author: Mr. Justice Brennan Mr. Justice Rehnquist,

text:
    HUGHES v. OKLAHOMA
    No. 77-1439.
    Argued January 9, 1979
    Decided April 24, 1979

      Brennaet, J., delivered the opinion of the Court, in which StewaRT, White, Marshall, BlackmuN, Powell, and SteveNS, JJ., joined. Behnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 339.

      Robert M. Helton argued the cause and filed a brief for appellant.

      Bill J. Bruce argued the cause for appellee. With him on the brief was Larry Derryberry, Attorney General of Oklahoma.
   Mr. Justice Brennan

delivered the opinion of the Court.

The question presented for decision is whether Okla. Stat., Tit. 29, § 4-115 (B) (Supp. 1978), violates the Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution, insofar as it provides that “ [n] o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state ...”

Appellant William Hughes holds a Texas license to operate a commercial minnow business near Wichita Falls, Tex. An Oklahoma game ranger arrested him on a charge of violating § 4-115 (B) by transporting from Oklahoma to Wichita Falls a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Hughes’ defense that § A-115 (B) was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, stating:

“The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state’s border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Lacoste v. Department of Conservation, 263 U. S. 545 . . . ; Geer v. State of Connecticut, 161 U. S. 519 .... As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the police power of the state, and the state has great latitude in determining what means are appropriate for its protection.
. . Oklahoma law does not prohibit commercial minnow hatcheries within her borders from selling stock minnows to anyone, resident or nonresident, and minnows purchased therefrom may be freely exported. However, the law served to protect against the depletion of minnows in Oklahoma’s natural streams through commercial exportation. No person is allowed to export natural minnows for sale outside of Oklahoma. Such a prohibition is not repugnant to the commerce clause . . . .” 572 P. 2d 573, 575 (1977).

We noted probable jurisdiction, 439 U. S. 815 (1978). We reverse. Geer v. Connecticut, 161 U. S. 519 (1896), on which the Court of Criminal Appeals relied, is overruled. In that circumstance, § 4-115 (B) cannot survive appellant’s Commerce Clause attack.

I

The few simple words of the Commerce Clause — “The Congress shall have Power ... To regulate Commerce . . . among the several States . . .” — reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533-534 (1949). The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation. The cases defining the scope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests. Geer v. Connecticut was decided relatively early in that evolutionary process. We hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled.

A

Geer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The decision rested on the holding that no interstate commerce was involved. This conclusion followed in turn from the view that the State had the power, as representative for its citizens, who “owned” in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: “The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.” 161 U. S., at 530. Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted “commerce” at all; in any event the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce.

Mr. Justice Field and the first Mr. Justice Harlan dissented, rejecting as artificial and formalistic the Court’s analysis of “ownership” and “commerce” in wild game. They would have affirmed the State’s power to provide for the protection of wild game, but only “so far as such protection . . . does not contravene the power of Congress in the regulation of interstate commerce.” Their view was that “[w]hen any animal ... is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one State to the exclusion of citizens of another State.”

B

The view of the Geer dissenters increasingly prevailed in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game were involved, but even state regulations of wild game have been held subject to the strictures of the Commerce Clause under the pretext of distinctions from Geer.

The erosion of Geer began only 15 years after it was decided. A Commerce Clause challenge was addressed to an Oklahoma statute designed to prohibit the transportation beyond the State of natural gas produced by wells within the State. West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to “conserve” the gas for the use of its own citizens, stressing the limited supply and the absence of alternative sources of fuel within the State. Nevertheless, the Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute and rejected the State’s arguments with a powerful reaffirmation of the vision of the Framers:

“The statute of Oklahoma recognizes [gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. ... If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that 'in matters of foreign and interstate commerce there are no state lines.’ In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward it must be done by the authority of another instrumentality than a court.” 221 U. S., at 255-256.

The Court distinguished discriminatory or prohibatory regulations offensive to the Commerce Clause, such as the Oklahoma statute, from a valid "exercise of the police power to regulate the taking of natural gas” that was "universal in its application and justified by the nature of the gas and which allowed its transportation to other states.” Id., at 257; see id., at 252-254 (distinguishing Ohio Oil Co. v. Indiana, 177 U. S. 190 (1900)).

In subsequent Commerce Clause challenges to state regulation of exports of natural resources, the West analysis emerged as the dominant approach. See, e. g., Pennsylvania v. West Virginia, 262 U. S. 553, 598-600 (1923); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 (1949). Today’s principle is that stated in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970):

“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. ... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” (Citations omitted.)

This formulation was employed only last Term to strike down New Jersey’s attempt to “conserve” the natural resource of landfill areas within the State for the disposal of waste generated within the State. Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978).

The Geer analysis has also been eroded to the point of virtual extinction in cases involving regulation of wild animals. The first challenge to Geer’s, theory of a State’s power over wild animals came in Missouri v. Holland, 252 U. S. 416 (1920). The State of Missouri, relying on the theory of state ownership of wild animals, attacked the Migratory Bird Treaty Act on the ground that it interfered with the State’s control over wild animals within its boundaries. Writing for the Court, Mr. Justice Holmes upheld the Act as a proper exercise of the treatymaking power. He commented in passing on the artificiality of the Geer rationale: “To put the claim of the State upon title is to lean upon a slender reed.” 252 U. S., at 434.

Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928), undermined Geer even more directly. A Louisiana statute forbade the transportation beyond the State of shrimp taken in Louisiana waters until the heads and shells had been removed. The statute clearly relied on the Geer state-control-of-ownership rationale. Anyone lawfully taking shrimp from Louisiana waters was granted “a qualified interest which may be sold within the State.” Only after the head and shell had been removed within the State did the taker or possessor acquire “title and the right to sell and ship the same ‘beyond the limit[s] of the State, without restriction or reservation.’ ” 278 U. S., at 8.

