Petitioner, an unwed father whose children, on the mother's
death, were declared state wards and placed in guardianship,
attacked the Illinois statutory scheme as violative of equal
protection. Under that scheme, the children of unmarried fathers,
upon the death of the mother, are declared dependents without any
hearing on parental fitness and without proof of neglect, though
such hearing and proof are required before the State assumes
custody of children of married or divorced parents and unmarried
mothers. The Illinois Supreme Court, holding that petitioner could
properly be separated from his children upon mere proof that he and
the dead mother had not been married and that petitioner's fitness
as a father was irrelevant, rejected petitioner's claim.
Held:
1. Under the Due Process Clause of the Fourteenth Amendment
petitioner was entitled to a hearing on his fitness as a parent
before his children were taken from him. Pp.
405 U. S.
647-658.
(a) The fact that petitioner can apply for adoption or for
custody and control of his children does not bar his attack on the
dependency proceeding. Pp.
405 U. S. 647-649.
(b) The State cannot, consistently with due process
requirements, merely presume that unmarried fathers in general, and
petitioner, in particular, are unsuitable and neglectful parents.
Parental unfitness must be established on the basis of
individualized proof.
See Bell v. Burson, 402 U.
S. 535. Pp.
405 U. S.
649-658.
2. The denial to unwed fathers of the hearing on fitness
accorded to all other parents whose custody of their children is
challenged by the State constitutes a denial of equal protection of
the laws. P.
405 U. S.
658.
45 Ill. 2d
132,
256 N.E.2d
814, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, and MARSHALL, JJ., joined, and in Parts I and II of which
DOUGLAS, J., joined. BURGER, C.J., filed a dissenting opinion, in
which BLACKMUN, J., joined,
post, p.
405 U. S. 659.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
Page 405 U. S. 646
MR. JUSTICE WHITE delivered the opinion of the Court.
Joan Stanley lived with Peter Stanley intermittently for 18
years, during which time they had three children. [
Footnote 1] When Joan Stanley died, Peter
Stanley lost not only her but also his children. Under Illinois
law, the children of unwed fathers become wards of the State upon
the death of the mother. Accordingly, upon Joan Stanley's death, in
a dependency proceeding instituted by the State of Illinois,
Stanley's children [
Footnote 2]
were declared wards of the State and placed with court-appointed
guardians. Stanley appealed, claiming that he had never been shown
to be an unfit parent and that, since married fathers and unwed
mothers could not be deprived of their children without such a
showing, he had been deprived of the equal protection of the laws
guaranteed him by the Fourteenth Amendment. The Illinois Supreme
Court accepted the fact that Stanley's own unfitness had not been
established, but rejected the equal protection claim, holding that
Stanley could properly be separated from his children upon proof of
the single fact that he and the dead mother
Page 405 U. S. 647
had not been married. Stanley's actual fitness as a father was
irrelevant.
In re Stanley, 45 Ill. 2d
132,
256 N.E.2d
814 (1970).
Stanley presses his equal protection claim here. The State
continues to respond that unwed fathers are presumed unfit to raise
their children, and that it is unnecessary to hold individualized
hearings to determine whether particular fathers are, in fact,
unfit parents before they are separated from their children. We
granted certiorari, 400 U.S. 1020 (1971), to determine whether this
method of procedure by presumption could be allowed to stand in
light of the fact that Illinois allows married fathers -- whether
divorced, widowed, or separated -- and mothers -- even if unwed --
the benefit of the presumption that they are fit to raise their
children.
I
At the outset, we reject any suggestion that we need not
consider the propriety of the dependency proceeding that separated
the Stanleys because Stanley might be able to regain custody of his
children as a guardian or through adoption proceedings. The
suggestion is that, if Stanley has been treated differently from
other parents, the difference is immaterial and not legally
cognizable for the purposes of the Fourteenth Amendment. This Court
has not, however, embraced the general proposition that a wrong may
be done if it can be undone.
Cf. Sniadach v. Family Finance
Corp., 395 U. S. 337
(1969). Surely, in the case before us, if there is delay between
the doing and the undoing, petitioner suffers from the deprivation
of his children, and the children suffer from uncertainty and
dislocation.
It is clear, moreover, that Stanley does not have the means at
hand promptly to erase the adverse consequences of the proceeding
in the course of which his children were declared wards of the
State. It is first
Page 405 U. S. 648
urged that Stanley could act to adopt his children. But under
Illinois law, Stanley is treated not as a parent, but as a stranger
to his children, and the dependency proceeding has gone forward on
the presumption that he is unfit to exercise parental rights.
Insofar as we are informed, Illinois law affords him no priority in
adoption proceedings. It would be his burden to establish not only
that he would be a suitable parent, but also that he would be the
most suitable of all who might want custody of the children.
