Warren E. Burger: We’ll hear arguments next in 5257, Labine against Vincent. Mr. Cox?
James J. Cox: Mr. Chief Justice and may it please the Court. This case involves the Equal Protection rights of an 8-year-old Negro girl from Lake Charles Louisiana who was the daughter of the decedent Ezra Vincent. Ezra Vincent died without having left a will but he bequeathed upon his child a formal proof of the child’s ancestry by a formal active acknowledgment before a notary public which was recorded in the division of public health statistics along with the child’s birth certificate which corroborated proof of parentage of Ezra Vincent of the child Rita Nell Vincent.
Warren E. Burger: Mr. Cox, in many if not most states, that kind of acknowledgment suppose is the whole question?
James J. Cox: As rightly said, Your Honor.
Warren E. Burger: Well, I mean as a matter of statute? Statute expressly provides that the acknowledgment as the consequence of establishing legitimacy but Louisiana statute --
James J. Cox: Does not Your Honor. Mr. Chief Justice Burger, I think this is the crux and the real issue of the case. It’s not a question of whether or not of a state as was so aptly put in Justice Harlan’s dissent in the Levy and Glona cases has the right to require a formal burden of proof standards or criteria which are meaningful and relevant in determining the question of the state's application of its laws but in this case, no matter what burden of proof is met by this particular child, because of the fact that the child is saddled with the stigma of illegitimacy, this child can inherit nothing and in fact as what in effect is a different standard of requesting support from the decedent’s state. This particular child had much better proof of her relationship to the decedent Ezra Vincent than did the brothers and sisters of the decedent who came from Washington DC and other far away places to claim the decedent’s estate and were granted the decedent’s estate by all of the Louisiana Courts. These brothers and sisters could produce no marriage license to show that their parents were married. They could produce no birth certificates to show they were children of the same parent as the decedent Ezra Vincent. Their reputation proof was extremely sketchy. None of the witnesses other than family members, the brothers and sisters themselves could recite the names of the brothers and sisters of the decedent and yet the Louisiana Courts because of its faulty burden of proof situation and because of its traditional prejudice against illegitimates rather awarded the estate to the brothers and sisters than to the little child.
Potter Stewart: Suppose the brothers and sisters were rather aged people weren’t they?
James J. Cox: They were Your Honor and in fairness --
Potter Stewart: The father was 70, her father who acknowledged --
James J. Cox: Yes.
Potter Stewart: -- this child was his child, was 70-years old at the time of his death?
James J. Cox: Yes Your Honor but that’s not beyond the --
Potter Stewart: And I suppose some at least, some of his brothers and sisters were older than she and --
James J. Cox: In fairness Justice Stewart, I would say that records were not kept in Louisiana, there were court house fires and other reasons why it was difficult to prove relationship by the same token of the fact of burden of proof and the fact of proof of relationship is extremely significant in a case of this sort because it goes to the question of what is a state's legitimate interest in legislating against a particular class of people.
Potter Stewart: How old is the mother?
James J. Cox: The mother was 51-years old.
Potter Stewart: And she is now, she is now married Mr. Labine?
James J. Cox: Mr. Labine is deceased Your Honor.
Potter Stewart: I see. She married at the --
James J. Cox: She was married to James Brookes and then she married Mr. Labine and Mr. Labine is now deceased and she’s unmarried. She is also the mother as will be brought out I’m sure in adverse argument of other illegitimate children.
Potter Stewart: At the time of the birth of this child, she was -- are they in between marriages?
James J. Cox: There was no marriage Your Honor at the time of the birth of this child.
Potter Stewart: She’s never been married?
James J. Cox: She had been married first to Mr. Brookes and then to Mr. Labine who is deceased.
Potter Stewart: Yes, and very well, when was this child born?
James J. Cox: This child was born after the death of Mr. Labine.
Potter Stewart: I see she was a widow?
James J. Cox: Yes Your Honor.
Harry A. Blackmun: Is there any disability from the two parents marrying at the time and that one might have been married to someone else.
James J. Cox: No, Ezra Vincent Your Honor was not married nor was Mrs. Labine, there was no disability.
Harry A. Blackmun: As you move along your argument, will you touch upon the question whether if you prevail with respect to this little child, the same would be true if any illegitimate child whether acknowledged or not if paternity were established?
James J. Cox: Mr. Justice Blackmun, the question of burden of proof and standards of proof are questions which would be more appropriately resolved by judicial declarations and statutes, statutes from the stand point of setting reasonable burdens and judicial declarations if the burdens are unreasonable. Here, we have a case where its -- there’s an impossible burden. Either the parents of the child would have had to marry in order to satisfy the statute or would have had to adopt the child or would have had to go through a procedure whereby certain (Inaudible) would have had to observed. That is, they would have had to state it in the declaration, we intend to legitimate the child.
Harry A. Blackmun: Or draw a will?
James J. Cox: Or draw a will. On the other hand, the state in our contention Justice Blackmun and we respectfully submit to Your Honor, the state can’t presume a discriminatory intention which the state has done in this case. In fact, the state of Louisiana has filed an amicus curiae brief stating that illegitimate children are the proper subjects of the sort of legislation and inferring that robbers can be classified, why cannot be illegitimates be classified and we realize that --
Harry A. Blackmun: Well, I just want to be sure that your due process argument wouldn’t carry all the weight to benefit any other illegitimate child once paternity was established. But I take it you’re drawing the line between the two.
James J. Cox: As a matter of standing before the Court, as an officer of the Court, I would say that to draw the line a formal acknowledgment would be perhaps an inappropriate line. The uniform probate code recommended by the uniform commissioners on state laws, recommends that any child shall be treated as legitimate if proof of paternity is established during the lifetime of the parent or the father or thereafter by clear and convincing proof. Ours is not that hard a case although I think that this perhaps as good legislation. Ours is a case where the proof of paternity is so clear and unequivocal that we have to look at the state’s intentions in discriminating against the child. Admittedly, we stand before this honorable court asking that not centuries but thousands of years of discrimination against illegitimates be set aside, but this Court has never hesitated in the past to confront issues wherein clear and convincing proof of discrimination against the particular class is shown no matter what the historical antecedents may have been. In fact, in Levy and Glona, the fact of discrimination against illegitimates has been held to be unconstitutional in the context of wrongful death actions which involves property rights as well.