Ignoring the niceties of “title” to the shrimp and concentrating instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as economic protectionism abhorrent to the Commerce Clause. The analysis resembled that employed in the natural gas cases, which were cited with approval, id., at 10-11, 13. Geer was distinguished on the ground that there “[n]o part of the game was permitted by the statute to become an article of interstate commerce.” 278 U. S., at 12. Limiting Geer to cases involving complete embargoes on interstate commerce in a wild animal created the anomalous result that the most burdensome laws enjoyed the most protection from Commerce Clause attack.

Foster-Fountain Packing’s implicit shift away from Geer’s formalistic “ownership” analysis became explicit in Toomer v. Witsell, 334 U. S. 385, 402 (1948), which struck down as violations of the Commerce Clause and the Privileges and Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen:

“The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States.”

Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge. Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), dispelled any doubts on that score. In rejecting the argument that Virginia’s “ownership” of fish swimming in its territorial waters empowered the State to forbid fishing by federally licensed ships owned by nonresidents while permitting residents to fish, Seacoast Products explicitly embraced the analysis of the Geer dissenters:

“A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of 'owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.... Geer v. Connecticut, 161 U. S. 519, 539-540 (1896) (Field, J., dissenting). The 'ownership’ language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’ [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution.” 431 U. S., at 284.

C

The case before us is the first in modern times to present facts essentially on all fours with Geer. We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer. We thus bring our analytical framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions distinguishing Geer, that statutes imposing the most extreme burdens on interstate commerce (essentially total embargoes) were the most immune from challenge. At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership.

II

We turn then to the question whether the burden imposed on interstate commerce in wild game by § 4-115 (B) is permissible under the general rule articulated in our precedents governing other types of commerce. See, e. g., Pike v. Bruce Church, Inc., 397 U. S., at 142, quoted, supra, at 331. Under that general rule, we must inquire (1) whether the challenged statute regulates evenhandedly with only “incidental” effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but “[w]hen discrimination against commerce ... is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve, the local interests at stake.” Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 353 (1977). Furthermore, when considering the purpose of a challenged statute, this Court is not bound by “[t]he name, description or characterization given it by the legislature or the courts of the State,” but will determine for itself the practical impact of the law. Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545, 550 (1924); see Foster-Fountain Packing Co. v. Haydel, 278 U. S., at 10; Pike v. Bruce Church, Inc., supra.

Section 4-115 (B.) on its face discriminates against interstate commerce. It forbids the transportation of natural minnows out of the State for purposes of sale, and thus “overtly blocks the flow of interstate commerce at [the] State’s borders.” Philadelphia v. New Jersey, 437 U. S., at 624. Such facial discrimination by itself may be a fatal defect, regardless of the State’s purpose, because “the evil of protectionism can reside in legislative means as well as legislative ends.” Id., at 626. At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.

Oklahoma argues that § A-115 (B) serves a legitimate local purpose in that it is “readily apparent as a conservation measure.” Brief for Appellee 8. The State’s interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose. We consider the States’ interests in conservation and protection of wild animals as legitimate local purposes similar to the States’ interests in protecting the health and safety of their citizens. See, e. g., Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129 (1968). But the scope of legitimate state interests in “conservation” is narrower under this analysis than it was under Geer. A State may no longer “keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose.” Geer v. Connecticut, 161 U. S., at 530. The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of “conserving” the wild animals within its borders when-equally effective nondiscriminatory conservation measures are available.

Far from choosing the least discriminatory alternative, Oklahoma has chosen to “conserve” its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State. Yet it forbids the transportation of any commercially significant number of natural minnows out of the State for sale. Section 4-115 (B) is certainly not a “last ditch” attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State’s purported legitimate local purpose more effectively.

We therefore hold that § 4-115 (B) is repugnant to the Commerce Clause.

Ill

The overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders. Today’s decision makes clear, however, that States may promote this legitimate purpose only in ways consistent with the basic principle that “our economic unit is the Nation,” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 537, and that when a wild animal “becomes an article of commerce . . . its use cannot be limited to the citizens of one State to the exclusion of citizens of another State.” Geer v. Connecticut, supra, at 538 (Field, J., dissenting).

Reversed.

Mr. Justice Rehnquist,

with whom The Chief Justice joins, dissenting.

This Court’s seeming preoccupation in recent years with laws relating to wildlife must, I suspect, appear curious to casual observers of this institution. It is no more curious, however, than this Court’s recent pronouncements on the validity of Geer v. Connecticut, 161 U. S. 519 (1896). For less than one year ago we unreservedly reaffirmed the principles announced in Geer. Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 386 (1978). Today, the Court overrules that decision. Because I disagree with the Court’s overruling of Geer and holding that Oklahoma’s law relating to the sale of minnows violates the Commerce Clause, I dissent.

In its headlong rush to overrule Geer, the Court characterizes that decision as “rest[ing] on the holding that no interstate commerce was involved.” Ante, at 327. It is true that one of the rationales relied on by the Geer Court was that the State could exercise its power to control the killing and ownership of animals ferae naturae to prohibit such game from leaving the borders of the State and thus prevent the game from ever becoming the objects of interstate commerce. 161 U. S., at 530-532. Since the Court in Geer was of the view that the challenged statute effectively prevented certain game from entering the stream of interstate commerce, there could be no basis for a Commerce Clause challenge to the State’s law. Id., at 530, 532. I do not dispute the Court’s rejection of this theory; as the Court points out, this rationale was rejected long before today. Ante, at 329; see West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). My objection is that this line of reasoning, while undoubtedly considered important by the majority in Geer, is unnecessary to sustain that decision and is unneeded in the disposition of the present case. And no one — not the Oklahoma Court of Criminal Appeals or the State in this Court — contends that the minnows at issue are not the subjects of interstate commerce. It is obvious that the Court has simply set this theory up as a sort of strawman to facilitate the toppling of a decision which, in other respects, enunciates principles that have remained valid and vital, albeit somewhat refined, at least until today.