Neither can we ignore that in the proceedings from which this
action developed, the "probation officer,"
see App. 17,
the assistant state's attorney,
see id. at 29-30, and the
judge charged with the case,
see id. at 16-18, 23, made it
apparent that Stanley, unmarried and impecunious as he is, could
not now expect to profit from adoption proceedings. [
Footnote 3] The Illinois Supreme Court
apparently recognized some or all of these considerations, because
it did not suggest that Stanley's case was undercut by his failure
to petition for adoption. Before us, the State focuses on Stanley's
failure to petition for "custody and control" -- the second route
by which, it is urged, he might regain authority for his children.
Passing the obvious issue whether it would be futile or burdensome
for an unmarried father -- without funds and already once presumed
unfit -- to petition for custody, this suggestion overlooks the
fact that legal custody is not parenthood or adoption. A person
appointed guardian in an action for custody and control is subject
to removal at any time without such
Page 405 U. S. 649
cause as must be shown in a neglect proceeding against a parent.
Ill.Rev.Stat., c. 37, § 705. He may not take the children out of
the jurisdiction without the court's approval. He may be required
to report to the court as to his disposition of the children's
affairs. Ill.Rev.Stat., c. 37, § 705. Obviously then, even if
Stanley were a mere step away from "custody and control," to give
an unwed father only "custody and control" would still be to leave
him seriously prejudiced by reason of his status.
We must therefore examine the question that Illinois would have
us avoid: is a presumption that distinguishes and burdens all unwed
fathers constitutionally repugnant? We conclude that, as a matter
of due process of law, Stanley was entitled to a hearing on his
fitness as a parent before his children were taken from him, and
that, by denying him a hearing and extending it to all other
parents whose custody of their children is challenged, the State
denied Stanley the equal protection of the laws guaranteed by the
Fourteenth Amendment.
II
Illinois has two principal methods of removing nondelinquent
children from the homes of their parents. In a dependency
proceeding, it may demonstrate that the children are wards of the
State because they have no surviving parent or guardian.
Ill.Rev.Stat., c. 37, §§ 702-1, 702-5. In a neglect proceeding, it
may show that children should be wards of the State because the
present parent(s) or guardian does not provide suitable care.
Ill.Rev.Stat., c. 37, §§ 702-1, 702.
The State's right -- indeed, duty -- to protect minor children
through a judicial determination of their interests in a neglect
proceeding is not challenged here. Rather, we are faced with a
dependency statute that empowers state officials to circumvent
neglect proceedings
Page 405 U. S. 650
on the theory that an unwed father is not a "parent" whose
existing relationship with his children must be considered.
[
Footnote 4] "Parents," says
the State,
"means the father and mother of a legitimate child, or the
survivor of them, or the natural mother of an illegitimate child,
and includes any adoptive parent,"
Ill.Rev.Stat., c. 37, § 701-14, but the term does not include
unwed fathers.
Under Illinois law, therefore, while the children of all parents
can be taken from them in neglect proceedings, that is only after
notice, hearing, and proof of such unfitness as a parent as amounts
to neglect, an unwed father is uniquely subject to the more
simplistic dependency proceeding. By use of this proceeding, the
State, on showing that the father was not married to the mother,
need not prove unfitness in fact, because it is presumed at law.
Thus, the unwed father's claim of parental qualification is avoided
as "irrelevant."
In considering this procedure under the Due Process Clause, we
recognize, as we have in other cases, that due process of law does
not require a hearing "in every conceivable case of government
impairment of private interest."
Cafeteria Workers v.
McElroy, 367 U. S. 886,
367 U. S. 894
(1961). That case explained that "[t]he very nature of due process
negates any concept of inflexible procedures universally applicable
to every imaginable situation," and firmly established that
"what procedures due process may require under any given set of
circumstances must begin with a determination of the precise nature
of the government function involved, as well as of the private
interest that has been affected by governmental
Page 405 U. S. 651
action."
Id. at
367 U. S. 895;
Goldberg v. Kelly, 397 U. S. 254,
397 U. S. 263
(1970).
The private interest here, that of a man in the children he has
sired and raised, undeniably warrants deference and, absent a
powerful countervailing interest, protection. It is plain that the
interest of a parent in the companionship, care, custody, and
management of his or her children
"come[s] to this Court with a momentum for respect lacking when
appeal is made to liberties which derive merely from shifting
economic arrangements."
Kovacs v. Cooper, 336 U. S. 77,
336 U. S. 95
(1949) (Frankfurter, J., concurring).
The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one's children have
been deemed "essential,"
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S. 399
(1923), "basic civil rights of man,"
Skinner v. Oklahoma,
316 U. S. 535,
316 U. S. 541
(1942), and "[r]ights far more precious . . . than property
rights,"
May v. Anderson, 345 U.
S. 528,
345 U. S. 533
(1953).
"It is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither
supply nor hinder."
Prince v. Massachusetts, 321 U.
S. 158,
321 U. S. 166
(1944). The integrity of the family unit has found protection in
the Due Process Clause of the Fourteenth Amendment,
Meyer v.
Nebraska, supra, at
262 U. S. 399,
the Equal Protection Clause of the Fourteenth Amendment,
Skinner v. Oklahoma, supra, at
316 U. S. 541,
and the Ninth Amendment,
Griswold v. Connecticut,
381 U. S. 479,
381 U. S. 496
(1965) (Goldberg, J., concurring).
