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Gomez v. Perez, 409 U.S. 535 (1973). Cases Citing This Book View Copy Cite
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The equal protection clause guarantees illegitimate children the right to maintain civil actions for support against their biological parents.

A mother filed a petition seeking child support from the biological father of her minor child, but the trial court denied the claim because the child was illegitimate. The question presented is whether a state may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers while denying that same right to illegitimate children. The Court holds that a state may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded to children generally. Once a state provides a judicially enforceable right to support from natural fathers, there is no constitutionally sufficient justification for denying that essential right to a child simply because the father has not married the mother.

1,495 citation events (163 in the last 25 years) across 120 distinct courts.
Strongest positive: Stennett v. Miller, 34 Cal. App. 5th 284 (Cal. Ct. App. 2019) · Strongest negative: Linda RS v. Richard D., 410 U.S. 614 (1973)
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At page 538 Discriminating against illegitimate children in support rights69 citing cases“a state may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.”14 citing courts quote it · also cited as 35 L. Ed. 2d at 60; 93 S. Ct. at 875 · 68 listed here
  • Stennett v. Miller, 34 Cal. App. 5th 284 (Cal. Ct. App. 2019).published
    (Texas law that allowed only marital children to obtain financial support from fathers was “invidious” discrimination)
  • Chatterjee v. King, 2012-NMSC-019, 280 P.3d 283.published 2 cites
    Gomez v. Perez, 409 U.S. 535, 538 (1973) (internal quotation marks and citation omitted).
  • In Re Parentage of MJ, 787 N.E.2d 144 (Ill. 2003).published 2 cites
    See Miller, 146 Ill.2d at 405 , 166 Ill.Dec. 922 , 586 N.E.2d 1251 ; Gomez v. Perez, 409 U.S. 535, 538 , 93 S.Ct. 872, 875 , 35 L.Ed.2d 56, 60 (1973); Mills v. Habluetzel, 456 U.S. 91, 92 , 102 S.Ct. 1549, 1551 , 71 L.Ed.2d 770, 773 (1982).
  • R.N. v. J.M., 61 S.W.3d 149 (Ark. 2001).published 2 cites
    Code Ann. § 9-10-108 in a case involving an illegitimate child actually raises the rights of an illegitimate child to the same level as those who are presumed legitimate, thus satisfying the Equal Protection Clause by actually conferring u…
  • Hutchins, Tiana v. D.C., 188 F.3d 531 (D.C. Cir. 1999).published
    This holding is hardly surprising because obscenity is not protected speech, see id. at 635 , and obscenity standards focus in part on audience composition and thus may account for the differences between adult and juvenile audiences. 11 S…
  • Clara C. v. William L., 181 Misc. 2d 241 (N.Y.C. Fam. Ct. 1999).published
    Although the Clark Court did note that the “intermediate level of scrutiny’ quoted above had “generally * * * been applied to discriminatory classifications based on sex or illegitimacy’, it went on to comment that the same standard was no…
  • Michael Scott Evans v. Karen Marie Bisson Steeman - Dissenting, No. 01A01-9511-JV-00508 (Tenn. Ct. App. Oct. 2, 1996).published
    (right to child support from a biological parent)
  • Matter of Jacob, 660 N.E.2d 397 (N.Y. 1995).published 2 cites
    (Equal Protection Clause prevents unequal treatment of children whose parents are unmarried)
  • State Dep't of Human Servs. Ex Rel. K.A.G. v. T.D.G., 861 P.2d 990 (Okla. 1993).published 2 cites
    Mills v. Habluetzel, 456 U.S. 91 -92, 102 S.Ct. 1549, 1551 , 71 L.Ed.2d 770, 773 (1982); Gomez v. Perez, 409 U.S. 535, 538 , 93 S.Ct. 872, 875 , 35 L.Ed.2d 56, 60 (1973); Department of Public Aid v. Miller, 146 Ill.2d 399 , 166 III.Dec. 92…