The Court in Geer expressed the view derived from Roman law that the wild fish and game located within the territorial limits of a State are the common property of its citizens and that the State, as a kind of trustee, may exercise this common “ownership" for the benefit of its citizens. 161 U. S., at 529. Admittedly, a State does not “own” the wild creatures within its borders in any conventional sense of the word. Baldwin v. Montana Fish & Game Comm’n, supra, at 386; Douglas v. Seacoast Products, Inc., 431 U. S. 265, 284 (1977); Toomer v. Witsell, 334 U. S. 385, 401-402 (1948); Missouri v. Holland, 252 U. S. 416, 434 (1920). But the concept expressed by the “ownership” doctrine is not obsolete. Baldwin v. Montana Fish & Game Comm’n, supra, at 392 (Burger, C. J., concurring). This Court long has recognized that the ownership language of Geer and similar cases is simply a shorthand way of describing a State’s substantial interest in preserving and regulating the exploitation of the fish and game and other natural resources within its boundaries for the benefit of its citizens. 436 U. S., at 386; Douglas v. Seacoast Products, Inc., supra, at 284; Toomer v. Witsell, supra, at 402.

In recognition of this important state interest, the Court has upheld a variety of regulations designed to conserve and maintain the natural resources of a State. See, e. g., Baldwin v. Montana Fish & Game Comm’n, supra; Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545 (1924); Patsone v. Pennsylvania, 232 U. S. 138 (1914); Geer v. Connecticut, supra; Manchester v. Massachusetts, 139 U. S. 240 (1891); McCready v. Virginia, 94 U. S. 391 (1877); Smith v. Maryland, 18 How. 71 (1855). To be sure, a State’s power to preserve and regulate wildlife within its borders is not absolute. But the State is accorded wide latitude in fashioning regulations appropriate for protection of its wildlife. Unless the regulation directly conflicts with a federal statute or treaty, Douglas v. Seacoast Products, Inc., supra, at 283-285; Kleppe v. New Mexico, 426 U. S. 529, 546 (1976); Missouri v. Holland, supra, at 434; allocates access in a manner that violates the Fourteenth Amendment, Takahashi v. Fish & Game Comm’n, 334 U. S. 410 (1948); or represents a naked attempt to discriminate against out-of-state enterprises in favor of in-state businesses unrelated to any purpose of conservation, Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 13 (1928), the State’s special interest in preserving its wildlife should prevail. And this is true no matter how “Bal-kanized” the resulting pattern of commercial activity.

The Oklahoma law at issue in this case serves the special interest of the State, as representative of its citizens, in preserving and regulating exploitation of free-swimming minnows found within its waters. “[T]he law serve [s] to protect against the depletion of minnows in Oklahoma’s natural streams through commercial exportation.” 572 P. 2d 573, 575 (Okla. Crim. App. 1977). Oklahoma’s statutory scheme may not be the most artfully designed to accomplish its purpose. But the range of regulations that a State may adopt under these circumstances is extremely broad, particularly where, as here, the burden on interstate commerce is, at most, minimal. See Douglas v. Seacoast Products, Inc., 431 U. S., at 288 (Rehnquist, J., concurring in part and dissenting in part); Lacoste v. Louisiana Dept. of Conservation, supra, at 552; cf. Baldwin v. Montana Fish & Game Comm’n, 436. U. S., at 391; Kleppe v. New Mexico, supra, at 545.

Contrary to the view of the Court, I do not think that Oklahoma’s regulation of the commercial exploitation of natural minnows either discriminates against out-of-state enterprises in favor of local businesses or that it burdens the interstate commerce in minnows. At least, no such showing has been made on the record before us. Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 154 (1963). This is not a case where a State’s regulation permits residents to export naturally seined minnows but prohibits nonresidents from so doing. No person is allowed to export natural minnows for sale outside of Oklahoma; the statute is evenhanded in its application. See Okla. Stat., Tit. 29, § 4r-115 (B) (Supp. 1978). The State has not used its power to protect its own citizens from outside competition. See Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333 (1977); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 (1949). Nor is this a case where a State requires a nonresident business, as a condition to exporting minnows, to move a significant portion of its operations to the State or to use certain state resources in pursuit of its business for the benefit of the local economy. See Toomer v. Witsell, 334 U. S. 385 (1948); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928); Johnson v. Haydel, 278 U. S. 16 (1928); cf. Pike v. Bruce Church, Inc., 397 U. S. 137, 145 (1970). And, notwithstanding the Court’s protestations to the contrary, Oklahoma has not blocked the flow of interstate commerce in minnows at the State’s borders. See ante, at 336-337. Appellant, or anyone else, may freely export as many minnows as he wishes, so long as the minnows so transported are hatchery minnows and not naturally seined minnows. On this record, I simply fail to see how interstate commerce in minnows, the commodity at issue here, is impeded in the least by Oklahoma’s regulatory scheme.

Oklahoma does regulate the manner in which both residents and nonresidents procure minnows to be sold outside the State. But there is no showing in this record that requiring appellant to purchase his minnows from hatcheries instead of from persons licensed to seine minnows from the State’s waters in any way increases appellant’s costs of doing business. There also is nothing in the record to indicate that naturally seined minnows are any more desirable as items of commerce than hatchery minnows. So far as the record before us indicates, hatchery minnows and naturally seined minnows are fungible. Accordingly, any minimal burden that may result from requiring appellant to purchase minnows destined for sale out of state from hatcheries instead of from those licensed to seine minnows is, in my view, more than outweighed by Oklahoma’s substantial interest in conserving and regulating exploitation of its natural minnow population. I therefore would affirm the judgment of the Oklahoma Court of Criminal Appeals.