Nor has the law refused to recognize those family relationships
unlegitimized by a marriage ceremony. The Court has declared
unconstitutional a state statute denying natural, but illegitimate,
children a wrongful death action for the death of their mother,
emphasizing that
Page 405 U. S. 652
such children cannot be denied the right of other children
because familial bonds in such cases were often as warm, enduring,
and important as those arising within a more formally organized
family unit.
Levy v. Louisiana, 391 U. S.
68,
391 U. S. 71-72
(1968).
"To say that the test of equal protection should be the 'legal,'
rather than the biological, relationship is to avoid the issue. For
the Equal Protection Clause necessarily limits the authority of a
State to draw such 'legal' lines as it chooses."
Glona v. American Guarantee Co., 391 U. S.
73,
391 U. S. 75-76
(1968).
These authorities make it clear that, at the least, Stanley's
interest in retaining custody of his children is cognizable and
substantial.
For its part, the State has made its interest quite plain:
Illinois has declared that the aim of the Juvenile Court Act is to
protect "the moral, emotional, mental, and physical welfare of the
minor and the best interests of the community" and to
"strengthen the minor's family ties whenever possible, removing
him from the custody of his parents only when his welfare or safety
or the protection of the public cannot be adequately safeguarded
without removal. . . ."
Ill.Rev.Stat., c. 37, § 701-2. These are legitimate interests,
well within the power of the State to implement. We do not question
the assertion that neglectful parents may be separated from their
children.
But we are here not asked to evaluate the legitimacy of the
state ends -- rather, to determine whether the means used to
achieve these ends are constitutionally defensible. What is the
state interest in separating children from fathers without a
hearing designed to determine whether the father is unfit in a
particular disputed case? We observe that the State registers no
gain towards its declared goals when it separates children from the
custody of fit parents. Indeed, if Stanley is a
Page 405 U. S. 653
fit father, the State spites its own articulated goals when it
needlessly separates him from his family.
In
Bell v. Burson, 402 U. S. 535
(1971), we found a scheme repugnant to the Due Process Clause
because it deprived a driver of his license without reference to
the very factor (there, fault in driving, here, fitness as a
parent) that the State itself deemed fundamental to its statutory
scheme. Illinois would avoid the self-contradiction that rendered
the Georgia license suspension system invalid by arguing that
Stanley and all other unmarried fathers can reasonably be presumed
to be unqualified to raise their children. [
Footnote 5]
Page 405 U. S. 654
It may be, as the State insists, that most unmarried fathers are
unsuitable and neglectful parents. [
Footnote 6] It may also be that Stanley is such a parent,
and that his children should be placed in other hands. But all
unmarried fathers are not in this category; some are wholly suited
to have custody of their children. [
Footnote 7] This much the State
Page 405 U. S. 655
readily concedes, and nothing in this record indicates that
Stanley is or has been a neglectful father who has not cared for
his children. Given the opportunity to make his case, Stanley may
have been seen to be deserving of custody of his offspring. Had
this been so, the State's statutory policy would have been
furthered by leaving custody in him.
Carrington v. Rash, 380 U. S. 89
(1965), dealt with a similar situation. There, we recognized that
Texas had a powerful interest in restricting its electorate to
bona fide residents. It was not disputed that most
servicemen stationed in Texas had no intention of remaining in the
State; most, therefore, could be deprived of a vote in state
affairs. But we refused to tolerate a blanket exclusion depriving
all servicemen of the vote, when some servicemen clearly were
bona fide residents and when "more precise tests,"
id. at
380 U. S. 95,
were available to distinguish members of this latter group. "By
forbidding a soldier ever to controvert the presumption of
nonresidence,"
id. at
380 U. S. 96,
the State, we said, unjustifiably effected a substantial
deprivation. It viewed people one-dimensionally (as servicemen),
when a finer perception could readily have been achieved by
assessing a serviceman's claim to residency on an individualized
basis.
"We recognize that special problems may be involved in
determining whether servicemen have actually acquired a new
domicile in a State for franchise purposes. We emphasize that Texas
is free to take reasonable and adequate steps, as have other
States, to see that all applicants for the vote actually fulfill
the requirements of
bona fide residence. But [the
challenged] provision goes beyond such rules.
Page 405 U. S. 656
"
"[T]he presumption here created is . . . definitely conclusive
-- incapable of being overcome by proof of the most positive
character."
Id. at
380 U. S. 96.
"All servicemen not residents of Texas before induction," we
concluded, "come within the provision's sweep. Not one of them can
ever vote in Texas, no matter" what their individual
qualifications.
Ibid. We found such a situation repugnant
to the Equal Protection Clause.
Despite
Bell and
Carrington, it may be argued
that unmarried fathers are so seldom fit that Illinois need not
undergo the administrative inconvenience of inquiry in any case,
including Stanley's. The establishment of prompt efficacious
procedures to achieve legitimate state ends is a proper state
interest worthy of cognizance in constitutional adjudication. But
the Constitution recognizes higher values than speed and
efficiency. [
Footnote 8]
Indeed, one might fairly say of the Bill of Rights in general, and
the Due Process Clause in particular, that they were designed to
protect the fragile values of a vulnerable citizenry from the
overbearing concern for efficiency and efficacy that may
characterize praiseworthy government officials no less, and perhaps
more, than mediocre ones.
