Fiallo v. Levi
406 F. Supp. 162
E.D.N.Y
1975
Check Treatment

*2 Judge, MOORE, Circuit Before BRAMWELL, Dis- WEINSTEIN Judges. trict Judge: MOORE, Circuit challenging the con- This an action stitutionality of two classifications of al- by Congress part of a iens established as comprehensive scheme for the admission con- of aliens into Immigration tained and National- (the ity “Act”), Act Title 8 U.S.C. § specifically seq. et chal- Plaintiffs lenge “parent” definition the Act’s and “child” insofar the re- excludes lationship unwed, biological fa- between thers children.1 legitimating parents parent 1101(b)(1), or at section is relevant legitimation. the time such reads: which (D) child, by, through an means an unmarried “child” term whom, age twenty-one years status, privi- person or on whose behalf under lege, sought by or benefit virtue of the child to its natural (-A) child; or mother; (B) stepchild, out or not born whether (E) adopted age a child while under provided wedlock, child had years of fourteen if the child thereaf- has years eighteen age at reached the legal custody of, ter been in the creating marriage the status time the with, adopting parent par- resided occurred; stepchild years: Provided, ents for at least two adopt- (C) legitimated That no natural law such under a child thereafter, by domicile, ed child shall under virtue of such residence or the child’s parentage, any right, privi- domi- accorded residence or the law of the father’s lege, chapter. cile, or status under this the United or outside whether (F) child, age place legitimation be- at takes fourteen if such petition age eighteen the time a is filed in his behalf to reaches fore the child custody legal years accord a classification immediate the child is subject of the exclusion is The effect declared that Fiallo senior could not be question the aliens restrictive nu- since an American citizen quotas illegitimate. present, merical and labor certification his child was At requirements living together parents are waived for indi- both qualify child; although viduals who chil- with their *3 meaning Act, dren, qualify parent the within the of of father a if he le- could as permanent gitimated son, boy’s American citizens his he and the marry. residents.2 are three of Plaintiffs sets mother do wish to biological unwed, their ille- fathers and Cleophus Warner, a naturalized Amer- gitimate offspring. Both the aliens ex- citizen, attempted ican ille- have his by cluded of Act section the and the gitimate son Serge, a of the citizen permanent or American citizens resi- officially Indies, French declared West dents who are these aliens’ meaning to be his child the within biological children or have by filing petition the Act immi- a with joined plaintiffs suit; in this their gration York, authorities in so that New claim is that the classification boy might permanently the remain unconstitutional, is on its face since country. his petition father in this The biological unwed fathers are excluded rejected boy was since the was neither biological unwed while mothers are not. legitimated the father’s nor offspring, and he hence could not meet three-judge con- ordered court was A the Act’s definition of a child. vened, plaintiffs moved this have action, Trevor and Arthur Wilson are two class for certification Court twenty-one years age summary judgment permanent brothers under in- and a permanent follow, who are junction. reasons residents the For the which denied, judgment United States. After the motions are death their those biological they sought mother defendant. The facts have is entered for the father, Jamaica, dispute, summa- citizen of offi- are not in cially parent briefly. classified as their so that rized might qualify he cy permanent for residen- Fiallo, infant and an Amer- Ramon country. in this It is not clear birth, by applied through ican citizen — petition already whether their has by application on behalf submitted denied, but denial is certain the since Consul the United States his mother—to boys legitimated were never and hence Republic have his Dominican qualify parent father cannot as a officially to be his alien father declared under the Act. immigration laws, parent under so might permanent- alien fathers and latter remain son in this that the ac- only tion ly believe that their Ramon Fiallo’s the United States. realistic ave- stating nue of petition rejected, admittance to this the Consul was complied 1151(b) relative preadoption section who have this ti- re- tle, ophan proposed who is an any, quirements, because the death if the child’s disappearance of, par- or abandonment or Provided, de- natural no