       Section 4-115 provides in full:
      “A. No person may ship or transport minnows for sale into this state from an outside source without having first procured a license for such from the Director.
      “B. No person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state except that:
      “1. Nothing contained herein shall prohibit any person from leaving the state possessing three (3) dozen or less minnows;
      “2. Nothing contained herein shall prohibit sale and shipment of minnows raised in a regularly licensed commercial minnow hatchery.
      “C. The fee for a license under this section shall be:

        "1. For residents, One Hundred Dollars ($100.00);
      “2. For nonresidents, Three Hundred Dollars ($300.00).
      “D. Any person convicted of violating any provisions of this section shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Hundred Dollars ($200.00).”
      The prohibition against transportation out of State for sale thus does not apply to hatchery-bred minnows, but only to “natural” minnows seined or procured from waters within the State.
      Section 4r-115 (B) is part of the Oklahoma Wildlife Conservation Code. Another provision of that Code requires that persons have a minnow dealer’s license before they can lawfully seine or trap minnows within the State — except for their own use as bait — §4^11(5 (Supp. 1978), but no limit is imposed on the number of minnows a licensed dealer may take from state waters. Nor is there any regulation except § 4r-115 (B) concerning the disposition of lawfully acquired minnows; they may be sold within Oklahoma to any person and for any purpose, and may be taken out of the State for any purpose except sale.

       “The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 534-535.

        Philadelphia v. New Jersey, 437 U. S. 617, 621-623 (1978), made clear that there is no “two-tiered definition of commerce.” The definition of “commerce” is the same when relied on to strike down or restrict state legislation as when relied on to support some exertion of federal control or regulation.

       See, e. g., Gibbons v. Ogden, 9 Wheat. 1, 209 (1824); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829); Cooley v. Board of Wardens, 12 How. 299 (1852); Port Richmond & Bergen Point Perry Co. v. Board of Chosen Freeholders, 234 U. S. 317 (1914); Di Santo v. Pennsylvania, 273 U. S. 34 (1927); Parker v. Brown, 317 U. S. 341 (1943); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 (1945); H. P. Hood & Sons, Inc. v. Du Mond, supra; Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). See generally, F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite (1937); Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1 (1940); Dowling, Interstate Commerce and State Power — Revised Version, 47 Colum. L. Rev. 547 (1947).

       “[T] he sole issue which the case presents is, was it lawful under the Constitution of the United States (section 8, Article I) for the State of Connecticut to allow the killing of birds within the State during a designated open season, to allow such birds, when so killed, to be used, to be sold and to be bought for use within the State, and yet to forbid their transportation beyond the State? Or, to state it otherwise, had the State of Connecticut the power to regulate the killing of game within her borders so as to confine its use to the limits of the State and forbid its transmission outside of the State?” 161 U. S., at 522.

         Id., at 522-529. The Court has recognized that Geer’s analysis of the authorities on this issue is open to question. Toomer v. Witsell, 334 U. S. 385, 402 n. 37 (1948).

       “The qualification which forbids [the game’s] removal from the State necessarily entered into and formed part of every transaction on the subject, and deprived the mere sale or exchange of these articles of that element of freedom of contract and of full ownership which is an essential attribute of commerce. Passing, however, as we do, the decision of this question, and granting that the dealing in game killed within the State, under the provision in question, created internal State commerce, it does not follow that such internal commerce became necessarily the subject-matter of interstate commerce, and therefore under the control of the Constitution of the United States.
      "... The power of the State to control the killing of and ownership in game being admitted, the commerce in game, which the state law permitted, was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant and was a part of it.” 161 U. S., at 530-532.
      Our Brother Rehnquist suggests that the Court in Geer offered as an “alternative basis for its decision” (in the final paragraph of its 15-page opinion) that the “State, in the exercise of its police power, could act to preserve for its people a valuable food supply, even though interstate commerce was remotely and indirectly affected.” Post, at 340 n. 3. That this was not an “alternative basis,” however, is made clear in a sentence not quoted by our Brother Rehnquist:
      “The power of a State to protect by adequate police regulation its people against the adulteration of articles of food, . . . although in doing so commerce might be remotely affected, necessarily carries with it the existence of a like power to preserve a food supply which belongs in common to all the people of the State, which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the State and subject to the conditions which it may deem best to impose for the public good.” 161 U. S., at 535 (emphasis added).
      Thus, rather than an “alternative basis” independent of the “state ownership” and “no interstate commerce” rationales, this “preservation of a valuable resource” rationale was premised on those rationales. In any event, even if an “alternative basis,” this rationale has met the same fate as Geer’s primary rationale. See infra, at 329-331, and n. 9.

       161 U. S., at 541 (Field, J., dissenting); see id., at 543 (Harlan, J., dissenting).

        Id., at 538, 541-542 (Field, J., dissenting); see id., at 543-544 (Harlan, J., dissenting).

       The inconsistency between the result in this case and that in Geer was not overlooked by the dissenting Justices. See Pennsylvania v. West Virginia, 262 U. S., at 601 (Holmes, J., dissenting). Significantly, our Brother BjehNquist relies on this dissent in his discussion of the “alternative basis” of Geer — the “preservation of a valuable natural resource” rationale. See n. 6, supra; post, at 340-341, n. 3. The Court opinion in Pennsylvania v. West Virginia, like that in West, expressly rejected this argument along with the “no interstate commerce” rationale. 262 U. S., at 599-600.

       The law challenged in Foster-Fountain Packing Co. was passed in July 1926. The state legislature may have been encouraged to take such action by certain language in Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545 (1924), language also relied on by the Oklahoma Court of Criminal Appeals in this case. Lacoste upheld a Louisiana “severance” tax on the skins of all wild furbearing animals and alligators taken in the State. The Court cited Geer for the proposition that:
      “The wild animals within its borders are, so far as capable of ownership, owned by the State in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the State may regulate and control the taking, subsequent use and property rights that may be acquired therein.” 263 U. S., at 549.
      Nevertheless, Lacoste expressly declined to uphold the tax “by virtue of the power of the State to prohibit, and therefore to condition, the removal of wild game from the State.” Ibid. Rather than reach this issue, the Court upheld the measure as a valid police regulation designed to conserve and protect wild animals, noting that the tax applied to all skins taken within the State, whether kept within the State or shipped out. Id., at 550-551. Thus, despite its citation of Geer, Lacoste is actually more compatible with the cases following the views of the Justices dissenting in Geer.