  • Hur v. Virginia Dep't of Soc. Servs. Ex Rel. Klopp, 409 S.E.2d 454 (Va. Ct. App. 1991).published
    “a State may not invidiously discriminate against ille *59 gitimate children by denying them substantial benefits accorded children generally”
Show 58 more citing cases
  • Williams v. Hook, 804 P.2d 1131 (Okla. 1991).published 2 cites
    (Recognizing equal protection right of illegitimate children to maintain civil action for non-support against parent.)
  • Clark v. Jeter, 486 U.S. 456 (1988).published
    “lurking problems with respect to proof of paternity”
  • DuPhily v. DuPhily, 52 B.R. 971 (D. Del. 1985).published
    Despite judicial recognition of the invidious nature of any classification based on immutable human attributes, Parham v. Hughes, 441 U.S. at 351 , 99 S.Ct. at 1745 , accord Gomez v. Perez, 409 U.S. at 538, 93 S.Ct. at 875 , classification…
  • Darces v. Woods, 679 P.2d 458 (Cal. 1984).published 2 cites
    “simply because its natural father has not married its mother”
  • State Ex. Rel. Rake v. Ohden, 346 N.W.2d 826 (Iowa 1984).published 2 cites
    In striking down the statute, the court explained: Our decision in [Gomez v. Perez, 409 U.S. 535, 538 , 93 S.Ct. 872, 875 , 35 L.Ed.2d 56, 60 (1973) ] held that “a State may not invidiously discriminate against illegitimate children by den…
  • In Re Paternity of RWL, 341 N.W.2d 682 (Wis. 1984).published
    As a matter of federal constitutional law children born out of wedlock have a "judicially enforceable right ... to needed support from their natural fathers when the state has posited this right for children born in wedlock." Gomez v. Pere…
  • W.R.W. v. Bartholomew, 341 N.W.2d 682 (Wis. 1984).published
    As a matter of federal constitutional law children born out of wedlock have a “judicially enforceable right ... to needed support from their natural fathers when the state has posited this right for children born in wedlock.” Gomez v. Pere…
  • Shifter v. Wolf, 327 N.W.2d 429 (Mich. Ct. App. 1982).published
    In examining questions of alleged discrimination against illegitimate children, the United States Supreme Court, in Gomez v Perez, 409 US 535, 538 ; 93 S Ct 872, 875 ; 35 L Ed 2d 56, 60 (1973), stated that a state may not "invidiously disc…
  • Fykes v. Clark, 635 S.W.2d 316 (Ky. 1982).published
    “are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination”
  • Commonwealth v. Gruttner, 432 N.E.2d 518 (Mass. 1982).published
    “be made into an impenetrable barrier that works to shield otherwise invidious discrimination”
  • King v. Commonwealth, 269 S.E.2d 793 (Va. 1980).published
    “the lurking problems with respect to proof of paternity”
  • Cnty. of Lenoir Ex Rel. Cogdell v. Johnson, 264 S.E.2d 816 (N.C. Ct. App. 1980).published
    In Gomez v. Perez, 409 U.S. 535, 538 , 35 L.Ed. 2d 56, 60 , 93 S.Ct. 872, 875 (1973), the United States Supreme Court stated: *186 . . . once a State posits a judicially enforceable right on behalf of children to needed support from their…
  • W.Y.N.N. v. W.Y.N.N., 587 S.W.2d 790 (Tex. Civ. App.—Corpus Christi 1979).published
    Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez, supra at 538 , 93 S.Ct. at 875 (citations omitted).
  • J.M.S. Ex Rel. Webb v. Benson, 283 N.W.2d 465 (Wis. Ct. App. 1979).published
    Gomez v. Perez, 409 U.S. 535, 538 (1973), recognized the “lurking problems with respect to proof of paternity” in an action brought during the lifetime of the putative father but held that those problems cannot “be made into an impenetrabl…
  • State in Interest of Poche v. Poche, 368 So. 2d 175 (La. Ct. App. 1979).published