Procedure by presumption is always cheaper and easier
Page 405 U. S. 657
than individualized determination. But when, as here, the
procedure forecloses the determinative issues of competence and
care, when it explicitly disdains present realities in deference to
past formalities, it needlessly risks running roughshod over the
important interests of both parent and child. It therefore cannot
stand. [
Footnote 9]
Bell v. Burson held that the State could not, while
purporting to be concerned with fault in suspending a driver's
license, deprive a citizen of his license without a hearing that
would assess fault. Absent fault, the State's declared interest was
so attenuated that administrative convenience was insufficient to
excuse a hearing where evidence of fault could be considered. That
drivers involved in accidents, as a statistical matter, might be
very likely to have been wholly or partially at fault did not
foreclose hearing and proof in specific cases before licenses were
suspended.
We think the Due Process Clause mandates a similar result here.
The State's interest in caring for Stanley's children is
de
minimis if Stanley is shown to be a fit
Page 405 U. S. 658
father. It insists on presuming, rather than proving, Stanley's
unfitness solely because it is more convenient to presume than to
prove. Under the Due Process Clause, that advantage is insufficient
to justify refusing a father a hearing when the issue at stake is
the dismemberment of his family.
III
The State of Illinois assumes custody of the children of married
parents, divorced parents, and unmarried mothers only after a
hearing and proof of neglect. The children of unmarried fathers,
however, are declared dependent children without a hearing on
parental fitness and without proof of neglect. Stanley's claim in
the state courts and here is that failure to afford him a hearing
on his parental qualifications while extending it to other parents
denied him equal protection of the laws. We have concluded that all
Illinois parents are constitutionally entitled to a hearing on
their fitness before their children are removed from their custody.
It follows that denying such a hearing to Stanley and those like
him, while granting it to other Illinois parents, is inescapably
contrary to the Equal Protection Clause. [
Footnote 10]
Page 405 U. S. 659
The judgment of the Supreme Court of Illinois is reversed, and
the case is remanded to that court for proceedings not inconsistent
with this opinion.
It is so ordered.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
MR. JUSTICE DOUGLAS joins in Parts I and II of this opinion.
[
Footnote 1]
Uncontradicted testimony of Peter Stanley, App. 22.
[
Footnote 2]
Only two children are involved in this litigation.
[
Footnote 3]
The Illinois Supreme Court's opinion is not at all contrary to
this conclusion. That court said: "[T]he trial court's comments
clearly indicate the court's willingness to consider
a
future request by the father for
custody and
guardianship."
45 Ill. 2d
132, 135,
256 N.E.2d
814, 816. (Italics added.)
See also the comment of
Stanley's counsel on oral argument: "If Peter Stanley could have
adopted his children, we would not be here today." Tr. of Oral Arg.
7.
[
Footnote 4]
Even while refusing to label him a "legal parent," the State
does not deny that Stanley has a special interest in the outcome of
these proceedings. It is undisputed that he is the father of three
children, that he lived with the two children whose custody is
challenged all their lives, and that he has supported them.
[
Footnote 5]
Illinois says in its brief, at 21-23.
"[T]he only relevant consideration in determining the propriety
of governmental intervention in the raising of children is whether
the best interests of the child are served by such
intervention."
"In effect, Illinois has imposed a statutory presumption that
the best interests of a particular group of children necessitates
some governmental supervision in certain clearly defined
situations. The group of children who are illegitimate are
distinguishable from legitimate children not so much by their
status at birth as by the factual differences in their upbringing.
While a legitimate child usually is raised by both parents with the
attendant familial relationships and a firm concept of home and
identity, the illegitimate child normally knows only one parent --
the mother. . . ."
". . . The petitioner has premised his argument upon particular
factual circumstances -- a lengthy relationship with the mother . .
. a familial relationship with the two children, and a general
assumption that this relationship approximates that in which the
natural parents are married to each other."
". . . Even if this characterization were accurate (the record
is insufficient to support it), it would not affect the validity of
the statutory definition of parent. . . . The petitioner does not
deny that the children are illegitimate. The record reflects their
natural mother's death. Given these two factors, grounds exist for
the State's intervention to ensure adequate care and protection for
these children. This is true whether or not this particular
petitioner assimilates all or none of the normal characteristics
common to the classification of fathers who are not married to the
mothers of their children."
See also Illinois' Brief 23 ("The comparison of married
and putative fathers involves exclusively factual differences. The
most significant of these are the presence or absence of the father
from the home on a day-to-day basis, and the responsibility imposed
upon the relationship"),
id. at 24 (to the same effect),
id. at 31 (quoted below in
n 6),
id. at 24-26 (physiological and other
studies are cited in support of the proposition that men are not
naturally inclined to childrearing), and Tr. of Oral Arg. 31 ("We
submit that, both based on history or [
sic] culture, the
very real differences . . . between the married father and the
unmarried father, in terms of their interests in children and their
legal responsibility for their children, that the statute here
fulfills the compelling governmental objective of protecting
children . . .").