       The preamble to the Act read in part as follows: “To declare all shrimp and parts thereof in the waters of the State to be the property of the State of Louisiana, and to provide the manner and extent of their reduction to private ownership Foster-Fountain Packing Co. v. Haydel, 278 U. S., at 5 n.

       The Court cited these cases for the proposition that “[a] State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” Id., at 10.

       “As the representative of its people, the State might have retained the shrimp for consumption and use therein. . . . But by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. Clearly such authorization and the taking in pursuance thereof put an end to the trust upon which the State is deemed to own or control the shrimp for the benefit of its people. And those taking the shrimp under the authority of the Act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause.” Id., at 13.

       See Hicklin v. Orbeck, 437 U. S. 518, 531-532 (1978). The Court distinguished Geer on the same basis used in Foster-Fountain Packing Co., 334 U. S., at 404-406. Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 420-421 (1948), decided the same day as Toomer, reviewed the cases distinguishing and questioning Geer and found the State's claim to “ownership” inadequate to justify a ban on commercial fishing by alien residents.

       “In more recent years . . . the Court has recognized that the States’ interest in regulating and controlling those things they claim to 'own,’ including wildlife, is by no means absolute. States may not compel the confinement of the benefits of their resources, even .their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) ; Pennsylvania v. West Virginia, 262 U. S. 553 (1923); West v. Kansas Natural Gas Co., 221 U. S. 229 (1911).” Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 385-386 (1978).

       See, e. g., Douglas v. Seacoast Products, Inc., 431 U. S. 265, 285 n. 21 (1977).

         “ [W] hatever [a State’s] ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Philadelphia v. New Jersey, 437 U. S., at 626-627.

       See n. 1, supra.

       Section 4-115 (B) does not apply to persons transporting three dozen or less natural minnows outside the State. See n. 1, supra.

       In its brief, Oklahoma argues, apparently for the first time, that the discrimination against out-of-state sales of natural minnows is justified because minnows purchased in the State are more likely to be used for bait in state waters. Brief for Appellee 3. The State contends that minnows “returned” to state waters as bait do not upset the ecological balance as much as those that never “return.” The late appearance of this argument and the total absence of any record support for the questionable factual assumptions that underlie it give it the flavor of a post hoc rationalization. The State’s bare assertion is certainly inadequate to survive the scrutiny invoked by the facial discrimination of § 4r-115 (B). In any case, Oklahoma itself concedes that the “return” of natural minnows as bait is irrelevant to most aspects of preserving ecological balance. Brief for Appellee 4.

       See, e. g., TVA v. Hill, 437 U. S. 153 (1978) (snail darters); Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371 (1978) (elk); Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977) (menhaden); Kleppe v. New Mexico, 426 U. S. 529 (1976) (wild horses and burros).

       “The fact that internal commerce may be distinct from interstate commerce, destroys the whole theory upon which the argument of the plaintiff in error proceeds. The power of the State to control the killing of and ownership in game being admitted, the commerce in game, which the state law permitted, was necessarily only internal commerce, since the restriction that it should not become the subject of external commerce went along with the grant and was a part of it.” Geer v. Connecticut, 161 U. S., at 532.

       The Court in Geer assigned an alternative basis for its decision. The Court held that a State, in the exercise of its police power, could act to preserve for its people a valuable food supply, even though interstate commerce was remotely and indirectly affected.
      “Aside from the authority of the State, derived from the common ownership of game and the trust for the benefit of its people which the State exercises in relation thereto, there is another view of the power of the State in regard to the property in game, which is equally conclusive. The right to preserve game flows from the undoubted existence in the State of a police power to that end, which may be none the less efficiently called into play, because by doing so interstate commerce may be remotely and indirectly affected. Kidd v. Pearson, 128 U. S. 1, Hall v. De Cuir, 95 U. S. 485; Sherlock v. Alling, 93 U. S. 99, 103; Gibbons v. Ogden, 9 Wheat. 1. Indeed, the source of the police power as to game birds (like those covered by the statute here called into question) flows from the duty of the State to preserve for its people a valuable food supply.” Id., at 534. See also New York ex rel. Silz v. Hesterberg, 211 U. S. 31, 41-42 (1908);
        Pennsylvania v. West Virginia, 262 U. S. 563, 601 (1923) (Holmes, J., dissenting).

       Certain of the statements in the Court’s opinion provide a basis for some hope that these principles may yet survive the overruling of Geer. See ante, at 337: “We consider the States’ interests in conservation and protection of wild animals as legitimate local purposes”; ante, at 338: “The overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders.”

       The Geer Court itself did not use the term “ownership” in any proprietary sense. See 161 U. S., at 529: “ 'We take it to be the correct doctrine in this country, that the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common.’ ”

        Geer recognized limits to the exercise of the State’s power to preserve wildlife within its boundaries. See id., at 528 (this power, which the Colonies possessed, remains in the States “at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution”).

       This view is fully consistent with the balancing approach to Commerce Clause decisionmaking enunciated in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), relied on so heavily by the Court. Ante, at 336. In Pike, the Court stated:
      “Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. ... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” 397 U. S., at 142.
      Given the primacy of the local interest here, in the absence of conflicting federal regulation I would require one challenging a state conservation law on Commerce Clause grounds to establish a far greater burden on interstate commerce than is shown in this case. See infra, at 344-345. See also Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 350 (1977): “[O]ur opinions have long recognized that, 'in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matteis of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it’ H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 567 (1949) (Frankfurter, J., dissenting): “Behind the distinction between 'substantial’ and ‘incidental’ burdens upon interstate commerce is a recognition that, in the absence of federal regulation, it is sometimes — of course not always — of greater importance that local interests be protected than that interstate commerce be not touched.”

