Amendment 14 — Out Of Wedlock Births

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

After wrestling in a number of cases with the question of the permissibility of governmental classifications disadvantaging persons born out of wedlock and the standard for determining which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn1amd14 " The first cases set the stage for the lack of consistency. Compare Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968), invalidating laws that precluded wrongful death actions in cases involving the child or the mother when the child was born out of wedlock, in which scrutiny was strict, with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate succession, in which scrutiny was rational basis, and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), involving a workers’ compensation statute distinguishing between unacknowledged children born out of wedlock and those born to wedded parents, in which scrutiny was intermediate. ") Although the Court has determined that a person’s status as having been born out of wedlock “is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis of statutory differentiations,” the analogy is “not sufficient to require ‘our most exacting scrutiny.’” The scrutiny to which it is entitled is intermediate, “not a toothless [scrutiny],” but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or “fits,” the aim.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn2amd14 " Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S. 762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974). Mathews itself illustrates the uncertainty of statement, suggesting at one point that the Labine standard may be appropriate, 401 U.S. at 506, and at another that the standard appropriate to sex classifications is to be used, id. at 510, while observing a few pages earlier that classifications based on whether a person was born out of wedlock are entitled to less exacting scrutiny than either race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess the relationship between its standard and the sex classification standard. See Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380 (1979) (cases involving classifications based both on the sex of a parent and whether a child was born out of wedlock). ") The common rationale of all the cases involving state action that distinguishes among people based on whether they were born out of wedlock is not clear, is in many respects not wholly consistent,[3](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn3amd14 " The major inconsistency arises from three 5-4 decisions. Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762 (1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978). Justice Lewis Powell was the swing vote for different disposition of the latter two cases. Thus, while four Justices argued for stricter scrutiny and usually invalidation of such classifications, Lalli v. Lalli, 439 U.S. at 277 (Brennan, White, Marshall, and Stevens, JJ., dissenting), and four favor relaxed scrutiny and usually sustaining the classifications, Trimble v. Gordon, 430 U.S. at 776, 777 (Burger, C.J., and Stewart, Blackmun, and Rehnquist, JJ., dissenting), Justice Lewis Powell applied his own intermediate scrutiny and selectively voided and sustained. See Lalli v. Lalli (Powell, J., plurality opinion). ") but the theme that seems to be imposed on them by the more recent cases is that so long as the challenged statute does not so structure its conferral of rights, benefits, or detriments so that some children born out of wedlock who would otherwise qualify in terms of the statute’s legitimate purposes are disabled from participation, the imposition of greater burdens upon children born out of wedlock or some classes of children born out of wedlock (for example, those not acknowledged by their fathers) than upon children born to married parents is permissible.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn4amd14 " A classification that absolutely distinguishes between children born to married parents and children born to unmarried parents is not alone subject to such review; one that distinguishes among classes of children born out of wedlock (e.g., those children born out wedlock and whose parents did not intermarry or who were not acknowledged by their fathers) is also subject to it, Trimble v. Gordon, 430 U.S. 762, 774 (1977), as indeed are classifications based on other factors. E.g., Nyquist v. Mauclet, 432 U.S. 1, 9 (1977) (alienage). ")

The issue of intestate succession rights for children born out of wedlock has divided the Court over the entire period. At first adverting to the broad power of the states over descent of real property, the Court employed relaxed scrutiny to sustain a law denying children born out of wedlock the right to share equally with children born to married parents in the estate of their common father, who had acknowledged the children born out of wedlock (but not “legitimated” them) and who had died intestate.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn5amd14 " Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of state inheritance laws in expanding review of classifications based on whether a person was born out of wedlock. ") Labine was strongly disapproved, however, and virtually overruled in Trimble v. Gordon,[6](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn6amd14 " 430 U.S. 762 (1977). Chief Justice Warren Burger and Justices Potter Stewart, Harry Blackmun, and William Rehnquist dissented, finding the statute “constitutionally indistinguishable” from the one sustained in Labine. Id. at 776. Justice William Rehnquist also dissented separately. Id. at 777. ") which found an equal protection violation in a statute allowing children born out of wedlock to inherit by intestate succession from their mothers but from their fathers only if the father had “acknowledged” the child and the child had been “legitimated” by the marriage of the parents. The father in Trimble had not acknowledged his child, and had not married the mother, but a court had determined that he was in fact the father and had ordered that he pay child support. Carefully assessing the purposes asserted to be the basis of the statutory scheme, the Court found all but one to be impermissible or inapplicable and that one not served closely enough by the restriction. First, it was impermissible to attempt to influence the conduct of adults not to engage in illicit sexual activities by visiting the consequences upon the offspring.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn7amd14 " 430 U.S. at 768–70. Although this purpose had been alluded to in Labine v. Vincent, 401 U.S. 532, 538 (1971), it was rejected as a justification in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 173, 175 (1972). Visiting consequences upon the parent appears to be permissible. Parham v. Hughes, 441 U.S. 347, 352–53 (1979). ") Second, the assertion that the statute mirrored the assumed intent of decedents, in that, knowing of the statute’s operation, they wold have acted to counteract it through a will or otherwise, was rejected as unproved and unlikely.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn8amd14 " Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure of the state court to rely on this purpose and its own examination of the statute. ") Third, the argument that the law presented no insurmountable barrier to children born out of wedlock inheriting since a decedent could have left a will, married the mother, or taken steps to “legitimate” the child, was rejected as inapposite.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn9amd14 " 430 U.S. at 773–74. This justification had been prominent in Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been deemed critical in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court thought this approach “somewhat of an analytical anomaly” and disapproved it. However, the degree to which one could conform to the statute’s requirements and the reasonableness of those requirements in relation to a legitimate purpose are prominent in Justice Lewis Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 259, 266–74 (1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See also Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 n.8 (1982) (sex); c.f. id. at 736 (Powell, J., dissenting). ") Fourth, the statute did address a substantial problem, a permissible state interest, presented by the difficulties of proving paternity and avoiding spurious claims. However, the court thought the means adopted, total exclusion, did not approach the “fit” necessary between means and ends to survive the scrutiny appropriate to this classification. The state court was criticized for failing “to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of children born out of wedlock to intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.” [10](https://www.law.cornell.edu/constitution-conan/amendment-14/out-of-wedlock-births#fn10amd14 " Trimble v. Gordon, 430 U.S. 762, 770–73 (1977). The result is in effect a balancing one, the means-ends relationship must be a substantial one in terms of the advantages of the classification as compared to the harms of the classification means. Justice William Rehnquist’s dissent is especially critical of this approach. Id. at 777, 781–86</s