    See also Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 , 92 S.Ct. 1400 , 31 L.Ed.2d 768 (1972); and Gomez v. Perez, 409 U.S. 535 at 538 , 93 S.Ct. 872 at 875 , 35 L.Ed.2d 56 at 60 (1973) which stated, "A State may not invidiously disc…
  • Parham v. Hughes, 441 U.S. 347 (1979).published 6 cites
    (child support)
  • Thompson v. Thompson, 390 A.2d 1139 (Md. Ct. Spec. App. 1978).published
    Indeed, the Supreme Court recognized in Weber, supra, at 174 , that “arbitrary lines” may be drawn by the states to “facilitate potentially difficult problems of proof.” Moreover, in Gomez v. Perez, 409 U. S. 535, 538 (1973), the Court “re…
  • Inheritance Tax on Illegitimates, 8 Pa. D. & C.3d 167 (1978).published
    Our previous decisions demonstrate a sensitivity to ‘the lurking problems with respect to proof of paternity,’ Gomez v. Perez, 409 U.S. 535, 538 (1973), and the need for the States to draw ‘arbitrary lines ... to facilitate potentially dif…
  • Allen v. Harvey, 568 S.W.2d 829 (Tenn. 1978).published
    (Emphasis added.) Quoting from its decision in Gomez v. Perez, 409 U.S. 535, 538 (1973), the Court noted that problems of proving paternity “are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier tha…
  • Browning Est., 5 Pa. D. & C.3d 772 (1977).published
    “Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination”
  • Trimble v. Gordon, 430 U.S. 762 (1977).published 2 cites
    “the lurking problems with respect to proof of paternity”
  • Fiallo Ex Rel. Rodriguez v. Bell, 430 U.S. 787 (1977).published 4 cites
    “simply because its natural father has not married its mother”
  • Hanson v. Markham, 356 N.E.2d 702 (Mass. 1976).published
    (right to support by father)
  • Mathews v. Lucas, 427 U.S. 495 (1976).published 4 cites
    We therefore adhere to our earlier view, see Labine v. Vincent, 401 U. S. 532 (1971), that the Act's discrimination between individuals on the basis of their legitimacy does not "command extraordinary protection from the majoritarian polit…
  • Schwalbe v. Jones, 546 P.2d 1033 (Cal. 1976).published 2 cites
    Although the [equal protection clause does] not require absolute precision in the designation of classifications, [it does] not tolerate classifications which are so grossly overinclusive as to defy notions of fairness or reasonableness...…
  • Watts v. Watts, 337 A.2d 350 (N.H. 1975).published
    Both legitimate and illegitimate children have the right to enforce the support obligation.Gomez v. Perez, 409 U.S. 535, 538 (1973); Uniform Parentage Act § 6 (a) (1) (1973); 9 Uniform Laws Annot.
  • Doe v. Norton, 365 F. Supp. 65 (D. Conn. 1973).published 2 cites
    In Gomez v. Perez, 409 U.S. 535 , 93 S.Ct. 872 , 35 L.Ed.2d 56, 60 (1973), the Court declared: "We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers th…
  • Jennifer Marie Treto v. Sandra Lilibeth Ortega Treto, 622 S.W.3d 397 (Tex. App.—Corpus Christi–Edinburg 2020).published
    See Gomez v. Perez, 409 U.S. 535, 538 (1973); Alvarado v. Gonzalez, 552 S.W.2d 539 (Tex. App.—Corpus Christi–Edinburg 1977, no writ) (“The right of an illegitimate child to obtain support from his or her natural father has been recognized…
  • Sharon Ann Gribble, Individually & in Her Capacity as Guardian of the Person & Est. of Michael Ray Gribble v. Brent Allen Layton, 389 S.W.3d 882 (Tex. App.—Houston [14th Dist.] 2012).published 2 cites
    See 409 U.S. at 538 , 93 S.Ct. 872 .
  • Michael H. v. Gerald D., 491 U.S. 110 (1989).published
  • In Re Paternity of BWS, 371 N.W.2d 379 (Wis. Ct. App. 1985).published
  • Weidner v. W.G.N., 371 N.W.2d 379 (Wis. Ct. App. 1985).published
  • Saffold ex rel. Saffold v. Chater, 922 F. Supp. 225 (E.D. Mo. 1996).published
  • Mills v. Habluetzel, 456 U.S. 91 (1982).published