Warren E. Burger: Mr. Cox, do you need to do more than persuade that where there has been formal acknowledgment in a life time of the alleged father that that’s enough to satisfy the claim?
James J. Cox: This is the case in controversy before this Court.
Warren E. Burger: Well, do you have to do any more than that? Do you have to take on the whole class including those who never had the benefit of that acknowledgment?
James J. Cox: Only in order to answer hypothetical posed by Your Honors because I think that a formal acknowledgment is sufficient to satisfy the burden of proof perhaps other clearing convincing modes of proof would satisfy Your Honors also or the Courts that would interpret the statutes.
Warren E. Burger: We couldn’t get anything stronger than the formal acknowledgment that was made here.
James J. Cox: No, we’re very fortunate in that respect as far as having a real case in controversy before this Court.
Warren E. Burger: How many states have a statute that would be satisfied by the record here, do you happen to know?
James J. Cox: In one of the amicus curiae briefs various --
Warren E. Burger: Show some effort for that --
James J. Cox: -- differentiations are made in the brief of the American Civil Liberties Union written by the eminent writer in the field primarily professor Harry D. Krause joined by Mr. Melvin Wolfe and Mr. Dorson, he points out that I believe in perhaps at least 16 states, if I’m not mistaken but I don’t have the figures before me Your Honor. Under various conditions, this is at page 12 of his brief. For example in Arizona, California, Florida, Idaho, and I do know Your Honor that North Dakota has changed this law as a result of the in re estate of Jensen case which would make a fifth or sixth state in which this particular case would not – needs have arisen before this Court. In re estate of Jensen, in the state of North Dakota after the Levy and Glona cases, the North Dakota Supreme Court rightly applied Levy and Glona to an inheritance case and said that the North Dakota statute was an unconstitutional discrimination against illegitimates and allowed an illegitimate to inherit. Not only did this illegitimate child not inherit her father's estate but the Louisiana Courts felt that because she was receiving a $100.00 per month in social security and VA benefits that she was not entitled to support because of the standard which the statute establishes for support for an illegitimate which is to prove actual necessity. This is a heavier standard and a recognized child has to establish. The child’s needs were shown to be a $192.30 per month, but because of the fact that she is illegitimate, she must continue to live in a condition of destitution. As we view it Your Honors, the real issue in this case is the denial of inheritance rights to illegitimates, promote a genuine state interest in family unity and if it does so promote it, can this be promoted in a haphazard fashion. We would concede that family unity is something that is very much of concern to states and something which to be well promoted for instance, the state of Louisiana could well legislate a bonus for parents who remained together and care for their children. To the contrary, the state of Louisiana has passed a statute legislating against parents who stay together for welfare purposes. If parents remained together and they have dependent childrenintestate succession laws, in their destitute, they’re ineligible in the State of Louisiana for welfare. This appears in Louisiana revised statutes 46:231. Therefore, Louisiana certainly pursuing the most peculiar course if it’s genuinely trying to promote family unity in the field of legitimate relationships between parents and children. Furthermore, --
Potter Stewart: Well, that’s true everywhere, isn’t it? (Inaudible)
James J. Cox: Yes Your Honor. By the same token, some states in applying this type of statute have tried to go further against illegitimates by invoking the substitute father doctrine which is that if there were an illegitimate father in a household, he would be presumed to be the parent of all of the children therein and therefore that illegitimacy situation would exclude all of the children from benefits. Now, this Court had no trouble with that type of statute in Arkansas. In Smith versus King, this Court struck this down as a denial of Equal Protection of law and Due Process of law. Furthermore, if the State of Louisiana is to be consistent in pursuing the doctrine of family unity and promoting legitimacy, they should -- we feel, pay some attention to the recent statistics. According to the trends in illegitimacy in the United States 1940 to 1965 which was published by the National Center for Health Statistics in February of 1968, Louisiana had more illegitimate births per capita in states which did not follow this particular and repressive approach to illegitimacy.
Warren E. Burger: I was puzzled by your emphasis on that in your brief, what’s the real connection between the two?
James J. Cox: Well, this was in the amicus curiae briefs Your Honor? This is anticipating an argument that the approach to promoting family unity and encouraging legitimacy is based on common sense.
Warren E. Burger: Well, aren’t you confusing the declared purpose of the legislative body and making an enactment and the actual consequence is nearly as anyone can discern it. They can have as it’s the declared purpose legitimately, the object of the state. It doesn’t prove anything that the statistics have some tendency to go the other way?
James J. Cox: Well, there must be some real and viable relationship between the declared purpose and an actual state of facts Mr. Chief Justice Burger.
Warren E. Burger: Well, but you don’t know?
James J. Cox: In my respectful submission, --
Warren E. Burger: You have no way of knowing that absent to statute, the situation might not be a lot worse in Louisiana? That’s my point, I can’t see that that’s your --
James J. Cox: I can’t really --
Warren E. Burger: -- very strong how impress I am.
James J. Cox: I can’t really argue with that.
Warren E. Burger: That’s my point, nobody knows and therefore --
James J. Cox: Nobody really knows.
Warren E. Burger: -- reliable yardstick for anything?
James J. Cox: No, I don’t think that pursuing these figures we will come out with an answer except to say that Justice Stewart’s observation in the case of Shelton versus Tucker I think is pertinent. This court in that case pointed out that even though the governmental purpose might be legitimate, in this case perhaps the promotion of family unity by legislating in a field of legitimacy this purpose might be legitimate. But that purpose can’t be pursued by means that stifle individual rights and that are over broad and over encompassing for --
Potter Stewart: Was that a First Amendment case?
James J. Cox: Yes it was Your Honor but --
Potter Stewart: With association --
James J. Cox: -- I do believe that the language there -- let me post this question to you Justice Stewart. If legislating against legitimacy is a valid purpose which we concede it is, would it not be over broad to say that not only must a parent formally acknowledge the child but must also declare that he intends to legitimate the child in order to accomplish that purpose.
Potter Stewart: Allow me to answer the question now or later?
James J. Cox: Well, I’ll sure I’ll receive an answer but this is what strikes me to be the question here from the standpoint of this child’s rights.