residence: That by, separation from, any adoptive sertion prior or loss such ent or parents, thereafter, by both for of such whom sole or virtue child shall surviving parent incapable privi- providing any right, parentage, is be accorded proper provided chapter. lege, care which will be or status under this if child admitted to the United States and (2) “parent”, “father”, writing irrevocably terms who has released parent, “mother” mean a emigration adoption; child or mother for only by adopted by where the exists reason who has been abroad a United spouse person- circumstances set sub- forth States citizen and his (1) ally division of this prior subsection. saw and observed the child to or during adoption proceedings; or who coming adop- is to the United 1182(a) (14). 1151(b), spouse tion § § U.S.O. 8 U.S.C. United States citizen and exception The Court without permanent through has basis is classifica- Congress’ plenary power sustained Ameri- or child of an make rules admission aliens can Fial- citizen resident. possess and to exclude those who sought those lo has a labor certificate senior characteristics past; unsuccessfully sen- Wilson [Ojver forbidden. no conceivable only job alleges for which ior subject legislative power handy- general qualified he —that complete more than it required cer- for which the one man —is over the admission of aliens. granted. is not tificate Mandel, Kleindienst v. jurisdiction Subject is con- matter 766; on this Court section 279 ferred (quotation marks cita- Act, Title 8 U.S.C. 1329. *4 omitted) tions present question A threshold is power The limits to the exercise of this standing regard to ed to Fiallo’s few, for an alien has no constitu action. The administra maintain this right tional to enter or remain this this tive on which Fiallo decision bases country, supra. Mandel, Kleindienst v. by petition the suit the denial of Moreover, may he denied entrance be Domingo. Consul United States at Santo grounds constitutionally which would be granting denying of consuls Decisions suspect impermissible in the context immune a held visa have been to be policy, race,3 namely, physi of domestic judicial See, from review. Loza- e. condition,4 political beliefs,5 cal sexual (9th Bedoya INS, Cir. v. 410 F.2d 343 proclivities,6 age,7 origin. and national 1969). note, however, peti that the We question here tion in did not constitute regulating admission of In the application pre visa, an for a but was spouses, parents, the and aliens who are immigrant liminary declaration sta per of American citizens children tus. not non will extend consular We residents, Congress has chosen manent yule reviewability, insofar has as that relationships specify the kind of to beyond grant recognized, been actual the immigra are, purposes the predicated denial of visa. This laws, terms. those embraced within tion upon entirely our reluctance to insulate perfectly proper exercise This is a any public from actions official Congressional responsibility to admit judicial scrutiny, thereby foreclose country individuals who those into this plaintiffs seeking group of from relief popu our to additions will be desirable Fiallo, in the courts. Plaintiff there who will includes individuals lace. This fore, bringing is not barred this from government9 system respect our action. our useful additions labor who will be Turning force,10 lives re merits, well as those whose we be gin personal im proposition Congress’ of conduct flect standards that society’s power portant of morali to our sense to make rules for the admission Congress’ ty. view about expulsion exceptionally And while the of aliens is parental rela- kind of marital or broad. what (9th INS, (2d INS, 8. Faustino v. Cir. 432 F.2d v. 499 F.2d 3. Dunn denied, 1970), cert. 1974). Cir. 91 S. (1971); Hitai v. Ct. (2d Esperdy, 4. U. v. F.2d S. INS, 1965), (2d cert. F.2d Cir. 1960). Cir. denied, 36, 15 L.Ed.2d Mandel, supra. v. 5. Kleindienst INS, Boutilier 6. 387 U.S Mandel, supra. 