1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2.1. Skinner v. Oklahoma ex rel. Williamson, attorney general

SUPREME COURT OF THE UNITED STATES

316 U.S. 535; 62 S. Ct. 1110; 1942 U.S. LEXIS 493; 86 L. Ed. 1655

May 6, 1942, Argued
June 1, 1942, Decided


OPINION:  MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race -- the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari.

The statute involved is Oklahoma's Habitual Criminal Sterilization Act. Okla. Stat. Ann. Tit. 57, §§ 171, et seq.; L. 1935, pp. 94 et seq. That Act defines an "habitual criminal" as a person who, having been convicted two or more times for crimes "amounting to felonies involving moral turpitude," either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. § 173. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile. §§ 176, 177. Notice, an opportunity to be heard, and the right to a jury trial are provided. §§ 177-181. The issues triable in such a proceeding are narrow and confined. If the court or jury finds that the defendant is an "habitual criminal" and that he "may be rendered sexually sterile without detriment to his or her general health," then the court "shall render judgment to the effect that said defendant be rendered sexually sterile" (§ 182) by the operation of vasectomy in case of a male, and of salpingectomy in case of a female. § 174. Only one other provision of the Act is material here, and that is § 195, which provides that "offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act."

Petitioner was convicted in 1926 of the crime of stealing chickens, and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with firearms, and was sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms, and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936 the Attorney General instituted proceedings against him. Petitioner in his answer challenged the Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial was had. The court instructed the jury that the crimes of which petitioner had been convicted were felonies involving moral turpitude, and that the only question for the jury was whether the operation of vasectomy could be performed on petitioner without detriment to his general health. The jury found that it could be. A judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the Supreme Court of Oklahoma by a five to four decision. 189 Okla. nnnnnnn235, 115 P. 2d 123.
 
Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power, in view of the state of scientific authorities respecting inheritability of criminal traits. …

… It is also suggested that the Act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65, 126 P. 75; Mickle v. Henrichs, 262 F. 687. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. …

… But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U.S. 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, "with reference to the time when the fraudulent intent to convert the property to the taker's own use" arises. Riley v. State, supra, 64 Okla. Cr. at p. 189, 78 P. 2d p. 715. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420-421, 204 N. W. 40. In Buck v. Bell, supra, the Virginia statute was upheld though it applied only to feeble-minded persons in institutions of the State. But it was pointed out that "so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached." 274 U.S. p. 208.  [***13]  Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a "trespass" (Bishop, Criminal Law, 9th ed., vol. 1, §§ 566, 567) based on distinctions which are "very largely dependent upon history for explanation" (Holmes, The Common Law, p. 73) could readily become a rule of human genetics. …

Reversed.

CONCUR: MR. CHIEF JUSTICE STONE, concurring:

… There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action. Although petitioner here was given a hearing to ascertain whether sterilization would be detrimental to his health, he was given none to discover whether his criminal tendencies are of an inheritable type. Undoubtedly a state may, after appropriate inquiry, constitutionally interfere with the personal liberty of the individual to prevent the transmission by inheritance of his socially injurious tendencies. Buck v. Bell, 274 U.S. 200. But until now we have not been called upon to say that it may do so without giving him a hearing and opportunity to challenge the existence as to him of the only facts which could justify so drastic a measure.

Science has found and the law has recognized that there are certain types of mental deficiency associated with delinquency which are inheritable. But the State does not contend -- nor can there be any pretense -- that either common knowledge or experience, or scientific investigation, n1 has given assurance that the criminal tendencies of any class of habitual offenders are universally or even generally inheritable. In such circumstances, inquiry whether such is the fact in the case of any particular individual cannot rightly be dispensed with. Whether the procedure by which a statute carries its mandate into execution satisfies due process is a matter of judicial cognizance. A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process. Morrison v. California, 291 U.S. 82, 90, and cases cited; Taylor v. Georgia, 315 U.S. 25. And so, while the state may protect itself from the demonstrably inheritable tendencies of the individual which are injurious to society, the most elementary notions of due process would seem to require it to take appropriate steps to safeguard the liberty of the individual by affording him, before he is condemned to an irreparable injury in his person, some opportunity to show that he is without such inheritable tendencies.