Warren E. Burger: Mr. Cox aren’t you in a stronger ground if you simply take the old thesis that one of the predicates on this problem has been that it exposes people to fraudulent claims which are difficult to establish truth either way and that none of those factors are served when a state denies this right to one as to whom there is no question on the part of the father?
James J. Cox: I would like to take those grounds in my argument. Blackstone’s commentaries which might be used as the historical president to show that this is not an unusual bit of legislation, specifically mentions the reason is these fraudulent claims. And for thousands of years in both the civil and common law, we have this situation but with an over broad zealousness and diligence in pursuing this illegitimates who have nothing to say about their status. Here, this little child could do nothing about her situation. Her father who was attempting to do what he could about her status formally acknowledged her and adjoining in this particular approach, we feel that it’s too much to require that they go beyond formal acknowledgment.
Harry A. Blackmun: Is it quite accurate to say the father did what he could, he could had drawn a will?
James J. Cox: He could have --
Harry A. Blackmun: Which is a lot easier than going through adoption proceedings or --
James J. Cox: He could have Justice Blackmun but it’s every man’s right not to draw a will and we -- I do not feel speaking for the little child and not engaging in colloquy with the Court, that this child should have any heavier burden after the proof of her relationship to her parent than any other child is concerned. The state presumes an intention on the part of those who don’t draw wills in Louisiana to exclude illegitimates and this is an unconstitutional assumption of state power and derogation of Equal Protection rights.
Potter Stewart: I would suppose perhaps that the state would assume an intention on the part of a decedent who do not draw a will that his property should go under the state laws of descendant distribution? The father of this child could have drawn a will and left all of his property to the child? Since he did not draw a will, wouldn’t the natural assumption be that he intended his property to go by the Louisiana laws of descendant distribution, i.e. to his brothers and sisters?
James J. Cox: If those laws were constitutional, I would imagine that the man in the streets thinks that the laws are constitutional Your Honor from talking to ordinary people and that’s not before this Court. This doesn’t shock, I mean idea of an illegitimate inheriting if he’s formally acknowledged or she is formally acknowledged seems to be what most people thinks the law would be and --
Warren E. Burger: That doesn’t meet the problem that suppose that the state makes a will for all people who do not take the trouble to make one for themselves and the man, it’s a common thing for lawyers consulted by people of no great means in finding out what they want to do to tell them that they don’t need a will because what they want is what is already provided for by the statutes. Now, I’m certain that that’s common to lawyers all over the country? In other words, they say the state’s made a will for you, so you don’t need to bother.
James J. Cox: Once lawyers know what this honorable court holds the constitution means, when it says Equal Protection of the law which most people think they know then the attorneys won’t be giving advice not to do something about one way or another. If you want to exclude your illegitimate child which you can’t do by the way, if the child is – if you granted Equal Protection in Louisiana, the child would receive a forced portion.
Harry A. Blackmun: That’s equal protection with what, with what other children?
James J. Cox: With children similarly situated except for the accident of what their parents have done.
Harry A. Blackmun: You’re not saying that Louisiana could not constitutionally leave all children legitimate or illegitimate out of the laws of intestacy, or are you?
James J. Cox: That would be -- this has never been done in any state Mr. Justice Blackmun and I’m not saying that they couldn’t but it certainly wouldn’t promote what common sense dictates that is the parents support their children and leave basic methods of support.
Harry A. Blackmun: I come back to the question I originally asked and I realized as the Chief Justice indicated that you don’t have to go this far but I wonder how you can -- if you prevail constitutionally here, you don’t also carry with you every illegitimate child who’s paternity is established by other methods than acknowledgment, I would suspect you do?
James J. Cox: I would say Mr. Justice Blackmun in answer to that question that it would depend upon the way that this Court rules. I don’t believe it because a particular standard is unconstitutional, that every standard under other circumstances would be unconstitutional. I can only appear before this honorable Court with a case in which a clearly unconstitutional standard has been placed upon a child under which Equal Protection has been denied to this child.
Potter Stewart: On this case there were no legitimate children of the decedent?
James J. Cox: There were no legitimate children.
Potter Stewart: So, in this case with respect to this property there was no discrimination as among these children, was it?
James J. Cox: There was discrimination against this one child.
Potter Stewart: No children got? The brothers and sisters got the property?
James J. Cox: That’s right and there was --
Potter Stewart: There was no discrimination as between legitimate children and illegitimate children of this decedent, was there?
James J. Cox: There was discrimination as between an illegitimate child and legitimate brothers and sisters, but because of the fact --
Potter Stewart: Two quite different classes of people, there was no -- oh I think you’ve answered my question, if there were no legitimate children then there was no discrimination as among children in this case?
James J. Cox: That’s correct Your Honor.
Thurgood Marshall: What if this plaintiffs disposition had been legitimate, she would have automatically inherited, is that right?
James J. Cox: That’s correct, this is where I feel the discrimination comes in. This particular child was discriminated against solely because this child was illegitimate. And we don’t mean to go as far as the briefs that were filed amicus curiae which raised the question of racial discrimination here. We don’t think that the state intends racial discrimination, that we think the state intends a discrimination between legitimates and illegitimates which is a class of discrimination which has gone on for centuries in which has been en route -- have been made in other cases. But when it comes to this particular child, the fact that others in other states and the Supreme Courts of other states have said that these were unconstitutional enactments, this has not helped this child because our Supreme Court says it’s perfectly constitutional. So we’re forced in a position of having to ask readdress from this Court. I’d like to save the balance of my time.
Hugo L. Black: Supposed the legislature had passed a law which said that no father of illegitimate children in this state shall be permitted to exclude his legitimate children -- illegitimate children or all that all fathers in this state must give as much to the illegitimate children as they give to their legitimate children?
James J. Cox: This would be a good and valid way to clear the problem Mr. Justice Black. This would be a good way to clear up the problem Mr. Justice Black, but when the legislature does not do it, --
Hugo L. Black: The legislature just left it open I presume for a man to dispose that his property go as he felt it under the law, isn’t it?
James J. Cox: Admittedly Mr. Justice Black, the father could have left to his illegitimate child what he did to his legitimate brothers and sisters but we get into the area of presuming the intention of the testator, this is what the state has done, the legislature has presumed that all testators intend to exclude illegitimates but the legislature also presumes and has said that a parent cannot exclude legitimate children.
