William J. Brennan, Jr.

“ When a father has formally acknowledged his child or gone through any state authorized formality for declaring paternity, or when there has been a court judgment of paternity, there is no possible difficulty of proof, and no opportunity for fraud or error. ”

“ It is also important not to obscure the fact that the formality of marriage primarily signifies a relationship between husband and wife, not between parent and child. Analysis of the rationality of any state effort to impose obligations based upon the fact of marriage must, therefore, distinguish between those obligations that run between parties to the marriage and those that run to others. By Brother Harlan, unlike his colleagues in the majority, concedes that the Equal Protection Clause requires a justification for Louisiana's discrimination against illegitimates, and he attempts one ”

“ Even as to this class, however, Louisiana law places the burden on the father of a publicly acknowledged illegitimate child to take affirmative action to inherit that child, while virtually disabling the same father from disinheriting a legitimate child, or, at least, placing a burden of affirmative action on the father in order to disinherit the legitimate child. ”

“ Indeed, the state court below justified the discrimination on the ground that 'the denial of inheritance rights to illegitimates might reasonably be viewed as encouraging marriage and legitimation of children.' 229 So.2d, at 452. Such denial could encourage marriage only if fathers generally desire to leave their property to their illegitimate children; otherwise, disinheritance would not operate as a sanction to encourage marriage. ”

“ Moreover, Louisiana is the only State in the country that denies illegitimate children rights of inheritance from the mother equal to those of legitimate children, [26] and one of only four States that have expressly provided by statute that the illegitimate child may not inherit from his father. [27] The legislatures of 20 States by statute allow acknowledged illegitimate children to inherit equally from their fathers. [28] Three States grant equal rights of inheritance from the father regardless of acknowledgment. ”

“ Intestate succession laws might seek to carry out a general intent of parents not to provide for publicly acknowledged illegitimate children. However, as the summary of Louisiana law I have made shows, one of the primary hallmarks of Louisiana's civil code is its detailed, extensive regulation of the family relationship. ”

“ Moreover, logic and common experience also suggest that a father who has publicly acknowledged his illegitimate child will not generally intend to disinherit his child. A man who publicly announces that he has fathered a child out of wedlock has publicly claimed that child for his own. ”

“ Louisiana punishes illegitimate children for the misdeeds of their parents. The judges of the Third Circuit Court of Appeal of Louisiana, whose judgment the Court here reviews, upheld the present discrimination ' (h) owever unfair it may be to punish innocent children for the fault of their parents * * *.' 229 So.2d, at 452. It is certainly unusual in this country for a person to be legally disadvantaged on the basis of factors over which he never had any control. ”

“ Under Louisiana law a legitimate child would have had an absolute right to inherit Mr. Vincent's estate; Mr. Vincent could not have totally disinherited such a child. This is a consequence of Louisiana's 'forced heirship' law, in other words a consequence of a state decision, however contrary that might be to Mr. Vincent's own desires. Similarly in the present case, Mr. Vincent's illegitimate daughter, though duly acknowledged, is denied his intestate estate, not because he wished that result but because the State places her behind Mr. ”

“ Fla.Stat. § 731.29 (1965) ; Ga.Code Ann. § 74-103 (1964) ; Idaho Code § 14-104 (1947) ; Ind.Ann.Stat. § 6-207 (1953) (adjudication of paternity required) ; Iowa Code § 633.222 (1971) ; Kan.Stat.Ann. § 59-501 (1964) ”