  • Pickett v. Brown, 462 U.S. 1 (1983).published
  • Harvey v. State, 664 N.W.2d 767 (Mich. 2003).published
  • State Ex Rel. Adult & Fam. Servs. Div. v. Bradley, 666 P.2d 249 (Or. 1983).published
  • Jones v. Robinson, 329 S.E.2d 794 (Va. 1985).published
  • Crego v. Coleman, 591 N.W.2d 277 (Mich. Ct. App. 1999).published
  • Texas Dep't of Human Resources v. Hernandez, 595 S.W.2d 189 (Tex. Civ. App.—Corpus Christi 1980).published
  • Boles v. Califano, 464 F. Supp. 408 (W.D. Tex. 1979).published
  • Jimenez Ex Rel. Little v. Garza, 787 S.W.2d 601 (Tex. App.—El Paso 1990).published
  • Gerhardt v. Est. of Moore, 441 N.W.2d 734 (Wis. 1989).published
  • Ex Parte Jones, 592 So. 2d 608 (Ala. 1991).published
  • Crego v. Coleman, 615 N.W.2d 218 (Mich. 2000).published
  • Rose v. Stokely, 673 N.W.2d 413 (Mich. Ct. App. 2003).published
  • Walsh v. Jodoin, 925 A.2d 1086 (Conn. 2007).published
  • Wawrykow v. Simonich, 652 A.2d 843 (Pa. Super. Ct. 1994).published
  • State Dept. of Health, Etc. v. West, 378 So. 2d 1220 (Fla. 1979).published
  • Astemborski v. Susmarski, 466 A.2d 1018 (Pa. 1983).published
  • Cessna v. Montgomery, 344 N.E.2d 447 (Ill. 1976).published
  • In Re Est. of Greenwood, 587 A.2d 749 (Pa. Super. Ct. 1991).published
  • Dep't of Pub. Aid Ex Rel. Cox v. Miller, 586 N.E.2d 1251 (Ill. 1992).published
  • Astemborski v. Susmarski, 451 A.2d 1012 (Pa. 1982).published
  • Payne v. Prince George's Cnty. Dep't of Soc. Servs., 507 A.2d 641 (Md. Ct. Spec. App. 1986).published
  • McCarty v. Kimmel, 577 N.E.2d 665 (Ohio Ct. App. 2d Dist. 1989).published
  • Carolyn C. v. Frank G., 106 Misc. 2d 510 (N.Y.C. Fam. Ct. 1980).published
  • Trembow v. Schonfeld, 901 A.2d 825 (Md. 2006).published
At page 535 child support2 citing cases1 citing court put it this way
  • In the Interest of Sicko, 900 S.W.2d 863 (Tex. App.—Corpus Christi 1995).published
    (child support)
  • Stone v. Gulf Am. Fire & Cas. Co., 554 So. 2d 346 (Ala. 1989).published
    In Gomez we considered `whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children. 409 U.S.,…
At page 536 “a continuing and primary duty to support his legitimate children.”2 citing casesthe opinion's own words at *536, quoted by 1 later opinions
  • In Re the Marriage of Ward, 137 S.W.3d 910 (Tex. App.—Texarkana 2004).published
    Gomez v. Perez , 409 U.S. 535, 536 (1973).
  • Doe v. Roe, 504 N.E.2d 659 (Mass. App. Ct. 1987).published
    See, e.g., Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 174-176 (1972, workers’ compensation benefits); Gomez v. Perez, 409 U.S. 535, 536-538 (1973, discrimination in right to support by his father of a child born out of wedlock); Trimb…
35 L. Ed. 2d at 58 cited at this page1 citing case
  • Bailey v. Bailey, 987 S.W.2d 206 (Tex. App.—Amarillo 1999).published
    Gomez v. Perez, 409 U.S. 535, 536 , 93 S.Ct. 872, 874 , 35 L.Ed.2d 56, 58-59 (1973).
Other citing cases4 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Gomez
v.
Perez
71-575.
Supreme Court of the United States.
Jan 17, 1973.
Published opinion
409 U.S. 535
1973 U.S. LEXIS 116
Stanley Dalton Wright argued the cause for appellant. With him on the brief were Melvin N. Eichelbaum and Harry B. Adams III., Joseph Jaworski, by invitation of the Court, 408 TJ. S. 942, argued the cause and filed a brief as amicus curiae in support of the judgment below., Norman Dorsen, Melvin L. Wulf, and Sanford Jay Rosen filed a brief for the American Civil Liberties Union as amicus curiae urging reversal., Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis and Pat Bailey, Assistant Attorneys General, filed a brief for the State of Texas as amicus curiae urging affirmance.
Stewart, Reeqst-Quist.
Cited by 464 opinions  |  Published