Hugo L. Black: But why wouldn’t the next step be under your argument that say that well, it’s not fair, it denies equal protection through bad policy for a father not to have to leave some of his money to his illegitimate children, why shouldn’t the Court decide that denied due process or equal protection?
James J. Cox: Why should the Court --
Hugo L. Black: Why would not be about the next argument?
James J. Cox: I didn’t understand it.
Hugo L. Black: Well, the next argument that there’s no law on it but the Court should hold that it denies Equal Protection to permit the father to discriminate against his illegitimate children?
James J. Cox: That step may very well come because the father cannot discriminate against legitimate children in Louisiana. Why should the father be able to discriminate against illegitimate children? That we have a forced heirship laws in Louisiana Mr. Justice Black. I understand your philosophical argument but the State of Louisiana presumes that parents have to provide for their children and will not allow discrimination against children.
Byron R. White: Do you mean that under Louisiana law a man cannot disinherit his children?
James J. Cox: That’s correct Your Honor, but he can disinherit his illegitimate children by not saying anything and he doesn’t intend to.
Hugo L. Black: Well, if he hadn’t intended to he could have prevented it certainly under Louisiana law? He could have made a will and left it in the part of the father.
James J. Cox: Yes he could have Your Honor.
Byron R. White: Would you answer that for me again? He could have made a will in what?
James J. Cox: He could have made a will and he could have left his property to his illegitimate child if he had so desired.
Byron R. White: At the expense of his legitimate children?
James J. Cox: He had none so he could not.
Byron R. White: Suppose he did have?
James J. Cox: But if had had some, no he could not have, they would have been forced to the same extent. There’s a small disposable portion that he can distribute but --
Byron R. White: So that by will he cannot give his entire state to charity to the exclusion of children under the Louisiana law?
James J. Cox: That’s correct Your Honor. I’d like to save the balance of my time for rebuttal. Thank you Your Honor.
Warren E. Burger: Mr. Leithead.
James A. Leithead: Mr. Chief Justice, may it please the Court. This matter factually doesn’t present any question. These people did merely came in after Ezra Vincent died and said they were the brothers and sisters and wanted to open his succession in Louisiana under the intestate laws, if a person dies leaving no children, then you look to the interstate laws to see which classes of persons inherit his estate. Louisiana has legal heirs in connection with the intestate succession. In this particular case, since Ezra Vincent didn’t leave any children, he left brothers and sisters and he left and acknowledged illegitimate child. Under the laws of the Louisiana intestate succession laws, the brothers and sisters are the class inherited before the acknowledged illegitimate child. Now, you might ask --
Potter Stewart: The acknowledge illegitimate child come anywhere in the hierarchy if there had been --
James A. Leithead: Yes sir. The acknowledged -- you might ask why did he acknowledged his child. First, here in Louisiana you have an illegitimate child which is the lowest you can get, then you have an acknowledged illegitimate child and that acknowledged illegitimate child is raised in his status as being able to inherit, he can inherit from his mother just after her legitimate children. He can inherit from the father just after the wife which were just before the state. He doesn’t have as high an inheritance position in the state of his father as he does in his mother because Louisiana recognize the natural law that a child is closer to its mother than it is to his father but he doesn’t -- he does have inheritance right.
Potter Stewart: If this decedent had died living no surviving brothers and sisters and no issue of any siblings, would this appellant have inherited?
James A. Leithead: This child would have inherited because the law states that if a man dies leaving no legitimate children, no mother and father and no surviving wife, then his acknowledged child would inherit.
Potter Stewart: Well, wait a minute, this man didn’t have mother, father and a wife?
James A. Leithead: No, I say it, so the child would have inherited if he didn’t have brothers and sisters.
Potter Stewart: Oh yes, because the brother as in this case, the brothers and sisters come ahead but --
James A. Leithead: Come ahead.
Potter Stewart: There have been no brothers and sisters, the appellant would have inherited here under the -- intestate succession laws,
James A. Leithead: That’s correct.
Potter Stewart: Laws of descendant distribution?
James A. Leithead: That’s correct.
Potter Stewart: And from the mother, the natural mother I suppose you don’t need to be having any certification of parenthood in that kind of -- and for the mother, do you?
James A. Leithead: Proof of motherhood is very easily made, mother knows as usually witnesses, a midwife or something as to the birth of the child but the children, natural children of a mother come in just after her legitimate children. If she had no legitimate children, they would inherit to the exclusion of all other persons under the intestate laws of the state.
Thurgood Marshall: Well, what’s your reason for drawing the line between the legitimate and illegitimate children insofar as the mother is concerned?
James A. Leithead: The state realizes that the mother has a close family connection to the -- well, to answer to question, the state of Louisiana prefers --
Thurgood Marshall: That is a closed family connection --
James A. Leithead: Yes.
Thurgood Marshall: -- between the illegitimate child and legitimate child?
James A. Leithead: Yes, the state of Louisiana has a state policy preferring legitimacy over illegitimacy and in connection with that policy, it’s obvious that they prefer legitimate heirs to illegitimate heirs and their policy is a -- it is to promote marriage and discourage illegitimacy and also for the protection of their land titles.
Thurgood Marshall: Is to promote the marriage of the illegitimate child or his mother but the illegitimate child is the one to suffer?
James A. Leithead: That is correct, but if the parents wish to, they could prevent the illegitimate child from suffering by doing some other things and that is they could legitimate the child by informally acknowledging the child before or after a marriage if they could marry, they could adopt him or they could leave a will. So there’s an avenue that they could change the course of events.
Thurgood Marshall: What course of events can the child change?
James A. Leithead: The child cannot change any course of events.
Thurgood Marshall: That’s what I thought.
James A. Leithead: That’s right.
Warren E. Burger: Somewhere in these briefs I thought, I recalled seeing a figure on the total number -- estimated total number of illegitimate people in the country, do you recall the figure?
James A. Leithead: I don’t remember what those figures are Your Honor, that must be an amicus curiae brief.
Warren E. Burger: Amicus briefs yes.
James A. Leithead: Wasn’t in my --
Warren E. Burger: It’s a very large number, the total number of all ages.
