasonable basis" standard for judgment under the Equal Protection Clause into a search for "legitimate" state interests that the legislation may "promote," and "for fundamental personal rights" that it might "endanger," it is doing nothing less than passing policy judgments upon the acts of every state legislature in the country.