[
Footnote 6]
The State speaks of "the general disinterest of putative fathers
in their illegitimate children" (Brief 8), and opines that, "[i]n
most instances, the natural father is a stranger to his children."
Brief 31.
[
Footnote 7]
See In re Mark T., 8 Mich.App. 122, 154 N.W.2d 27
(1967). There, a panel of the Michigan Court of Appeal, in
unanimously affirming a circuit court's determination that the
father of an illegitimate son was best suited to raise the boy,
said:
"The appellants' presentation in this case proceeds on the
assumption that placing Mark for adoption is inherently preferable
to rearing by his father, that uprooting him from the family which
he knew from birth until he was a year and a half old, secretly
institutionalizing him and later transferring him to strangers, is
so incontrovertibly better that no court has the power even to
consider the matter. Hardly anyone would even suggest such a
proposition if we were talking about a child born in wedlock."
"We are not aware of any sociological data justifying the
assumption that an illegitimate child reared by his natural father
is less likely to receive a proper upbringing than one reared by
his natural father, who was, at one time, married to his mother, or
that the stigma of illegitimacy is so pervasive it requires
adoption by strangers and permanent termination of a subsisting
relationship with the child's father."
Id. at 146, 154 N.W.2d at 39.
[
Footnote 8]
Cf. Reed v. Reed, 404 U. S. 71,
404 U. S. 76
(1971).
"Clearly, the objective of reducing the workload on probate
courts by eliminating one class of contests is not without some
legitimacy. . . . [But to] give a mandatory preference to members
of either sex over members of the other, merely to accomplish the
elimination of hearings on the merits, is to make the very kind of
arbitrary legislative choice forbidden by the Equal Protection
Clause of the Fourteenth Amendment."
Carrington v. Rash, 380 U. S. 89,
380 U. S. 96
(1965), teaches the same lesson.
". . . States may not casually deprive a class of individuals of
the vote because of some remote administrative benefit to the
State.
Oyama v. California, 332 U. S.
633. By forbidding a soldier ever to controvert the
presumption of nonresidence, the Texas Constitution imposes an
invidious discrimination in violation of the Fourteenth
Amendment."
[
Footnote 9]
We note in passing that the incremental cost of offering unwed
fathers an opportunity for individualized hearings on fitness
appears to be minimal. If unwed fathers, in the main, do not care
about the disposition of their children, they will not appear to
demand hearings. If they do care, under the scheme here held
invalid, Illinois would admittedly at some later time have to
afford them a properly focused hearing in a custody or adoption
proceeding.
Extending opportunity for hearing to unwed fathers who desire
and claim competence to care for their children creates no
constitutional or procedural obstacle to foreclosing those unwed
fathers who are not so inclined. The Illinois law governing
procedure in juvenile cases, Ill.Rev.Stat., c. 37, § 701
et
seq., provides for personal service, notice by certified mail,
or for notice by publication when personal or certified mail
service cannot be had or when notice is directed to unknown
respondents under the style of "All whom it may Concern." Unwed
fathers who do not promptly respond cannot complain if their
children are declared wards of the State. Those who do respond
retain the burden of proving their fatherhood.
[
Footnote 10]
Predicating a finding of constitutional invalidity under the
Equal Protection Clause of the Fourteenth Amendment on the
observation that a State has accorded bedrock procedural rights to
some, but not to all similarly situated, is not contradictory to
our holding in
Picard v. Connor, 404 U.
S. 270 (1971). In that case, a due process, rather than
an equal protection, claim was raised in the state courts. The
federal courts were, in our opinion, barred from reversing the
state conviction on grounds of contravention of the Equal
Protection Clause when that clause had not been referred to for
consideration by the state authorities. Here, in contrast, we
dispose of the case on the constitutional premise raised below,
reaching the result by a method of analysis readily available to
the state court.
For the same reason, the strictures of
Cardinale v.
Louisiana, 394 U. S. 437
(1969), and
Hill v. California, 401 U.
S. 797 (1971), have been fully observed.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN
concurs, dissenting.
The only constitutional issue raised and decided in the courts
of Illinois in this case was whether the Illinois statute that
omits unwed fathers from the definition of "parents" violates the
Equal Protection Clause. We granted certiorari to consider whether
the Illinois Supreme Court properly resolved that equal protection
issue when it unanimously upheld the statute against petitioner
Stanley's attack.
No due process issue was raised in the state courts; and no due
process issue was decided by any state court. As MR. JUSTICE
DOUGLAS said for this Court in
State Farm Mutual Automobile
Ins. Co. v. Duel, 324 U. S. 154,
324 U. S. 160
(1945), "Since the [state] Supreme Court did not pass on the
question, we may not do so." We had occasion more recently to deal
with this aspect of the jurisdictional limits placed upon this
Court by 28 U.S.C. § 1257 when we decided
Hill v.