James A. Leithead: Yes. And my comment on the facts of this case, in the Levy case, Justice Douglas stated that the Court assumed that the minor children there had a family relationship with their mother. That is the mother supported them, that’s is where the illegitimate children sought under Louisiana wrongful death statute to recover damages for the death of their natural mother, that there was a family relationship, the mother supported them, she took them to church, she took them to school, she cared for them, she lived with them but there’s none of those facts are in the record of this case. This case shows -- does not show that Ezra lived with the child .In fact, the evidence is just to the contrary. If you’ll notice the acknowledgment papers and the birth certificate, it’ll show that the address of the mother was something on Belton Street in Lake Charles Louisiana, whereas Ezra and his family lived in a little town called Moss Ville which is 10 -- across 10 or 12 miles away. Now, the fact that there was no marriage certificate between Ezra’s father and mother is due to the fact that there were no marriage records in (Inaudible) parish where this man lived prior to 1910. And his brothers and sisters all were born prior to that time. So there’s no marriage records nor were there any birth certificates. So, we had to prove the marriage relationship of Ezra’s mother and father by their reputation in the community. And in so doing, we found out that this interest in this property that Ezra Vincent left was real property, he had eight brothers and sisters -- seven brothers and sisters. 1/8th of it constituted the bulk of this succession which amounted to proximate $15,000.00, that was a family home and Ezra and his brothers and sisters lived there, they formed the property, they went to the Baptist church together. His grandfather was a Baptist minister. Their reputation in the community was such as to be the highest. They were recognized. His family was recognized as prominent citizens. So there was a family relationship between Ezra, his brothers and sisters and their parents, whereas, this was not shown to be the case by the evidence as presented in this case. Now, in common law, an illegitimate was known as a non-person, he was not entitled to inherit anything. Louisiana law as I have stated permits them to inherit but not as high upon the ladder as legitimate relations. The civil law has historically treated illegitimates more favorable than illegitimates by letting them inherit from their mother. The most modern statutes now permit illegitimate children to inherit from their mother but prohibit or deny them to inherit from their father. Now we get down, we’ve been talking about the child in this case. I think the Court should also give some consideration to the decedent. Now, when he died, the laws of the State of Louisiana, the intestate laws were -- was that his property, his family property would be inherited by his brothers and sisters. Now, at that time, Ezra had a choice to make. He could say now look, I want to leave this child something. I want to make a will. He could have done that or he could have said I want to marry the mother of the child, there was no impediment to the marriage. Or he could have adopted the child. Anyone of those things would have changed the course of these events. Now once Ezra died, he no longer can exercise any choice when die was cast. This Court cannot revert this case back to before his death and say now, Ezra, you have the choice, what do you want to do because what he did indicates what his choice was.
Thurgood Marshall: If the child had been legitimate, it hadn’t seen the father for the past 50 years and was now living alone, she would have inherited?
James A. Leithead: That’s correct.
Potter Stewart: He could have made a will I suppose in given at least to part of his property to somebody else.
James A. Leithead: A small one –if you have one child, the fourth portion is 1/3 that you have to leave the child, 2/3 you can give them.
Potter Stewart: You can give them 2/3 of the property still to his brothers and sisters.
James A. Leithead: Right.
Warren E. Burger: While you were pausing here, I’m looking at page 8 of the appendix, that’s the certificate of acknowledgment of paternity. Do I read that correctly that it was also signed by the mother?
James A. Leithead: That’s correct.
Warren E. Burger: And then before a notary public and two witnesses?
James A. Leithead: Right Your Honor.
Warren E. Burger: So that, is the formality of executing a will in Louisiana any more complex than this?
James A. Leithead: There is -- no sir, there is -- a will maybe executed in Louisiana before a notary public and two witnesses.
Warren E. Burger: The same as this --
James A. Leithead: Same as this, say -- and the notary public has authority to take a will, so at the same time these parties were doing this, if Ezra wanted to, he could with -- had signed the will and left his property to his acknowledged child. So all of that indicates that it was not his intention to leave the family property to this acknowledged child, but rather to keep it with his brothers and sisters.
Thurgood Marshall: That indicates what?
James A. Leithead: He indicates to my way of thinking that if Ezra was in the notary’s office and had two witnesses and did not sign a will, at that time living his property to his acknowledged child. It would indicate that he did not want to do that.
Hugo L. Black: What would be the purpose of you acknowledging the child?
James A. Leithead: To provide for the child support. Now, the child did was to immediately receive $35.00 a month from the social security administration while Ezra was living and after his death, is receiving between social security on veterans administration a $100.00 a month.
Hugo L. Black: What date was these acknowledgment made?
James A. Leithead: It’s on page eight of the appendix, 1962.
Warren E. Burger: 1962 apparently?
James A. Leithead: 1962 Your Honor.
Warren E. Burger: Social security had to pay sometime before that as it is?
James A. Leithead: Yes. Now, --
Potter Stewart: By reason of the certificate, --
James A. Leithead: Yes sir.
Potter Stewart: By the acknowledgment that he was the father of the child, the child received as his child?
James A. Leithead: That’s right, under the Social Security Act.
Potter Stewart: Social security and veterans benefits totaling a $100.00 a month from the United States Government and then all of his property went to his brothers and sisters?
James A. Leithead: That’s correct, that by statute.
Potter Stewart: There’s no way of knowing that that’s not exactly what he intended?
James A. Leithead: That’s exactly correct. That by statute under the social security administration and VA administration acknowledged child participate. Now, I’m not saying that this is not a hard case factually, it is. But Chief Justice --
Potter Stewart: What do you mean by that?
James A. Leithead: Well, it means that a man came in and acknowledged this child and the child -- the brothers and sisters come in inherit before the child. This might be considered by some to be a hard case factually.
Potter Stewart: The acknowledgment did serve to make her illegible to receive a $100.00 a month from the United States Government.
James A. Leithead: Right and that’s equivalent to $24,000.00 at 5% interest.
Hugo L. Black: I assume that parents frequently distinguished in the amounts they leave to their children?
James A. Leithead: That is true and in some case, some states so I informed that there is no forced heirship and the child maybe left just by testament of mere pittance where another child maybe cleared.
Warren E. Burger: Or omitted entirely?
James A. Leithead: Or omitted entirely.
Warren E. Burger: As long that it’s clear that the omission wasn’t over sized.
James A. Leithead: Yes, if --
Warren E. Burger: It’s true in almost all the states in this country, is it not?
James A. Leithead: Yes, but in Louisiana, no sir, you cannot do that.