9. Kliendeinst v. 1563, 18 L.Ed.2d g., Buckley Gibney, F.Supp. Attorney General 7. Nazareno 1975). (S.D.N.Y.1971). (D.C. Cir. F.2d 936 age encouraged twenty-one in this coun- te al be try may ien gard the individual views into this re differ courts, deny quotas, it is numerical but to held members legis- usurp privilege judiciary that same to citizen for the not Congres- age. replace Accord, under that Perdido v. lative function 420 F.2d And standards with its own. sional analogous situation the District ruled on the A of courts have number upheld application Circuit Columbia immigration whether, question aspect of one of the Act’s restrictive ap- field, Congress constitutionally provision definition child to the respect ply standards with own granting priority the Act status to the relations, and note familial we status of daughters sons of American consistently power citizens;11 holding the effect of was Diogo, 320 upheld. States v. In United deny child, hence status 1963), (2d held this Court F.2d 898 statutory benefits, consequent to al marriage law that a valid state adopted iens who American citi were recognized as valid under need birthdays.12 zens after their fourteenth laws. Attorney Nazareno General United Congress may adopt fed- Of course States, supra. eral bona standard of fides immigra- denying purpose of limited There no doubt Con *5 priorities persons gress tion riages to whose mar- can which establish classifications standard. granting do not meet that result in the of to one benefits standard, in individuals, That embodied the Con- group to and their denial gressional understanding of the terms immigration another. laws Unless the “marriage” “spouse” any or those wholly question in are devoid immigration appear terms in the stat- purpose,13 are conceivable rational course, is, of the relevant utes stand- fundamentally achieving goal aimed at immig apply deporta- ard in to exclusion regulation to unrelated the brought proceedings tion the ration,14 they are not unconstitutional statutory provisions appropriate. 320 equal right pro encroachments on the to F.2d at 905. tection of the laws. Legal request the In At the Court the (2d Faustino v. 432 F.2d 429 Society representing plaintiffs Aid 1970), the Cir. denied, cert. submitted a most able and exhaustive L.Ed.2d 824 we demonstrating post-trial memorandum held that was not for unconstitutional many permit via statistical tables treatises to citizen children over 1153(a)(1). regulating 11. 8 expulsion U.S.C. the admission and Chapman, of aliens. Noel v. 508 F.2d types 12. This is one of the several of individ- (2d 1975). might commonly children, uals whom we call but who are excluded from the Act’s defini- regard 14. In this we note that where the tion of that term. Others excluded are mar- Congressional purpose regarding law twenty-one years ried children over regulate immigration aliens is not but age, stepchildren eighteen who were over invidiously against discriminate American marriage creating when the their status oc- citizens, permanent residents, already-ad ' curred, legitimated children who were after aliens, mitted that law cannot —in contrast they eighteen. Similarly, were the mothers to the one under consideration here —with these individuals ac- not scrutiny. stand constitutional See Sun Mow parents corded the status of within mean- the Wong Hampton, 500 F.2d ing of the Act. 1974) ; Ramos v. United States Civil is no need that there 13. This held Commission, Court F.Supp. 361, Service compelling apply (D.Puerto state interest test 1974) the ; Rico Graham v. Rich cf. alienage immigration cases, is not ardson, since L. legisla- purposes suspect for classification Ed.2d 534 law, therefore, the As a matter of giving in- its the recognition thesis that “courts are immigration challenged provisions are legal creasing reality arbitrary capricious to be not so unconstitutional; mothers, fathers, that unwed like have accordingly, con- we close children.” ties provocative plaintiffs’ statis- clude that (Post-Argument Memorandum, p. argument, ably documented tics and From these bib- statistics extensive Congress’ certainly would merit which liography conclusion counsel draw the weight given here, attention, cannot be un- that “the leaves no evidence rational pol- engage kind of lest this Court derpinning discriminatory treatment properly icy-making activity which ille- unwed natural fathers and their legislative province of branch gitimate children, no doubt of and leaves judiciary. patent unconstitutionality of the se- urge Congress’ pri- vere and extreme form of discrimination Plaintiffs statutory provisions mary exempting purpose effectuated challenged (Id. p. 21). herein.” These and children of American citizens say (Id. 1), conclusions, plaintiffs p. quota limita- residents irrationality require- demonstrate “the utter certification tions and labor presump- to- unwarranted conclusive families to be ments was to enable challenged pro- gether tions effectuated Without States. ” statutory policy . question, visions . . behind one; awas how- enactments benevolent However, in view of the need to plaintiffs’ unspo- ever, accept cannot we procedures establish administrative assumption they, and not Con- ken process abroad which can gress, determine constitutes applications extremely