California, 401 U. S. 797
(1971). Having rejected the claim that
Chimel v.
California, 395 U. S. 752
(1969), should be retroactively applied to invalidate petitioner
Hill's conviction on the ground that a search incident to arrest
was overly extensive in scope, the Court noted Hill's additional
contention that his personal diary, which was one of the items
Page 405 U. S. 660
of evidence seized in that search, should have been excluded on
Fifth Amendment grounds as well. MR. JUSTICE WHITE, in his opinion
for the Court, concluded that we lacked jurisdiction to consider
the Fifth Amendment contention:
"Counsel for [the petitioner] conceded at oral argument that the
Fifth Amendment issue was not raised at trial. Nor was the issue
raised, briefed, or argued in the California appellate courts.
[Footnote omitted.] The petition for certiorari likewise ignored
it. In this posture of the case, the question, although briefed and
argued here, is not properly before us."
401 U.S. at
401 U. S.
805.
In the case now before us, it simply does not suffice to say, as
the Court in a footnote does say, that
"we dispose of the case on the constitutional premise raised
below, reaching the result by a method of analysis readily
available to the state court."
Ante at
405 U. S. 658
n. 10. The Court's method of analysis seems to ignore the
strictures of JUSTICES DOUGLAS and WHITE, but the analysis is
clear: the Court holds
sua sponte that the Due Process
Clause requires that Stanley, the unwed biological father, be
accorded a hearing as to his fitness as a parent before his
children are declared wards of the state court; the Court then
reasons that, since Illinois recognizes such rights to due process
in married fathers, it is required by the Equal Protection Clause
to give such protection to unmarried fathers. This "method of
analysis" is, of course, no more or less than the use of the Equal
Protection Clause as a shorthand condensation of the entire
Constitution: a State may not deny any constitutional right to some
of its citizens without violating the Equal Protection Clause
through its failure to deny such rights to all of its citizens. The
limits on this Court's jurisdiction are not properly expandable by
the use of such semantic devices as that.
Page 405 U. S. 661
Not only does the Court today use dubious reasoning in dealing
with limitations upon its jurisdiction, it proceeds as well to
strike down the Illinois statute here involved by "answering"
arguments that are nowhere to be found in the record or in the
State's brief -- or indeed in the oral argument. I have been
unable, for example, to discover where or when the State has
advanced any argument that
"it is unnecessary to hold individualized hearings to determine
whether particular fathers are in fact, unfit parents before they
are separated from their children."
Ante at
405 U. S. 647.
Nor can I discover where the State has "argu[ed] that Stanley and
all other unmarried fathers can reasonably be presumed to be
unqualified to raise their children."
Ante at
405 U. S. 653.
Or where anyone has even remotely suggested the "argu[ment] that
unmarried fathers are so seldom fit that Illinois need not undergo
the administrative inconvenience of inquiry in any case, including
Stanley's."
Ante at
405 U. S. 656.
On the other hand, the arguments actually advanced by the State are
largely ignored by the Court. [
Footnote
2/1]
Page 405 U. S. 662
All of those persons in Illinois who may have followed the
progress of this case will, I expect, experience no little surprise
at the Court's opinion handed down today. Stanley will undoubtedly
be surprised to find that he has prevailed on an issue never
advanced by him. The judges who dealt with this case in the state
courts will be surprised to find their decisions overturned on a
ground they never considered. And the legislators and other
officials of the State of Illinois, as well as those attorneys of
the State who are familiar with the statutory provisions here at
issue, will be surprised to learn for the first time that the
Illinois Juvenile Court Act establishes a presumption that unwed
fathers are unfit. I must confess my own inability to find any such
presumption in the Illinois Act. Furthermore, from the record of
the proceedings in the Juvenile Court of Cook County in this case,
I can only conclude that the judge of that court was unaware of any
such presumption, for he clearly indicated that Stanley's asserted
fatherhood of the children would stand him in good stead, rather
than prejudice him, in any adoption or guardianship proceeding. In
short, far from any intimations
Page 405 U. S. 663
of hostility toward unwed fathers, that court gave Stanley
"merit points" for his acknowledgment of paternity and his past
assumption of at least marginal responsibility for the children.
[
Footnote 2/2]
In regard to the only issue that I consider properly before the
Court, I agree with the State's argument that the Equal Protection
Clause is not violated when Illinois gives full recognition only to
those father-child relationships that arise in the context of
family units bound together by legal obligations arising from
marriage or from adoption proceedings. Quite apart from the
religious or
quasi-religious connotations that marriage
has -- and has historically enjoyed -- for a large proportion of
this Nation's citizens, it is, in law, an essentially contractual
relationship the parties to which have legally enforceable rights
and duties with respect both to each other and to any children born
to them. Stanley and the mother of these children never entered
such a relationship. The record is silent as to whether they ever
privately exchanged such promises as would have bound them in
marriage under the common law.
See Cartwright v. McGown,
121 Ill. 388, 398, 12 N.E. 737, 739 (1887). In
Page 405 U. S. 664
any event, Illinois has not recognized common law marriages
since 1905. Ill.Rev.Stat., c. 89, § 4. Stanley did not seek the
burdens when he could have freely assumed them.