Warren E. Burger: That’s because if the civil law of --
James A. Leithead: Civil law.
Warren E. Burger: -- wanting, isn’t it?
James A. Leithead: You must leave the forced heirs, their forced portion and the forced heirs in Louisiana are lawful children and parents. But as I say this may appear to some to be a hard case factually, but I’d like to remind the Court of a speech that made by Chief Justice Burger, while then a United State Circuit Court Judge when he delivered and address at the conference of judges in Columbus Ohio on September 4, 1968 from which the following is an exurb and I think its pertinent. This copy was given to me by Mr. Ben Miller from Baton Rouge .The Chief Justice said "these hard cases usually come to the Court over the narrow record of but one case which frequently presents emotionally appealing situations that confuse and blur the bedrock consequences of a broad holding." The address was published in the Ohio bar volume 41 number 46 dated November 23rd 1968 pages 1440 and 1441. Now, in my opinion, Pandora’s box would be open by any holding that federal law as declared by federal courts and not even by Congress and not by state law would govern succession rights in all of the 50 states and overrule a states law on inheritance of property in that state particularly recent state.
Thurgood Marshall: May I, does the record show how much of estate this man left?
James A. Leithead: The record does show in its approximate $15,000.00 in property real estate.
Hugo L. Black: $15,000.00?
James A. Leithead: Yes sir.
Warren E. Burger: And the benefit that he conferred by this acknowledgment as a capitalized value of 24,000 did you say?
James A. Leithead: Capitalized at 5%, yes Your Honor.
Byron R. White: Do I understand that there had been no veteran or social security division (Inaudible)
James A. Leithead: Yes Your Honor. The child would have to come in and prove the paternity.
Byron R. White: Even though between the acknowledgment?
James A. Leithead: No, no, oh, no, if there had been, the acknowledgment -- the father -- the estate would still have to support the child, that’s correct Your Honor.
Byron R. White: And when is it that the father -- the father’s state did not subject to terms?
James A. Leithead: It supports the child, if the child is 21 or until the child can earn a living for himself, it’s doing minority.
William J. Brennan, Jr.: Why is it in this instance, wasn’t there an effort here to have the state contribute to this child’s support?
James A. Leithead: The trial judge reasoned this way. In divorce cases in Louisiana, in the jurisdictions where we are, a child in a divorce case gets between $60.00 and $75.00 per month support and the trial judge felt that this child was receiving a $100.00 a month support and that was sufficient for the child’s support.
William J. Brennan, Jr.: But the statute itself doesn’t fix --
James A. Leithead: No sir.
William J. Brennan, Jr.: Fix from.
James A. Leithead: The statute just says what is necessary for the support of the child and is left up to the discretion of the Court, the Trial Court.
William J. Brennan, Jr.: So if you have this pension or whatever it is this $100.00 a month, it’s been only $50.00 a month, there might still have been a holding that the state was not to pay anything for --
James A. Leithead: May have been and may have been just the opposite and the state shouldn’t contribute so much money from it. Considering some of the bedrock, I mean some of the analogies to this case and some of the bedrock consequences which may -- we may get into by a broad holding and this Court, this case before the Court in the area of adoptions, their rights and obligations. Most states permit a married couple to adopt the child, some states say that an unmarried man and an unmarried woman may adopt, others say just an unmarried woman may adopt. Some states may wish to deny inheritance rights to an adopted child or some may want to give the adopted parents of the child some rights in the child’s estate, but what would happen if a state would suddenly declare that they would change their policy only prospectively and deny adopted children inheritance rights, and in real property in the state. If that is to declare it unconstitutional as a discriminary against the innocent child in some other hard case who believed that he was the child of his parents but later was decided he was the adopted child. The child would come out without anything.
Thurgood Marshall: Do you think the case, could have this man alone could have adopted this child?
James A. Leithead: There’s no --
Thurgood Marshall: In Louisiana.
James A. Leithead: There’s no prohibitions that I know off that he could not.
Thurgood Marshall: And then he would meet the same category for legitimate child.
James A. Leithead: Yes Your Honor.
Thurgood Marshall: So that if an illegitimate child is born to a couple who has no access to legal advice or adoption, had no way in the world for that child to become able to inherit?
James A. Leithead: No sir. The child is entitled to support.
Thurgood Marshall: But not to inheritance?
James A. Leithead: He has to be acknowledged or legitimated.
Thurgood Marshall: Well, that means adopted?
James A. Leithead: You say if the child was adopted?
Thurgood Marshall: No, I said the child has to be adopted?
James A. Leithead: Or legitimated.
Thurgood Marshall: How is legitimated?
James A. Leithead: Now, legitimated is when the persons maybe done by a notarial act where you go before the notary and say that this is my child and I want him to be my heir and I want him to inherit from me, that is a legitimation. There is no -- it has to be specific.
Thurgood Marshall: And that’s under Louisiana law?
James A. Leithead: That’s under Louisiana law, are -- that are the parties, the man, the mother and the father of the child may marry. If they marry either before or after the child is born and consider the child as their child, the child is legitimated by that act of marriage.
Thurgood Marshall: At the court notary.
James A. Leithead: No, just go into the Court’s church and get married and just having the child live in a home with them and acknowledge him.
Thurgood Marshall: I thought legitimizing is done before notary?
James A. Leithead: There’s two ways of doing a legitimizing. One before notary and a document that is signed. The other is by actions of the parties by actually being married and acknowledging informally or in writing that the child is theirs.
Thurgood Marshall: This has to be done before notary and in Louisiana that’s different from notaries in the other countries, that’s officially banned.
James A. Leithead: Yes Your Honor.
Thurgood Marshall: If that’s the only way to do it, the only difference between that child in this case, the only reason she can’t inherit because they differ as far as willing to do that?
James A. Leithead: The father did not legitimize her before a notary public and he did not marry the natural mother or he did not of course leave a will or adopt the child.
Thurgood Marshall: And none of this things could she on her own had done obviously?
James A. Leithead: No.
Warren E. Burger: Mr. Leithead, under the statute of Louisiana must -- with that certificate -- the acknowledgment had been valid if the mother had not also joined in it, but must both of them join in the acknowledgment?
James A. Leithead: To my understanding is they do both or if the -- only the husband signs the acknowledgment, it is not binding on the mother, it's only binding on those who actually acknowledge. I’m not quite sure but I believe either one could acknowledge but it’s only binding on the one who does.
