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August 31, 1972

Tracy Dionne MILLER, by her next friend, Garney Miller, individually and on behalf of all others similarly situated, Plaintiff,
Melvin LAIRD, Secretary of the Department of Defense, et al., Defendants

The opinion of the court was delivered by: ROBINSON, III

By enactment of the Dependents' Medical Care Act *fn1" in 1956 and amendments thereto in later years, *fn2" Congress has sought "to create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services, and for their dependents." *fn3" The "uniformed services" are principally the Armed Forces, *fn4" and the availability of benefits differs somewhat among the several classes of eligibles. Service members "on active duty [are] entitled to medical and dental care in any facility of any uniformed service"; *fn5" certain other service members *fn6" "may, upon request, be given" such care in any such facility. *fn7" Dependents of service members dying on active duty or completing more than thirty days thereof are "entitled, upon request, to" enumerated types of care; *fn8" dependents of service members who then are or at death were entitled to retired, retainer or equivalent pay *fn9" "may, upon request, be given" the same type of care. *fn10" While care for service members on active duty is largely free and is unconditionally offered, *fn11" care for certain other service members *fn12" and for any dependents is subject to standardized charges *fn13" and "to the availability of space and facilities and the capabilities of the medical and dental staff." *fn14"

Eligible dependents include, under specified conditions, the service member's spouse, children, parents and parents-in-law. *fn15" But by 10 U.S.C. ยง 1072(2)(E) -- a provision of the Act as amended and codified *fn16" -- child-dependency is limited to "an unmarried legitimate child, including an adopted child or a step-child," who meets designated requirements. *fn17" This exclusion of illegitimate children from benefits under the Act is the target of this litigation. *fn18" The minor plaintiff was born out of wedlock four years ago. The mother, then 14 years of age, remains unmarried to the father. Three years ago, paternity was established judicially and the father was directed to make weekly payments toward the support of the child. *fn19" When suit was filed, the child resided with her mother and maternal grandmother. *fn20" The father was then serving in the Army in Vietnam and was not contributing to the child's support. *fn21"

 The complaint alleges the understandable desire of the mother and grandmother to qualify the child for medical care *fn22" at a local Army hospital in the event of future illness. It charges that the Act totally prohibits illegitimates from participating in the benefits it confers and that the prohibition is violative of the Fifth Amendment. It seeks a judgment declaring that the exclusion is invalid and an injunction restraining its observance. Defendants, *fn23" governmental officials charged with responsibilities bearing on this controversy, have appeared in support of the statute. We conclude that plaintiff must prevail, and accordingly award the relief sought. *fn24"


 Where, as here, a claim of unconstitutional discrimination is leveled against a federal statute, the Fourteenth Amendment's Equal Protection Clause is not available, and one can look only to the Due Process Clause of the Fifth Amendment for protection. *fn25" The Supreme Court has declared, however, that the concepts of equal protection and due process are not mutually exclusive, but rather that they both stem "from our American ideal of fairness". *fn26" The Court has, too, repeatedly invalidated federal legislation fostering discrimination so unjustifiable as to fly in the face of due process. *fn27" The question for decision in this case is whether the statutory exclusion under scrutiny merits condemnation on that ground.

 In determining whether a particular statutory classification contravenes due process as secured by the Fifth Amendment, courts have generally utilized one or the other of two standards -- the "rational basis" *fn28" or "compelling state interest" tests *fn29" -- which do service in litigation arising under the Equal Protection Clause. The latter test, which is made the stricter of the two, has traditionally been employed only where the discriminatory classification endangers the exercise of one of the more basic constitutional rights. *fn30" We are not put to a categorization of rights or choice of standards in this case, however, for by either approach the exclusion complained of must fall.

 In recent years, four cases dealing with the rights of illegitimate children to claim or enjoy particular statutory benefits have been decided by the Supreme Court, *fn31" and in all but one the Court has applied the rational basis test. *fn32" In Weber v. Aetna Casualty & Surety Company, *fn33" the most recent of these cases, the Court isolated an indispensable feature of any measure of the constitutionality of state-imposed classifications:

The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. *fn34"

 And "[though] the latitude given state economic and social regulation is necessarily broad, when state statutory classifications approach sensitive and fundamental personal rights, [the] Court exercises a stricter scrutiny". *fn35" Thus, said the Court, "[the] essential inquiry in all the foregoing cases is . . . inevitably a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?" *fn36" We turn now to a closer look at the Court's four decisions to ascertain whether the Weber criteria furnish the standard properly to be applied in evaluating the congressional classification challenged here.


 The constitutional dignity of the general right of illegitimate children to share equally with legitimate children in governmentally-conferred benefits was first recognized by the Supreme Court in Levy v. Louisiana *fn37" and Glona v. American Guaranty & Liability Insurance Company, *fn38" both decided in 1968. In Levy, the Court held that the Louisiana wrongful death statute *fn39" created an unconstitutional distinction between legitimate and illegitimate children by prohibiting the plaintiffs, who were in the latter category, from bringing a suit for damages precipitated by the death of their mother. "Legitimacy or illegitimacy of birth," the Court said, "has no relation to the nature of the wrong allegedly inflicted on the mother", *fn40" and it was "invidious to discriminate against [the illegitimate offspring] when no action, conduct or demeanor of theirs [was] possibly relevant to the harm that was done the mother." *fn41"

 Glona,42 a companion case to Levy, struck down a similar provision of Louisiana's wrongful death statute which prohibited a mother from recovering for the death of an illegitimate child. As in Levy, the Court found "no possible rational basis" upon which the disability and illegitimacy could be causally connected, *fn43" and held that "[where] the claimant is plainly the mother, the State denies equal protection of the laws to withhold relief merely because the child, wrongfully killed, was born to her out of wedlock." *fn44"

 In Labine v. Vincent, *fn45" the Court declined to apply Levy and Glona to invalidate Louisiana's statutory scheme of intestate succession, which allowed acknowledged illegitimate children to inherit only if there were no surviving legitimate children, lineal or collateral relatives, or wife. *fn46" The Labine decision did not invoke the rational basis test, *fn47" but as later explained in Weber, "reflected, in major part, the traditional deference to a State's prerogative to regulate the disposition at death of property within its borders." *fn48" Any doubts as to the viability of Levy and Glona after Labine were resolved in Weber,49 the Court's latest ...

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