Where there is a valid contract of marriage, the law of Illinois
presumes that the husband is the father of any child born to the
wife during the marriage; as the father, he has legally enforceable
rights and duties with respect to that child. When a child is born
to an unmarried woman, Illinois recognizes the readily identifiable
mother, but makes no presumption as to the identity of the
biological father. It does, however, provide two ways, one
voluntary and one involuntary, in which that father may be
identified. First, he may marry the mother and acknowledge the
child as his own; this has the legal effect of legitimating the
child and gaining for the father full recognition as a parent.
Ill.Rev.Stat., c. 3, § 12-8. Second, a man may be found to be the
biological father of the child pursuant to a paternity suit
initiated by the mother; in this case, the child remains
illegitimate, but the adjudicated father is made liable for the
support of the child until the latter attains age 18 or is legally
adopted by another. Ill.Rev.Stat., c. 106 3/4, § 52.
Stanley argued before the Supreme Court of Illinois that the
definition of "parents," set out in Ill.Rev.Stat., c. 37, § 701-14,
as including
"the father and mother of a legitimate child, or the survivor of
them, or the natural mother of an illegitimate child, [or] . . .
any adoptive parent, [
Footnote
2/3]"
violates the Equal Protection Clause in that it
Page 405 U. S. 665
treats unwed mothers and unwed fathers differently. Stanley then
enlarged upon his equal protection argument when he brought the
case here; he argued before this Court that Illinois is not
permitted by the Equal Protection Clause to distinguish between
unwed fathers and any of the other biological parents included in
the statutory definition of legal "parents."
The Illinois Supreme Court correctly held that the State may
constitutionally distinguish between unwed fathers and unwed
mothers. Here, Illinois' different treatment of the two is part of
that State's statutory scheme for protecting the welfare of
illegitimate children. In almost all cases, the unwed mother is
readily identifiable, generally from hospital records, and
alternatively by physicians or others attending the child's birth.
Unwed fathers, as a class, are not traditionally quite so easy to
identify and locate. Many of them either deny all responsibility or
exhibit no interest in the child or its welfare; and, of course,
many unwed fathers are simply not aware of their parenthood.
Furthermore, I believe that a State is fully justified in
concluding, on the basis of common human experience, that the
biological role of the mother in carrying and nursing an infant
creates stronger bonds between her and the child than the bonds
resulting from the male's often casual encounter. This view is
reinforced by the observable fact that most unwed mothers exhibit a
concern for their offspring either permanently or at least
until
Page 405 U. S. 666
they are safely placed for adoption, while unwed fathers rarely
burden either the mother or the child with their attentions or
loyalties. Centuries of human experience buttress this view of the
realities of human conditions, and suggest that unwed mothers of
illegitimate children are generally more dependable protectors of
their children than are unwed fathers. While these, like most
generalizations, are not without exceptions, they nevertheless
provide a sufficient basis to sustain a statutory classification
whose objective is not to penalize unwed parents, but to further
the welfare of illegitimate children in fulfillment of the State's
obligations as
parens patriae. [
Footnote 2/4]
Stanley depicts himself as a somewhat unusual unwed father,
namely, as one who has always acknowledged and never doubted his
fatherhood of these children. He alleges that he loved, cared for,
and supported these children from the time of their birth until the
death of their mother. He contends that he consequently must be
treated the same as a married father of legitimate children. Even
assuming the truth of Stanley's allegations, I am unable to
construe the Equal Protection Clause as requiring Illinois to
tailor its statutory definition of "parents" so meticulously as to
include such unusual unwed fathers while, at the same time,
excluding those unwed, and generally unidentified, biological
fathers who in no way share Stanley's professed desires.
Page 405 U. S. 667
Indeed, the nature of Stanley's own desires is less than
absolutely clear from the record in this case. Shortly after the
death of the mother, Stanley turned these two children over to the
care of a Mr. and Mrs. Ness; he took no action to gain recognition
of himself as a father, through adoption, or as a legal custodian,
through a guardianship proceeding. Eventually it came to the
attention of the State that there was no living adult who had any
legally enforceable obligation for the care and support of the
children; it was only then that the dependency proceeding here
under review took place and that Stanley made himself known to the
juvenile court in connection with these two children. [
Footnote 2/5] Even then, however, Stanley
did not ask to be charged with the legal responsibility for the
children. He asked only that such legal responsibility be given to
no one else. He seemed, in particular, to be concerned with the
loss of the welfare payments he would suffer as a result of the
designation of others as guardians of the children.
Not only, then, do I see no ground for holding that Illinois'
statutory definition of "parents" on its face violates the Equal
Protection Clause; I see no ground for holding that any
constitutional right of Stanley has been denied in the application
of that statutory definition in the case at bar.
As Mr. Justice Frankfurter once observed, "Invalidating
legislation is serious business. . . ."