Warren E. Burger: Would it -- how much more would they had to say on this certificate of paternity in order to confer rights of inheritance by intestacy?
James A. Leithead: They wouldn’t had to say that they acknowledged that -- Ezra Vincent would have had to say that he was the father of this child and that he acknowledged the child as his child and granted him the right to inherit from him, it has to be specific.
Warren E. Burger: And it’s just the time --
James A. Leithead: A similar to a will, it has to be --
Warren E. Burger: As to five more words isn’t it?
James A. Leithead: Well, I’m just giving you those in my words. It could be less or more than five words but you wouldn’t have to express his intention because this does not in itself express his intention to allow the child to inherit from him. I might say another analogy to this case is that Louisiana code prohibits divorced spouses from marrying his or her concubine. Now, is the state to be denied this policy because it might be denied of persons of equal protection on the constitution. I see my time is running out, I’d like to --
Hugo L. Black: Louisiana have a common law marriage?
James A. Leithead: Louisiana does not recognize common law marriages although many states do and Louisiana and other states have different laws in respect to putative marriages.
Hugo L. Black: Has there been any question raised yet about that being unconstitutional?
James A. Leithead: There’s never been any question as to whether or not the -- no sir, that question has never been raised in Louisiana. Whether or not that is a constitutional problems of the state in its policy decision, whether or not, not to recognize common law marriages and to require that people married and living together should go through a ceremony. That question has never been risen. But if would be risen, would arise would that be constitutional for the state to pass such a statute. The implications of this case are maybe far reaching. Far more reaching than what the narrow issues that are presented before this Court, once this Court decides that the Supreme Court of the United States is going to pass upon the dissent and distribution of laws in the 50 state, in my opinion, the Court would have to legislate on many items and make decisions and decide many points in succession law which will be most complicated for instance. In this particular, in Louisiana, these are some of the things the Court would have to decide whether or not an illegitimate child, whether the illegitimate child would inherit from its father equally with a legitimate child. You see, this makes a difference because in Louisiana, we have the forced heirship in some of the other common law states, it may not make any difference. Will and adulteress and illegitimate child inherit the same as an illegitimate child who is not an adulteress illegitimate child, there should have been a distinction made. Will an illegitimate child who is informally acknowledged inherit just as well as one that is formally acknowledged? Will that make a distinction if the father have an illegitimate child and later the mother and the father married, would that make any difference as to the rights of inheritance. Would the illegitimate child of the father of the father’s concubine inherit his one half interest in the community property of the father with his legitimate wife? Will illegitimate children inherit to the exclusion of the decedent’s parents who are forced heirs if there are no other children or would the illegitimate child, no matter how it would be acknowledged, would he be considered a forced heir. These are all many questions that would have to be answered and the Court would be legislating in my opinion, if they would attempt to decide that the intestate laws in this -- that are before this Court for decision are unconstitutional, we submit that the court below, the decision of the court below should be affirmed.
Warren E. Burger: Thank you Mr. Leithead. Mr. Cox, you have three minutes left, I think I’ll hold my question until you finish so as not to use your time for you.
James J. Cox: Thank you very much Mr. Chief Justice Burger. I think that at the outset I should answer the most important question raised by Mr. Leithead and that was the question of the confusion that would result in property law if this illegitimate child were considered to be a child of the decedent. The answer is that if this Court ruled that as it has in Levy and Glona that is invidious to discriminate against an illegitimate and that this child should be treated as a legitimate since the burden of proof standard has been met here, then this child would simply inherit like any other child and his relationship vis-à-vis the parents vis-à-vis collateral candid would be just like any other child, there would no uncertainty in Louisiana’s property laws result of such a ruling. It was cleared up in North Dakota by the North Dakota Supreme Court by stating that for all extents and purposes, a child who has the burden of proving his parentage shall be treated as though legitimate. Now, I think that the other question that is the chaos that might be created in land titles.
Warren E. Burger: On what ground did North Dakota based that holding?
James J. Cox: Oh, the Court of North Dakota and in re estate of Jensen, based it on the grounds of the North Dakota constitution and the United States constitution granting Equal Protection of laws to all of its citizens. It’s not strictly relevant but the Supreme Court of that state of Italy under its post war constitution, some 10 or 15 days ago according to an AP dispatch, decided that in Italy, the equal protection of the laws under the post war constitution demanded that a child who bore the burden of proving within a narrow framework, his relationship to his parent could inherit just like a legitimate child and this is the only issue this before this Court, not some sort of disruption of the orderly legal processes of the nation. Simply, the granting of equal protection of the laws within a narrow framework, to children who have nothing to say except through this Court about their status, the innocent victims of discrimination, Levy and Glona are the laws of the land and to repudiate Levy and Glona because of the fact that land titles might be involved is to deny to a particular person or a particular case or controversy, equal justice under the law. Now, in the famous case of Moscrat versus United States, it was held that actual cases are controversies with the things that were presented to the Court. Declaratory judgments about other people’s rights would not be entered upon by this Court. n US versus Wade and Gilbert versus California, the Court ruled that the new standards which were basic standards of Due Process and those cases, that is the right of an accused to have an counsel in a lineup where this – lead to prejudice to this case, would be applied to Wade and Gilbert but not to those who had lived before Wade and Gilbert or who had transgressed previously. If this Court rules in favor of the little child in this case, it would apply to her case and to subsequent cases and lawyers will have ample opportunity to make their wills and provide under the laws for their clients. But under Levy and Glona, this child is entitled to the most profound consideration of her equal protection rights by this honorable court.
Warren E. Burger: Mr. Cox, I live in Virginia which permits a testator to make a will, I think anyway he wants to do it, he cut off his children, I suppose that’s true in 49 of the states. Suppose, I make the will, leaving nothing to my children, do they have a claim that because Louisiana, if they lived in Louisiana, I could not have cut them off but they are thereby denied Equal Protection?
James J. Cox: No because, here we have a question of class, a class of people Your Honor. In this particular case we have a class of people illegitimates just like a class of people, Chinese in which this honorable court in cases has said that in an alien land loss cases, said we couldn’t discriminate against Japanese.
Warren E. Burger: You got a class, suppose I had some children -- well, children in Louisiana can inherit and children in Virginia and the other states can’t.