efficiently, avoid “family” shall be allowed investigation problems difficult priority enter this basis. proof, potential minimize the language quite clear claims, say leg sham we cannot that the fathers and their exclusion unwed unwed, *6 islative decision to exclude logical bio illegitimate children; the fact Con- that illegitimate their fathers and gress family upon type focused statutory children from the definitions which it determined should have the patently and child is unreason emigrate right our en masse supra. INS, able. For Faustino v. Cf. may it have indicates that well shores biological example, the names of while balance, that, unwed fathers decided routinely appear mothers on such docu their would not such relations with have certificates, ments as this not birth illegitimate justify as children would be the case where unmarried fathers being given exemption special their this acknowledged paternity have not offi immigration require- from the -normal cially at about the time Al of birth. apply all individuals other ments seeking though such evidence would not neces residency. permanent visas sarily be conclusive of one’s as a status parent, perceive nevertheless we that might arguendo Even if it be more difficult for an be assumed unrelated pose un biological, adult to fathers should as child’s mother than a uAwed der child’s where the certifi all circumstances be accorded birth rights plaintiffs’ parents, cate constitu contains a definite and identi name only. prevail. possi- fication of the mother claim cannot tional bring cal each father could then persuasively father; the Government 15. Counsel ever argument plaintiffs’ fathered, over all of the children he has suggested at oral sobering if and thereafter children could each of those consequences have could position bring could immigration mother, an unwed over his or her who officials: adopted bring bring all her chil- living then over could here mother dren, each etc. etc., etc., her all of biologi- her his or over could of whom automatically in- on that basis alone be joining family bility closest one’s granted validated to all. privilege is United States by statute, right given by anot the Con- issue Consideration the class action stitution. unnecessary light deci- our sion. There can be no doubt but that [the

appellants] as unadmitted and non- (dis- Judge WEINSTEIN, District resident aliens have no constitutional right senting) : enter and remain this country. Press, supra, See Galvan I. Issues 503-532, 347 U.S. at 737. It equally clear that their wives as constitutionality defini- resident aliens have no constitutional “parent” Im- tions of “child” right keep theory them here on the migration and Naturalization Laws is integrity family pro- that the of the challenged. 101(b)(1) Section by equal protection principles. tected Nationality Immigration Act 1101(b)(1) (Act), Title 8 U.S.C. Chapman, Noel F.2d (2) (1970). (2d mothers their Unlike illegitimate children, fathers, and their applied by The same rule illegitimate children, are excluded seeking Court when individual “parent” the definition of and “child”. challenge expulsion an alien’s was the They ineligible are therefore for certain alien’s United States citizen-child. En given exemptions citizens’ relatives INS, ciso-Cardozo F.2d trying country: to enter the citizen (2d 1974); Faustino v. su cf. migrating can have fathers their il- pra. recognized Chap As we in Noel v. exempted from nu- supra man, 1027-8, sep at the burden of quotas merical certification labor aration from kin one’s which occurs requirements “immediate rela- properly when an alien relative is ex- tives”; citizen and resident cludable under our laws illegitimate children can not have and the American citizen or resident de migrating exempted from the la- termines not to leave this in or requirement. bor certification Insofar alien, der to be with the is not pertinent, provision the definitional equivalent destruction reads: marriage family relationship. “(1) The term ‘child’ un- Certainly means an involved, a difficult choice is person twenty-one married but it is not one which is forbidden *7 years age of is—who the Constitution. Robles v. While we are not unmindful of Enciso-Cardozo v. that the ly laws ally impermissible tiffs’ at times F.2d 1179 1973); that such incidental of Constitution. Noel v. parent as the (1st plight, Silverman operation Plaintiffs’ painful and child works a constitution INS, operation have is not 1970); we have, of the Act’s definition INS, supra; accord, F.2d some, impact hardship on them. of the Perdido v. final Rogers, Chapman, supra; held in violative but it cannot argument