Lead Opinion

Per Curiam.

The issue presented by this appeal is whether the laws of Texas may constitutionally grant legitimate children a judicially enforceable right to support from their natural fathers and at the same time deny that right to illegitimate children.

In 1969, appellant filed a petition in Texas District Court seeking support from appellee on behalf of her[*536] minor child. After a hearing, the state trial judge found that appellee is “the biological father” of the child, and that the child “needs the support and maintenance of her father,” but concluded that because the child was illegitimate “there is no legal obligation to support the child and the Plaintiff take nothing.” The Court of Civil Appeals affirmed this ruling over the objection that this illegitimate child was being denied equal protection of law. 466 S. W. 2d 41. The Texas Supreme Court refused application for a writ of error, finding no “reversible error.” We noted probable jurisdiction. 408 U. S. 920.

In Texas, both at common law and under the statutes of the State, the natural father has a continuing and primary duty to support his legitimate children. See Lane v. Phillips, 69 Tex. 240, 243, 6 S. W. 610, 611 (1887) ; Tex. Fam. Code §4.02 (1970) (husband's duty).[1] That duty extends even beyond dissolution of the marriage, Tex. Rev. Civ. Stat., Art. 4639a (Supp. 1972-1973); Hooten v. Hooten, 15 S. W. 2d 141 (Tex. Ct. Civ. App. 1929), and is enforceable on the child’s behalf in civil proceedings and, further, is the subject of criminal sanctions. Tex. Penal Code § 602. The duty to support exists despite the fact that the father may not have custody of the child. Hooten v. Hooten, supra. The Court of Civil Appeals has held in this case that nowhere in this elaborate statutory scheme does the State recognize any enforceable duty on the part of the biological father to support his illegitimate children and that, absent a statutory duty to support, the controlling law is the[*537] Texas common-law rule that illegitimate children, unlike legitimate children, have no legal right to support from their fathers. See also Home of the Holy Infancy v. Kaska, 397 S. W. 2d 208 (Tex. 1965); Lane v. Phillips, supra, at 243, 6 S. W., at 611; Bjorgo v. Bjorgo, 391 S. W. 2d 528 (Tex. Ct. Civ. App. 1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their children. See Curtin v. State, 155 Tex. Cr. R. 625, 238 S. W. 2d 187 (1950); Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929 (1923).

In this context, appellant’s claim on behalf of her daughter that the child has been denied equal protection of the law is unmistakably presented. Indeed, at argument here, the attorney for the State of Texas, appearing as amicus curiae, conceded that but for the fact that this child is illegitimate she would be entitled to support from appellee under the laws of Texas.[2]

We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful[*538] death of a parent and exclude illegitimate children from the benefit of such a right. Levy v. Louisiana, 391 U. S. 68 (1968). Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen’s compensation benefits for the death of their parent. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972).[3] Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is “illogical and unjust.” Id., at 175. We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. Stanley v. Illinois, 405 U. S. 645, 656-657 (1972); Carrington v. Rash, 380 U. S. 89 (1965).

The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

1

Section 4.02 became effective after the commencement of appellant’s suit, but the provision is identical (except for punctuation) to its predecessor, Tex. Rev. Civ. Stat., Husband and Wife, Art. 4614, in 1 Tex. Laws, c. 309, p. 736 (60th Legislature, Reg. Sess. 1967). Section 4.02 was enacted as part of a codification of Texas family law.

2

Tr. of Oral Arg. 24. There was some question at argument whether the statutory scheme relating to paternal support of children was properly drawn into question in the state courts. In the circumstances of this case, we need not resolve the question. First, the State of Texas asserts no prejudice from appellant’s apparent failure to explicitly draw attention to the individual statutes that make up the so-called Texas rule regarding support of legitimate and illegitimate children. On the contrary, the State asserted here that it was prepared to meet appellant’s constitutional attack on its statutes on the merits. Tr. of Oral Arg. 28. Second, under our cases, “the unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ” of certiorari on “nonap-pealable” issues presented in the case. Mishkin v. New York, 383 U. S. 502, 512 (1966). Appellant’s federal claim, which was rejected in the state courts, that her child was being denied equal protection of laws is, therefore, properly before us in any event.

3

See also Davis v. Richardson, 342 F. Supp. 588 (Conn.), aff’d, post, p. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), aff’d, post, p. 1069 (1972).

Dissent

Mr. Justice Stewart, with whom Mr. Justice Reeqst-quist joins,

dissenting.

This case came here as an appeal, on the representation that the Texas courts had sustained the constitutionality of § 4.02 of the Texas Family Code and[*539] Articles 602 and 602-A of the Texas Penal Code, over a challenge to those statutes under the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction, 408 U. S. 920, to consider whether the alleged discrimination between legitimate and illegitimate children, in terms of the support obligations of their biological fathers, denied equal protection to illegitimate children under the principles of Weber v. Aetna Casualty & Surety Co., 406 U. S. 164; Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73; and Levy v. Louisiana, 391 U. S. 68.

Upon the submission of briefs and oral argument, it became clear that neither statute had been the actual subject of litigation in the courts of Texas. Hence, this is not properly an appeal under 28 U. S. C. § 1257 (2). I would, therefore, dismiss the appeal for want of jurisdiction, and treat “the papers whereon the appeal was taken” as a petition for writ of certiorari. 28 U. S. C. § 2103.

The parties were not prepared to submit this case as one challenging the common-law treatment of illegiti-mates in Texas, and failed to provide this Court with a sufficient understanding of Texas law with respect to such matters as custodial versus noncustodial support-obligations, legitimation, common-law marriage, and the effect of a Texas statute, §4.02 of the Family Code, which became law after this litigation had begun. With the issues so vaguely drawn and the alleged discrimina-tions so imprecise, I would dismiss the writ of cer-tiorari as improvidently granted.