       The Court seems to doubt the conservation purpose of the Oklahoma law because the State places no limit on the number of minnows a licensed dealer may take from state waters and imposes no regulation governing the disposition of minnows within the State. Ante, at 337-338, and n. 20. But the State could rationally have concluded that it could adequately preserve its natural minnow population without such additional measures. Tr. of Oral Arg. 18, 20, 21-23. Since, in my view, the prohibition on export of naturally seined minnows imposes little, if any, burden on the interstate commerce in minnows, the State has not violated the Commerce Clause by choosing an export ban on natural minnows as the means to effectuate its special interest in conserving wildlife located within its territorial limits.

       Thus, even putting aside the decision in Geer and the principles for which it has come to be known and considering the Oklahoma statute “according to the same general rule applied to state regulations of other natural resources,” ante, at 335, the Court still has failed to explain how Oklahoma’s laws burden or discriminate against interstate commerce in minnows.


source: Caselaw Access Project

author: Mb. Justice Stewaet Mr. Justice Powell, Mr. Justice White,

license: Public Domain

text:
    PARHAM v. HUGHES
    No. 78-3.
    Argued January 15, 1979
    Decided April 24, 1979

      Stewart, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Rehnquist and SteveNS, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 359. White, J., filed a dissenting opinion, in which BrenNAN, Marshall, and Blackmun, JJ., joined, post, p. 361.

      Thomas E. Greer argued the cause for appellant. With him on the brief was Robert D. Tisinger.

      A. Montague Miller argued the cause and filed a brief for appellee.
   Mb. Justice Stewaet

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Rehnquist, and Mr. Justice Stevens joined.

Under § 105-1307 of the Georgia Code (1978) (hereinafter Georgia statute), the mother of an illegitimate child can sue for the wrongful death of that child. A father who has legitimated a child can also sue for the.wrongful death of the child if there is no mother. A father who has not legitimated a child, however, is precluded from maintaining a wrongful-death action. The question presented in this case is whether this statutory scheme violates the Equal Protection or Due Process Clause of the Fourteenth Amendment by denying the father of an illegitimate child who has not legitimated the child the right to sue for the child’s wrongful death.

I

The appellant was the biological father of Lemuel Parham, a minor child who was killed in an automobile collision. The child’s mother, Cassandra Moreen, was killed in the same collision. The appellant and Moreen were never married to each other, and the appellant did not legitimate the child as he could have done under Georgia law. The appellant did, however, sign the child’s birth certificate and contribute to his support. The child took the appellant’s name and was visited by the appellant on a regular basis.

After the child was killed in the automobile collision, the appellant brought an action seeking to recover for the allegedly wrongful death. The complaint named the appellee (the driver of the other automobile involved in the collision) as the defendant, and charged that negligence on the part of the appellee had caused the death of the child. The child's maternal grandmother, acting as administratrix of his estate, also brought a lawsuit against the appellee to recover for the child’s wrongful death.

The appellee filed a motion for summary judgment in the present case, asserting that under the Georgia statute the appellant was precluded from recovering for his illegitimate child’s wrongful death. The trial court held that the Georgia statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, accordingly, denied a summary judgment in favor of the appellee. On appeal, the Georgia Supreme Court reversed the ruling of the trial court. 241 Ga. 198, 243 S. E. 2d 867. The appellate court found that the statutory classification was rationally related to three legitimate state interests: (1) the interest in avoiding difficult problems of proving paternity in wrongful-death actions; (2) the interest in promoting a legitimate family unit; and (3) the interest in setting a standard of morality by not according to the father of an illegitimate child the statutory right to sue for the child’s death. Accordingly, the court held that the statute did not violate either the Equal Protection or Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction of this appeal from the judgment of the Georgia Supreme Court. 439 U. S. 815.

II

State laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause. Lockport v. Citizens for Community Action, 430 U. S. 259, 272. Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective. New York City Transit Authority v. Beazer, 440 U. S. 568; Vance v. Bradley, 440 U. S. 93; Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314; Dandridge v. Williams, 397 U. S. 471, 485.

Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect.” McLaughlin v. Florida, 379 U. S. 184; Brown v. Board of Education, 347 U. S. 483. And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immutable human attributes. See, e. g., Oyama v. California, 332 U. S. 633 (national origin); Graham v. Richardson, 403 U. S. 365 (alienage); Gomez v. Perez, 409 U. S. 535 (illegitimacy) ; Reed v. Reed, 404 U. S. 71 (gender).

In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures. “The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U. S., at 97 (footnote omitted). The threshold question, therefore, is whether the Georgia statute is invidiously discriminatory. If it is not, it is entitled to a presumption of validity and will be upheld “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Ibid.

Ill

The appellant relies on decisions of the Court that have invalidated statutory classifications based upon illegitimacy and upon gender to support his claim that the Georgia statute is unconstitutional. Both of these lines of cases have involved laws reflecting invidious discrimination against a particular class. We conclude, however, that neither line of decisions is applicable in the present case.

A

The Court has held on several occasions that state legislative classifications based upon illegitimacy — i. e., that differentiate between illegitimate children and legitimate children — violate the Equal Protection Clause. E. g., Trimble v. Gordon, 430 U. S. 762; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164. The basic rationale of these decisions is that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it. As Mr. Justice Powell stated for the Court in the Weber case:

“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.” Id., at 175.

It is apparent that this rationale is in no way applicable to the Georgia statute now before us. The statute does not impose differing burdens or award differing benefits to legitimate and illegitimate children. It simply denies a natural father the right to sue for his illegitimate child's wrongful death. The appellant, as the natural father, was responsible for conceiving an illegitimate child and had the opportunity to legitimate the child but failed to do so. Legitimation would have removed the stigma of bastardy and allowed the child to inherit from the father in the same manner as if born in lawful wedlock. Ga. Code § 74-103 (1978). Unlike the illegitimate child for whom the status of illegitimacy is involuntary and immutable, the appellant here was responsible for fostering an illegitimate child and for failing to change its status. It is thus neither illogical nor unjust for society to express its “condemnation of irresponsible liaisons beyond the bounds of marriage” by not conferring upon a biological father the statutory right to sue for the wrongful death of his illegitimate child. The justifications for judicial sensitivity to the constitutionality of differing legislative treatment of legitimate and illegitimate children are simply absent when a classification affects only the fathers of deceased illegitimate children.