on the fami immigration The law is (10th 437 F.2d the of plain past Cir. is U.S.C. § stances mother ists ‘mother’ “(2) through sought by status, of the child to its natural [*****] [******] (A) a (D) by. subsection.” The an only set 1101(b) reason of legitimate child; mean a whom, terms privilege, forth in where virtue of the or on ‘parent’, parent, subdivision or benefit whose behalf a or relationship the circum- child, ‘father’, mother; (1) [*] by, ex- is case of fathers of citizen (1) presented questions The only if is available the child waiver making diffi- it more a statute whether foreign A mother is issue. parent his child—one and for a cult illegitimate citizen would have ob- resi- permanent citizen is a whom tained the waiver. together in this live dent —to solely the sex because Serge Cleophus and Warner Plaintiffs valid illegitimacy child and the Warner, and son father Amendment; Fifth Warner, Cleophus a naturalized citi- pow- is without court federal whether a Serge zen, unwed father of is the War- be- invalid statute such to declare er ner, who born the French was West part is a cause it ap- Mr. Indies name Warner’s no. answers laws. Serge’s pears certificate, on birth he equality road Constitutional Serge’s registered shortly aft- as father women. well as open men as sexes is Serge’s birth, er and he has acknowl- being de- plaintiffs these Each edged paternity. sup- Mr. Warner part “life his critical prived of a ported his son since the child’s birth. process of law.” due . without Serge, par- In 1969 accord with his Amend.; Four- id. Fifth U.S.Const. cf. desires, ents’ his own entered the Amend, protection of (“equal teenth United States to live his father. laws”). - steps Father and son took to obtain an Legal between men discrimination immigrant permanent visa and residence illegitimates legitimates women Serge Immigra- status in 1972. The longer is no toler- with no rational basis tion and Naturalization laws allow citi- Where, here, invidi- ated. as zen alien children into punishes American out discrimination the United States “immediate rela- by denying them familial asso- citizens regard applicable tives” without ciation, precious of the most attri- one immigrants. numerical limitation say humanity, the courts should butes petition Mr. Warner’s was denied on the plain: what is the statute is unconstitu- ground Serge legiti- was not his wrong tional. The required by mate issue as Had statute. characterizing child is not reduced petition a mother who was a “biological father”, the one as a citizen, naturalized or had the child been regard progeny. disdain for his Such legitimate, petition would have been incompatible for filial affection granted. highest embodying a Constitution ideals a civilized nation such ours. and Earl Wilson and Trevor Plaintiffs Wilson, sons and Arthur father II. Facts Wilson, are now Trevor and Earl the United residents Ramon Fiallo Ramon Plaintiffs in 1957 Fiallo-Sone, in Jamaica were born son and father respectively. Arthur Wilson Ramon Fiallo is a United citi- illegiti- boys acknowledges zen, City born New York in 1971. *8 sup- them and He lived with mate sons. Although Fiallo-Sone, his Mr. 1968, time ported which at them until mother, was not married to his his fa- City their they York moved to New ther’s name his on birth certifi- appears ’ Mr. Wil- until 1974 From 1968 mother. him cate nurtured and his father has relationship his maintained his son since his birth. An American consul correspondence. He visits sons has informed Mr. Fiallo-Sone that he is support financial- them also continued eligible immigrant for an visa or 1974, the in ly. mother died their After permanent residence status without a to come boys father their asked two certificate, labor and that while the la- them. live with States United requirement bor certificate in is waived 170 stay only power court’s would be no different. able to But Mr. Wilson was emergency Blacks, example, long al- excluded from visa Were as an

