LEVY v. LOUISIANA 391 U.S. 68 (1968) GLONA v. AMERICAN GUARANTEE & LIABILITY INSURANCE CO. 391 U.S. 73 (1968)

In these decisions the Supreme Court began to subject legislative classifications based on illegitimacy of parentage to heightened judicial scrutiny. Both cases arose out of Louisiana's statute allowing an action for damages on behalf of the survivors of a decedent against a person who wrongfully caused the decedent's death. Levy invalidated, 6–3, a provision denying an illegitimate child the right to recover damages for the death of a parent, and Glona invalidated, 6–3, a corresponding provision disallowing a parent's recovery of damages for the death of an illegitimate child.

The two opinions for the Court, by Justice william o. douglas, were very brief. Douglas purported to accept the rational basis standard of review. The rights asserted, however, involved "the intimate, familial relationship between a child and his own mother." And illegitimacy bore no relation to the nature of the harm inflicted in either case. The accident of a child's illegitimate birth did not justify denying his rights, and if the state sought to punish the mother of an illegitimate child for her "sin," denying her wrongful death damages was an irrational means for doing so.

It is plain that in these cases the Court was employing a standard of review considerably more demanding than its "rational basis" language suggested. Justice john marshall harlan, for the dissenters, took note of this heightened scrutiny, and opposed it. Any definition of the plaintiff class in a wrongful death statute must be artificial; a biological definition would attune the law neither to degrees of love nor to degrees of economic dependence between decedents and survivors. It was not irrational for Louisiana to "simplify" its wrongful death proceedings by using formal marriage as the key to defining the plaintiff class.

Left unspoken by both Douglas and Harlan was the time-dishonored use of the law of illegitimacy in many southern states as a covert form of racial discrimination in controlling the transmission of wealth from white fathers to their racially diverse offspring.

Kenneth L. Karst
(1986)