B

The Court has also held that certain classifications based upon sex are invalid under the Equal Protection Clause, e. g., Reed v. Reed, 404 U. S. 71; Stanton v. Stanton, 421 U. S. 7; Frontiero v. Richardson, 411 U. S. 677; Craig v. Boren, 429 U. S. 190. Underlying these decisions is the principle that a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class. Thus, in Reed v. Reed, supra, the Court was faced with the question of the constitutionality of an Idaho probate code provision that gave men a mandatory preference over women, in the same degree of relationship to the decedent, in the administration of the decedent’s estate. The Court held that “[b]y providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause.” 404 U. S., at 77. Similarly, in Frontiero v. Richardson, supra, the Court invalidated the federal Armed Services benefit statutes that were based on the assumption that female spouses of servicemen were financially dependent while similarly situated male spouses of servicewomen were not. 411 U. S., at 690-691. And in the Stanton case, the Court held constitutionally invalid a Utah statute which provided that males had to reach a greater age than females to attain majority status. In reaching this result, the Court rejected the “old notion” that the female is “destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” 421 U. S., at 14-15. See also Orr v. Orr, 440 U. S. 268.

In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity. In Schlesinger v. Ballard, 419 U. S. 498, for example, the Court upheld the constitutionality of a federal statute which provided that male naval officers who were not promoted within a certain length of time were subject to mandatory discharge while female naval officers who were not promoted within the same length of time could continue as officers. Because of restrictions on women officers’ seagoing service, their opportunities to compile records entitling them to promotion were more restricted than were those of their male counterparts. Thus, unlike the Reed and Frontiero cases where the gender-based classifications were based solely on administrative convenience and outworn cliches, the different treatment in the Schlesinger case reflected “not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service.” 419 U. S., at 508 (emphasis in original).

With these principles in mind, it is clear that the Georgia statute does not invidiously discriminate against the appellant simply because he is of the male sex. The fact is that mothers and fathers of illegitimate children are not similarly situated. Under Georgia law, only a father can by voluntary unilateral action make an illegitimate child legitimate. Unlike the mother of an illegitimate child whose identity will rarely be in doubt, the identity of the father will frequently be unknown. Lalli v. Lalli, 439 U. S. 259. By coming forward with a motion under § 74-103 of the Georgia Code, however, a father can both establish his identity and make his illegitimate child legitimate.

Thus, the conferral of the right of a natural father to sue for the wrongful death of his child only if he has previously acted to identify himself, undertake his paternal responsibilities, and make his child legitimate, does not reflect any overbroad generalizations about men as a class, but rather the reality that in Georgia only a father can by unilateral action legitimate an illegitimate child. Since fathers who do legitimate their children can sue for wrongful death in precisely the same circumstances as married fathers whose children were legitimate ab initio, the statutory classification does not discriminate against fathers as a class but instead distinguishes between fathers who have legitimated their children and those who have not. Such a classification is quite unlike those condemned in the Reed, Frontiero, and Stanton cases which were premised upon overbroad generalizations and excluded all members of one sex even though they were similarly situated with members of the other sex.

IV

Having concluded that the Georgia statute does not invidiously discriminate against any class,.we still must determine whether the statutory classification is rationally related to a permissible state objective.

This Court has frequently recognized that a State has a legitimate interest in the maintenance of an accurate and efficient system for the disposition of property at death. E. g., Lalli v. Lalli, supra; Trimble v. Gordon, 430 U. S. 762; Labine v. Vincent, 401 U. S. 532. Of particular concern to the State is the existence of some mechanism for dealing with “the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates.” Lalli v. Lalli, supra, at 265. See also Gomez v. Perez, 409 U. S., at 538.

This same state interest in avoiding fraudulent claims of paternity in order to maintain a fair and orderly system of decedent’s property disposition is also present in the context of actions for wrongful death. If paternity has not been established before the commencement of a wrongful-death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the father of the deceased child. Such uncertainty would make it difficult if not impossible for a defendant to settle a wrongful-death action in many cases, since there would always exist the risk of a subsequent suit by another person claiming to be the father. The State of Georgia has chosen to deal with this problem by allowing only fathers who have established their paternity by legitimating their children to sue for wrongful death, and we cannot say that this solution is an irrational one. Cf. Lalli v. Lalli, 439 U. S. 259.

The appellant argues, however, that whatever may be the problem with establishing paternity generally, there is no question in this case that he is the father. This argument misconceives the basic principle of the Equal Protection Clause. The function of that provision of the Constitution is to measure the validity of classifications created by state laws. Since we have concluded that the classification created by the Georgia statute is a rational means for dealing with the problem of proving paternity, it is constitutionally irrelevant that the appellant may be able to prove paternity in another manner.

y

The appellant also alleges that the Georgia statute violates the Due Process Clause of the Fourteenth Amendment. Nowhere in the appellant’s brief or oral argument, however, is there any explanation of how the Due Process Clause is implicated in this case. The only decision of this Court cited by the appellant that is even remotely related to his due process claim is Stanley v. Illinois, 405 U. S. 645. In the Stanley case, the Court held that a father of illegitimate children who had raised these children was entitled to a hearing on his fitness as a parent before they could be taken from him by the State of Illinois. The interests which the Court found controlling in Stanley were the integrity of the family against state interference and the freedom of a father to raise his own children. The present case is quite a different one, involving as it does only an asserted right to sue for money damages.

Eor these reasons, the judgment of the Supreme Court of Georgia is affirmed.

It is so ordered.

Mr. Justice Powell,

concurring in the judgment.