for as illegiti- list of those American citizens children lowed. Since in in mate, to settle could their relatives re- is unable without Wilson Mr. gard quotas, country certifica- no court would let the a without labor Constitution, in in Mr. Wilson’s statute stand. The a mother tion. Were legitimate, particular, Amendment, pro- the Fifth position, children or were the parent from have been able to enter tects citizens abusive or discrimi- would natory government Packaging country certifica- action. labor discriminatory classification of citizens tion. legislation alienage can not insulate it Law III. judicial scrutiny. from position il- of these three families ample Supreme There Court the severe effects on American lustrates precedent for enforce intervention when permanent citizens residents ment of citizens’ Consti the Act burdens male the Act’s discrimination between rights. Brig tutional United v. States legiti- parents and between and female 873, 2574, noni-Ponce, 95 S.Ct. 422 def- mate and (1975); L.Ed.2d 45 607 Almeida-San gov- initions of child. The States, chez v. United 266, 413 U.S. 273 does not contend that the ernment rela- 5, 2535, 2539, n. 93 S.Ct. tionship to child does not exist (1973). also, See v. United Burrafato strong that a emotional between bond Dept. State, (2d 523 F.2d 554 lacking father and child (dicta). 1975) Cir. The Court has rec- position is these cases. Its the ognized procedural process due compels statute the discrimination. Fourth Amendment limitations on the government’s insists, statute, expulsion defendant is not This exclusion and subject judicial g., Wong See, Yang Sung Characteri aliens. e. review. zing McGrath, 33, 49-50, the classification as one of aliens 339 U.S. 445, 454, purpose (1950) ; for the of their exclusion from 94 L.Ed. 616 Kwock Congres White, country, Fat 454, Jan 459, 464, contends 253 U.S. power 566, 570, 40 to exclude aliens unfet sional S.Ct. L.Ed. Ping Yamataya Chae Chan Kaoru Fisher, tered. 130 U.S. S.Ct. 47 L.Ed. 527 F. Lennon v. L.Ed. 1068 Faustino v. Im cf. 1975). migration Service, (2d and Naturalization 2d 187 Cir. (2d 1970) (Per 432 F.2d Cir. courts When have been faced with Curiam), denied, cert. challenges to other sections of the Act classify aliens terms simple relationship citizens, they But is not this case classi- have not fying purpose prefer- equal protection for the shrunk analysis. aliens from traditional ring entry. Immigration some over others for Rath- See Perdido v. immigrants’ er, Congress hinged Service, ac- Naturalization 420 F.2d 1969); cess to Cir. Faustino v. Immigration permanent Service, to citizens and residents. & Naturalization question F.Supp. 212, The Congressional (S.D.N.Y.1969), thus becomes whether aff’d, (2d 1970), classification citizens 432 F.2d 429 cert. severely denied, residents which 27 L. disadvantages may escape Chap tradition- Ed.2d them Noel v. Cf. scrutiny merely man, (2d al constitutional because 508 F.2d 1026-9 alienage legislation. it is set in *9 If the classification were based So a blatant discrimination on the ba- legitimacy, race, gender gender rather than legitimacy sis and is seldom

171 Illegitimacy 1199, in modern 7-8 Cong., found statutes. 1st Sess. 85th No. Cong., rights 1365, H.R.Rep. (1957); a basis denial of available 82d No. legitimates repeatedly (1952); U.S.Code has been struck 1957 29 2d Sess. 2020-2021; lacking Admin.News, pp. in ration Cong. down as invidious and & See, (remarks g., (1957) Cong.Rec. al e. v. Weinber Jimenez basis. 16719 103 2496, 628, Cong.Rec. ger, 632, 94 S.Ct. 417 16307 Kennedy); U.S. 103 Senator (1974); 2499, Ro- Representative New Jer 41 L.Ed.2d (remarks 363 (1957) Errico, sey Rights Organization Immigration v. Ca v. Service ; dino) Welfare 1700, 620-621, 9, hill, 619, 214, n. S.Ct. 93 S.Ct. 87 411 U.S. and 219-220 385 U.S. (1966); (Per 1701, (1973) 36 L.Ed.2d 543 Cur 318 477-478, L.Ed.2d 473, 17 531, ; Perez, 535, iam) 534- Esperdy, F.Supp. 409 Gomez v. U.S. 239 v. Nation 538, 875, must 56 872, 35 L.Ed.2d The courts (S.D.N.Y.1965). 93 S.Ct. 535 legislative purpose (1973) (Per Curiam); general Weber Aetna v. distill 164, history, particu- Casualty Co., legislative Surety 406 U.S. 1406-1407, 175-176, 1400, supports 31 reasonable larly 92 S.Ct. where Weinberger (1972); interpretation. v. American L.Ed.2d 768 Glona non-sexist 648-52, 636, Liability Wiesenfeld, Insurance, 391 420 U.S. Guarantee v. 1233-35, 1517, 1225, 514 73, 76, 1515, L. 88 20 U.S. S.Ct. Congressional Louisiana, (1968); Levy v. 441 In view Ed.2d families, no 1509, there 68, 70-72, reunite purpose 1510- 88 391 U.S. S.Ct. statutory classi- (1968); for the 1511, v. basis Tanner 20 L.Ed.2d 436 rational denying parent-child status Weinberger, fication F.2d 51 525 illegi- and their natural unwed have also to classifications Gender automatically while timate as invalid. been treated family re- granting persons in other toit Dept. Employment Securi Turner v. lationships. 