James J. Cox: I see no reason.
Warren E. Burger: You don’t see any Equal Protection problem there at all.
James J. Cox: I see no reason why children in one state should not be able to inherit and children in another state according to the state’s legislative wisdom can inherit only if their parents say they can or cannot, but I do see something invidious in one state saying that under -- or any state saying that a -- that Japanese as was this case in Oyama versus California, that the child of an alien cannot hold property because it’s presumed to be the alien’s property and I would join with Justice Black who wanted to go further and say that not only could that child hold property but his parents should be able to hold property. This is a discrimination against the class of children Your Honor, not a state trying to carry out a state purpose.
Warren E. Burger: Thank you Mr. Cox. Thank you Mr. Leithead. The case is submitted.


Earl Warren: Number 15, American Trucking Associations, Inc., et al. versus Frisco Transportation Company [Cross Talk] and number 16 also Railway Labor Executives' Association versus Frisco Transportation and number 19 also there, consolidated. Mr. Ginnane were you first to speak?
Robert W. Ginnane: Mr. Chief Justice --
Earl Warren: You may proceed.
Robert W. Ginnane: -- may it please the Court. I am appearing as counsel for the appellant Interstate Commerce Commission in number 19 and if you please I'm sharing the time allotted to the appellants with Mr. Beardsley who is counsel for the appellant American Trucking Associations in number 15. These appeals present two questions first whether the Interstate Commerce Commission may correct a motor carrier certificate of public convenience and necessity, to conform it to the findings and conditions in the Commission's report which authorized the issuance of a certificate and secondly for the majority of the three-judge court below was correct in its finding or conclusion, but what the Commission did in this case was not the correct of error in the previously issued certificates, but the application of an intervening change in Commission policy. Turning to the facts, late in 1938 and early in 1939, after hearings, Division 5 of the Interstate Commerce Commission issued three reports, authorizing the appellee, Frisco Transportation Company, to acquire the operating rights and properties of four independent motor carriers that are referred to in the record as Parker, Tolson, Hamm and Cooper. Frisco Transportation Company is a wholly owned subsidiary of the Frisco Railroad. Each report authorizing these acquisitions contained the finding or condition that the authority herein rendered is subject to such further limitations, restrictions, or modifications as the Commission may hereafter find necessary to impose, in order to ensure that the service shall be auxiliary or supplemental to the trained service of the railroad and will not unduly restrain competition. The appellee Frisco took no exception to these reports, did not petition for reconsideration by the entire commission, but consummated the purchases and began operation of the properties early in 1939. On various dates between March and July 1939, there were issued from the Commission four so called compliance orders, each stated as to each of the acquisitions here involved, that appellant compliance with the rates and insurance requirements of the Act, a certificate of public convenience and necessity would issue to Frisco, authorizing it to conduct the particular motor carrier operation. However, each of these four so called compliance orders in describing the authority granted to Frisco, omitted the proviso or condition in the Commission's report, that there shall be a reservation of power to impose future restrictions. In July 1941, after issuance of the compliance orders, Campbell Sixty-Six Express, an independent motor carrier competing with Frisco, and other motor carriers filed with the Commission a complaint alleging that Frisco was performing motor carrier operations on these routes, in excess of the service authorized by the Commission. And in March and April 1942, while this Campbell Sixty-Six complaint was still pending before the Commission, there were issued to Frisco, four certificates of public convenience and necessity, covering these four acquisitions, and these four certificates also failed to contain any reservation of power such as was called for by the prior reports of the Commission.
Charles E. Whittaker: Well the fifth division at the same time didn't --
Robert W. Ginnane: That's correct sir. In 1943, in the complaint proceeding, Division 5 of the Commission concluded that Frisco was engaging in motor carrier operations in excess of the authority, which Division 5 had previously granted, and it directed that the acquisition proceedings, the four acquisition proceedings be reopened to determine what restrictions should be placed in Frisco certificates. Upon reconsideration, the entire commission reversed in part, stating that Frisco was not in violation of its then unrestricted certificates, and so the test of violation is whether the operations depart from the terms of the certificate, and the entire commission said, since they are consistent with the present certificates, there is no violation, but the entire commission left open the issue of whether the certificates should be modified to contain such a reservation of power to impose conditions. In the reopened acquisition proceedings, Division 5 in 1951, and the entire Commission in 1953, held that the issuance of the four certificates of public convenience and necessity without the reservation of power to impose conditions, required by the original reports of Division 5 in authorizing the acquisitions, was the result of inadvertence.
Felix Frankfurter: What was the date when the whole commission set a new hearing, (Inaudible), the hearing of 1951 that you just mentioned. That was begun as a result of the hearing set by the Commission when?
Robert W. Ginnane: Well, Division 5 in 1943 had directed that the proceeding to be reopened, on reconsideration the entire Commission sustained that portion.
Felix Frankfurter: What was the date of that? What I want to know that judgment is from 1943 or 1951?
Charles E. Whittaker: (Inaudible) actually why it took 1939 to 1953 in this administrative phase 14 years?
Robert W. Ginnane: I think a good chunk of it can be accounted for by the impact of the war. Well the impact of World War movement, there was no problem -- effect on competitors. There was no urgency to protecting competitors from any error there may have been in the certificates, because every motor carrier in the country had more business than it could handle. Then shortly after the war, beginning about 1948, there was under way both before the Commission and ultimately coming to this Court to be decided in 1951, the protracted Rock Island Motor Transit litigation, which involved the question whether under any circumstances the Commission could insert in a certificate such a reservation of power to impose future conditions, and that issue, although the Commission under any circumstances could impose such a reservation of power, was not settled by this Court until 1951, I think in February 1951. Thereafter Frisco brought a suit in the Court below which was -- with Judge Moore dissenting to set aside the Commission's order. We contend first that the Commission does have power to correct a certificate of public convenience and necessity, to confirm it to the findings and conditions which the Commission under the compulsion of law puts in its reports to support the issuance of a -- to support the grant of operating authority.
Felix Frankfurter: Why do you say under compulsion of law?
Robert W. Ginnane: In the absence of appropriate findings.
Felix Frankfurter: Pardon me?
Robert W. Ginnane: In the absence of appropriate findings of the Commission's act will be set aside by the courts.
Earl Warren: We will recess now.