Gomez v. Perez/Dissent Stewart
[p538] MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST 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 [p539] 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 threat "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 illegitimates 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 discriminations so imprecise, I would dismiss the writ of certiorari as improvidently granted.