249, ty, 44, 96 L. S.Ct. 46 423 U.S. Weinberger (1975); Ed.2d 181 v. Wie Congress motivated were if Even 1225, 43 636, senfeld, 420 U.S. against men discriminate desire Stanton, (1975); v. Stanton L.Ed.2d 514 way Ameri- illegitimates harmful in a 7, 1373, 421 95 U.S. S.Ct. 43 L.Ed.2d 688 citizens, stand. could not statute can (1975); Taylor Louisiana, v. 419 U.S. firmly It is established that a natural 522, 692, 95 42 S.Ct. L.Ed.2d 690 mother, parent, whether father or Richardson, Frontiero v. 411 child, not, whether have U.S. 93 36 L.Ed.2d 583 S.Ct. fundamental, constitutionally protected Reed, Reed v. 404 92 companionship interests mutual 30 S.Ct. L.Ed.2d 225 Gins together. life Constitution, burg, 44 Gender and the (1975) U.Cinn.L.Rev. 1 . rights “The to conceive and to raise legislative history one’s children have been deemed ‘es the statu- tory sential,’ Meyer Nebraska, scheme no doubt leave the ex- 262 U.S. 390, 399, purpose 625, 626, clusive was to S.Ct. L.Ed. family (1923), rights maintain reunite units ‘basic civil man,’ perma- Oklahoma, Skinner include United citizen 316 U.S. 535, 541, nent resident Not S.Ct. members. a shred 86 L.Ed. ‘[r]ights produced support evidence has far more precious government’s property . . . claim that than statuto- rights,’ May ry spurious purpose prevent pa- Anderson, was to ternity 840, 843, claims unwed natural fathers. S.Ct. L.Ed. (1953).” provision’s co-sponsors put As one of praiseworthy it: “This bill is fun- Stanley v. Illinois, purpose reunite damental families.” —to L.Ed.2d (remarks Cong.Rec. also, Weinberger See Salfi, 422 also, H.R.Rep. Pastore). Senator See *10 172 Casualty & ing (1975); Aetna Weber v. rule that mother should have child 164, 169, Co., Surety 406 proof unfit); Conley absent she is v. (1972); 1403, L.Ed.2d 768 31 1400, Johnson, 122, N.C.App. 24 S.E.2d 210 88 68, 71, Louisiana, (1974) (court 88 Levy v. order visitation rights (1968). 1511, 1509, 436 illegitimate 20 L.Ed.2d for father de spite objection); mother’s Hammack v. important for a child no less “It is Wise, 118, (W.Va.1975) 211 S.E.2d 121 . its cared be (father custody illegitimate awarded parent male rather than when that child); ex State rel. Lewis v. Lutheran no less And a than female. Services, 1, Social 59 constitutionally Wis.2d protect- 207 N.W.2d mother, has a (1973) (father 826 care, must right ‘companionship, ed given hearing management’ termination of his custody, ‘the chil- parental rights); Davidson, K. R. raised, [whjch] Gins he has sired dren undeniably burg Illegiti Kay, and H. and, “Text Note: deference warrants macy Discrimination,” and Sex Based powerful countervailing in- absent Sex Based Discrimination Illinois, Stanley 309-329 protection.’ terest, v. (1974); Note, Emerging 1212, 1208, Constitu 405 92 tional Protection of the Putative Fa (1972).” 551 31 L.Ed.2d Rights, ther’s Parental 70 Mich.L.Rev. 636, Weinberger Wiesenfeld, 1581 1235, 514 legislatures State systematically revising expand pa laws in order to recognize that fa now unwed Courts rights See, rental of unwed e. fathers. strong thers, mothers, like often have g., (1974); Fla.Stat.Ann. 63.062 Ha § ties affection to their (Supp.1974); waii Rev.Laws 578-2 S. § continuing desire a rela 9.1-1, E, ch. H.Ill.Ann.Stat. subd. §§ tionship with them. e. Miller 9.1- 9.1-12a Burns Ind.Stat. 1974) Miller, F.2d 504 1067 (Supp.1975); Ann. 31-3-1-6 § Me. (per (statute curiam) permitting adop (Supp.1975); Rev.Stat.Ann. Mich. § notice to natural without father Comp.Laws 710.3, Ann. subd. § illegitimate unconstitutional); People ex 259.- (Supp.1973); §§ Minn.Stat.Ann. rel. Slawek v. Covenant Children’s 24, 259.26, (Supp.1975); 259.261 N.D. Home, Ill.2d N.E.2d 291 14-15-20 § C.C.A. R.I.Gen. (statute precluding father of ille (Supp.1974); Laws 15-7-5 Utah Code § gitimate asserting right to child (Supp.1975); Ann. 78-30-4 § Va.Code § denying custody unconstitutional); (Supp.1975); 63.1-225 Wash.Rev.Code

In Mich.App. Re Mark T., 8 122, 154 26.32.030, 26.32.085, 26.24.190, Ann. §§ (1967) (custody N.W.2d illegit- (Supp.1974); 26.28.110 ch. Wisc.Stat.Ann. imate child awarded father after 48.02(ii), 48.42, § and 48.425 adoption) mother’s release of child (Supp.1975). cited cases at N.W.2d 33 n. 13; F., at 35 n. R. N.W.2d This clear trend is consonant with na N.J.Super. 396, (Juv. A.2d 808 recognized by policy tional Dom.Rel.Ct.1971) (denying & father and Rights adoption Equal Amend right his natural child of to see each ment and in its enactment of a series of deprives other equal protec them of designed other statutes to overcome out tion) ; Application R., Juan 374 N.Y.S. concepts moded of sex discrimination. 2d 541 (Fam.Ct.1975) (putative fath See, g., Proposed Constitutional er who has paternity may established Amendment, Cong., S.J.Res. 92d 1st acquire action visiting rights Cong.Rec. Sess., H.R. litigating issues); custodial Cong., J.Res. 92d Sess., 1st Stone Chip, 68 Misc.2d 326 Cong.Rec. Rights Civil (Fam.Ct.1971) N.Y.S.2d 520 (criticiz- VII, Act of Title U.S.C.