Morey v. Doud,
354 U. S. 457,
354 U. S. 474
(1957) (dissenting opinion). The
Page 405 U. S. 668
Court today pursues that serious business by expanding its
legitimate jurisdiction beyond what I read in 28 U.S.C. § 1257 as
the permissible limits contemplated by Congress. In doing so, it
invalidates a provision of critical importance to Illinois'
carefully drawn statutory system governing family relationships and
the welfare of the minor children of the State. And, in so
invalidating that provision, it ascribes to that statutory system a
presumption that is simply not there, and embarks on a novel
concept of the natural law for unwed fathers that could well have
strange boundaries as yet undiscernible.
[
Footnote 2/1]
In reaching out to find a due process issue in this case, the
Court seems to have misapprehended the entire thrust of the State's
argument. When explaining at oral argument why Illinois does not
recognize the unwed father, counsel for the State presented two
basic justifications for the statutory definition of "parents" here
at issue.
See Tr. of Oral Arg. 226. First, counsel noted
that in the case of a married couple to whom a legitimate child is
born, the two biological parents have already "signified their
willingness to work together" in caring for the child by entering
into the marriage contract; it is manifestly reasonable, therefore,
that both of them be recognized as legal parents with rights and
responsibilities in connection with the child. There has been no
legally cognizable signification of such willingness on the part of
unwed parents, however, and "the male and female . . . may or may
not be willing to work together towards the common end of
childrearing." To provide legal recognition to both of them as
"parents" would often be "to create two conflicting parties
competing for legal control of the child."
The second basic justification urged upon us by counsel for the
State was that, in order to provide for the child's welfare,
"it is necessary to impose upon at least one of the parties
legal responsibility for the welfare of [the child], and, since
necessarily the female is present at the birth of the child and
identifiable as the mother,"
the State has selected the unwed mother, rather than the unwed
father, as the biological parent with that legal
responsibility.
It was suggested to counsel during an ensuing colloquy with the
bench that identification seemed to present no insuperable problem
in Stanley's case, and that, although Stanley had expressed an
interest in participating in the rearing of the children, "Illinois
won't let him." Counsel replied that, on the contrary,
"Illinois encourages him to do so if he will accept the legal
responsibility for those children by a formal proceeding comparable
to the marriage ceremony, in which he is evidencing through a
judicial proceeding his desire to accept legal responsibility for
the children."
Stanley, however, "did not ask for custody. He did not ask for
legal responsibility. He only objected to someone [else's] having
legal control over the children." Tr. of Oral Arg. 38, 39 40.
[
Footnote 2/2]
The position that Stanley took at the dependency proceeding was
not without ambiguity. Shortly after the mother's death, he placed
the children in the care of Mr. and Mrs. Ness, who took the
children into their home. The record is silent as to whether the
Ness household was an approved foster home. Through Stanley's act,
then, the Nesses were already the actual custodians of the
children. At the dependency proceeding, he resisted only the
court's designation of the Nesses as the legal custodians; he did
not challenge their suitability for that role, nor did he seek for
himself either that role or any other role that would have imposed
legal responsibility upon him. Had he prevailed, of course, the
status quo would have obtained: the Nesses would have
continued to play the role of actual custodians until either they
or Stanley acted to alter the informal arrangement, and there would
still have been no living adult with any legally enforceable
obligation for the care and support of the infant children.
[
Footnote 2/3]
The Court seems at times to ignore this statutory definition of
"parents," even though it is precisely that definition itself whose
constitutionality has been brought into issue by Stanley. In
preparation for finding a purported similarity between this case
and
Bell v. Burson, 402 U. S. 535
(1971), the Court quotes the legislatively declared aims of the
Juvenile Court Act to
"strengthen the minor's family ties whenever possible, removing
him from the custody of his
parents only when his welfare
or safety or the protection of the public cannot be adequately
safeguarded without removal."
(Emphasis added.) The Court then goes on to find a
"self-contradiction" between that stated aim and the Act's
nonrecognition of unwed fathers.
Ante at
405 U. S. 653.
There is, of course, no such contradiction. The word "parent" in
the statement of legislative purpose obviously has the meaning
given to it by the definitional provision of the Act.
[
Footnote 2/4]
When the marriage between the parents of a legitimate child is
dissolved by divorce or separation, the State, of course, normally
awards custody of the child to one parent or the other. This is
considered necessary for the child's welfare, since the parents are
no longer legally bound together. The unmarried parents of an
illegitimate child are likewise not legally bound together. Thus,
even if Illinois did recognize the parenthood of both the mother
and father of an illegitimate child, it would, for consistency with
its practice in divorce proceedings, be called upon to award
custody to one or the other of them, at least once it had by some
means ascertained the identity of the father.
[
Footnote 2/5]
As the majority notes,
ante at
405 U. S. 646,
Joan Stanley gave birth to three children during the 18 years Peter
Stanley was living "intermittently" with her. At oral argument, we
were told by Stanley's counsel that the oldest of these three
children had previously been declared a ward of the court pursuant
to a neglect proceeding that was "proven against" Stanley at a
time, apparently, when the juvenile court officials were under the
erroneous impression that Peter and Joan Stanley had been married.
Tr. of Oral Arg.19.