173 Research, Child Health Maternal and 1963, Pay (1970), Equal Act of 2000e-5 Service, HSMHA). 206(d) (1970). 29 U.S.C. § yet Congress has not fact that The striking of An indication even more through opportunity to winnow had strength parental the fathers’ of statutory materials federal the enormous increasing commitment is that an num- policy present carry out its clear to illegitimate living ber of children are argument that gives force added of with their In fathers. 1970 13.9% vestigial such discrimi- of remainder eighteen living the children under with be in the Act nation embodied single is, parents parents, who have by the courts. closely reviewed married, never lived their sin- empirical literature science Social gle compared in fathers, 9.2% why courts, as well studies illustrate Census, 1960. U.S.Bur. longer legislative legislatures, allow no 1970, Population Census of the Charac- illegitimates fathers exclusion Population, Pt. teristics statutory discrimi- from benefits. Such (1973); Summary 2, Table 206 —See. over- an based on archaic nation is id., Population U.S. Census stereotype fathers. of unwed broad (1963). Table 185 pregnancies from exclusive result Most plaintiff good The three families are relationships long-term fa- between examples variety of situations E. mother. Sauber ther and M. strong illegiti- familial tie bonds Rubinstein, Experiences of the Unwed mate children their fathers. Ramon Herzog, (1965); as a Parent 27 Mother although parents, unmarried, Fiallo’s Fa- About *12 S.Ct. L.Ed.2d paternity proven, child if but a con- (1970). statutory presumption any clusive denies accepted government’s if we opportunity proof Even the case of an il- legitimate contention that the natural il- fathers of presump- child. A conclusive singled children out supposedly prevent were established to prevent spurious claims, spurious upheld claims can not be when statutory rationally potential scheme is not relat- for fraud is similar for the ed that end. Weinber- See Jimenez v. group groups receiving excluded and for ger, 628, 634-636, 417 U.S. S.Ct. Jimenez benefits. 2500-2501, 41 L.Ed.2d 363 where Weinberger, 628, 636-637, 417 U.S. provisions Court 2501-2502, invalidated S.Ct. 41 L.Ed.2d 363 Security denying (1974). Act children’s Agriculture Social Dept. U. S. Cf. to a insurance benefits subclass ille- Moreno, 413 U.S. S.Ct. gitimate children because the structure 37 L.Ed.2d 782 Vlandis v. reasonably Kline, related 441, 453-454, of the statute was 412 U.S. 93 S.Ct. purported purpose, prevention of 2230, 2237, L.Ed.2d Go spurious claims. Perez, 535, 538, mez 409 U.S. 93 S.Ct. 872, 875, (1973); Stanley 35 L.Ed.2d 56 Paternity maternity must be Illinois, 405 U.S. involving proven in le- cases claimed 31 L.Ed.2d 551 Glona v. Ameri gitimate legitimated children, Liability can Guarantee & Insurance illegitimate step-children and children to Co., 73, 76, 1515, 1517, and con- satisfaction of (1968). rigid pre This proof of sular officials. The burden of sumption replaced by must be “more in is on Unit- familial determining dividualized means” of permanent resident ed citizen or family relationship. Dept. Turner v. Immigration au- the alien relative. Employment Security, certificates, may require birth thorities marriage (1975). L.Ed.2d 181 baptismal certificates, certifi- Practically speaking, government’s records, cates, af- records, school census contention that the restrictive definition fidavits, letters, photographs, remit- necessary prevent spu- sup- proof tances, proof custody, nothing rious claims is plea more than a testimony, test, personal port, blood on behalf of administrative convenience. 204.2 evidence. and other C.F.R. But it has been clear for some time now spurious potential for that a upon scheme built administrative great for those included is as claims convenience cannot stand when invidious definitions the statutes’ discrimination results. Fron- illegitimate children child as Richardson, tiero v. claiming to be fathers. Women and men children mothers claiming legitimated, le- to be fathers gitimate, in a IV. Conclusion situation, respective step-child request summary judg- difficulty Plaintiffs’ children, would have as much granted. ment in proof their favor presenting fraudulent or ease Notes Unmarried “Some family have functioned as a since the 194; Pope, thers,” Welfare 1966 Child Cleophus child’s birth. Warner Part- “Unwed Mothers and Their Sex boys supported Wilson have been finan- ners,” Family Marriage J. 29 & the They cially by only their since fathers birth. Many (1967). fathers not depend upon now be their moth- with the continue their sole because of mother’s birth, the child’s Sauber er after choice live child in one without Rubinstein, supra, at also demon- but other. case and the mother’s death genuine interest concern strate Pannor, R. F. Mas- children. challenged for their provisions, exclud Evans, Fa- sarik, and B. The Unmarried ing only fathers and their (1971); Chaskel, “Changing ther 92 benefits, Par- Patterns Services Unmarried upon presumption based an irrebuttable ents,” Casework Social family fathers do not have close Physician Wessel, “A Looks at Services illegitimate offspring, ties with Parents,” 49 Case- for Unmarried Social presumption evi belied the statistical (1968). 11,12 work sociological family dence, evaluation of life, living and the in the three cases be facts those fathers not Even presumption many fore Such a func- us. their children assume in fact invalid. basis to the well- tions of fatherhood vital including being LaFleur, U. Cleveland Bd. Ed. v. financial support. One statistical S. and emotional Dept. Agricul study' United States found that between 83% 59% Murry, money ture of these fathers contribute Vlandis expenses approximately child’s Kline, L. Ewer, their children. visit 70% Service, Note, Irre Ed.2d and Child Health Maternal Cf. Presumption Doctrine in Project H-214-2, Characteristics buttable Court, Descriptive Supreme Harv.L.Rev. AAPP Unwed Fathers —A Study (unpublished, Div. Table 33 claiming assumed Whatever basis would a man the fa- there presump- once have been for such child and his ther sexist longer Rationality no tions exists. child. must light be viewed in the of current knowl- yet, quota And restrictions are waived edge. See Turner v. United step-child legitimated in the case of a