I agree that the gender-based distinction of Ga. Code § 105-1307 (1978) does not violate equal protection. I write separately, however, because I arrive at this conclusion by a route somewhat different from that taken by Mr. Justice Stewart.

To withstand judicial scrutiny under the Equal Protection Clause, gender-based distinctions must “serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U. S. 190, 197 (1976). See Orr v. Orr, 440 U. S. 268, 279 (1979); Stanton v. Stanton, 421 U. S. 7, 14 (1975); Reed v. Reed, 404 U. S. 71 (1971). We have recognized in various contexts the importance of a State’s interest in minimizing potential problems in identifying the natural father of an illegitimate child. See, e. g., Caban v. Mohammed, post, at 393 n. 15 (adoptions); Lalli v. Lalli, 439 U. S. 259, 268-269 (1978) (inheritance); Gomez v. Perez, 409 U. S. 535, 538 (1973) (child support). Indeed, we have sought to avoid “impos[ing] on state court systems a greater burden” in determining paternity for purposes of wrongful-death actions. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 174 (1972).

The question, therefore, is whether the gender-based distinction at issue in the present case is substantially related to achievement of the important state objective of avoiding difficult problems in proving paternity after the death of an illegitimate child. In Ga. Code § 74-103 (1978), the State has provided a simple, convenient mechanism by which the father of an illegitimate child can eliminate all questions concerning the child’s parentage. Under that statute, a father can legitimate his child simply by filing a petition in state court identifying the child and its mother and requesting an order of legitimation. After notice has been served on the mother, the state court can enter an order declaring the child legitimate for all purposes of Georgia law.

It is clear that the Georgia statute is substantially related to the State’s objective. It lies entirely within a father’s power to remove himself from the disability that only he will suffer. The father is required to declare his intentions at a time when both the child and its mother are likely to be available to provide evidence. The mother, on the other hand, is given the opportunity to appear and either support or rebut the father’s claim of paternity. The marginally greater burden placed upon fathers is no more severe than is required by the marked difference between proving paternity and proving maternity — a difference we have recognized repeatedly. See, e. g., Lalli v. Lalli, supra, at 268-269.

I find the present case to be quite different from others in which the Court has found unjustified a State’s reliance upon a gender-based classification. In several cases, the Court has confronted a state law under which the burdened individual (whether a child born out of wedlock or the father of such a child) has been powerless to remove himself from the statutory burden — regardless of the proof of paternity. See, e. g., Caban v. Mohammed, post, p. 380; Trimble v. Gordon, 430 U. S. 762 (1977). To require marriage between the father and mother often is tantamount to a total exclusion of fathers, as marriage is possible only with the consent of the mother. In the present case, however, no such requirement is imposed upon the father under Georgia law. In sum, therefore, I con-elude that the Georgia statute challenged in this case, unlike the statutes reviewed in our prior decisions, is substantially related to the State’s objective of avoiding difficult problems of proof of paternity.

Mr. Justice White,

with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun join, dissenting.

Appellant is the father, rather than the mother, of a deceased illegitimate child. It is conceded that for this reason alone he may not bring an action for the wrongful death of his child. Yet four Members of the Court conclude that appellant is not discriminated against “simply” because of his sex, ante, at 355, because Georgia provides a means by which fathers can legitimate their children. The dispositive point is that only a father may avail himself of this process. Therefore, we are told, “[t]he fact is that mothers and fathers of illegitimate children are not similarly situated,” ibid.

There is a startling circularity in this argument. The issue before the Court is whether Georgia may require unmarried fathers, but not unmarried mothers, to have pursued the statutory legitimization procedure in order to bring suit for the wrongful death of their children. Seemingly, it is irrelevant that as a matter of state law mothers may not legitimate their children, for they are not required to do so in order to maintain a wrongful-death action. That only fathers may resort to the legitimization process cannot dissolve the sex discrimination in requiring them to. Under the plurality’s bootstrap rationale, a State could require that women, but not men, pass a course in order to receive a taxi license, simply by limiting admission to the course to women.

The plain facts of the matter are that the statute conferring the right to recovery for the wrongful death of a child discriminates between unmarried mothers and unmarried fathers, and that this discrimination is but one degree greater than the statutory discrimination between married mothers and married fathers. In order to withstand scrutiny under the Equal Protection Clause, gender-based discrimination “ ‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’ ” Caban v. Mohammed, post, at 388, quoting Craig v. Boren, 429 U. S. 190, 197 (1976). Because none of the interests urged by the State warrant the sex discrimination in this case, I would reverse the judgment below.

I

The Georgia Supreme Court suggested that the state legislature may have denied a right of action to fathers of illegitimate children because of its interests in “promoting a legitimate family unit” and “setting a standard of morality.” 241 Ga. 198, 200, 243 S. E. 2d 867, 869-870 (1978). But the actual relationship between these interests and the particular classification chosen is far too tenuous to justify the sex discrimination involved. Cf. Trimble v. Gordon, 430 U. S. 762, 768 (1977).

Unmarried mothers and those fathers who legitimate their children but remain unmarried presumably also defy the state interest in “the integrity of the family unit.” In any event, it is untenable to conclude that denying parents a right to recover when their illegitimate children die will further the asserted state interests. In Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73 (1968), we were faced with the same argument in the context of an unmarried mother’s attempt to recover for her child’s death in a State allowing wrongful-death suits by parents of legitimate children. Even though that mother — like appellant in this case — had not pursued a statutory procedure whereby she could have unilaterally legitimated her child and thereby become eligible to sue for the child’s death, we held that it was impermissible to prevent her from seeking to recover. What we said in Glona about unmarried mothers applies equally to unmarried fathers:

“[W]e see no possible rational basis ... for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death.” Id., at 75.

See also Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 173 (1972).

II

Another interest suggested by the Georgia Supreme Court, which a majority of the Court today finds pervasive, is that of “forestalling potential problems of proof of paternity,” 241 Ga., at 200, 243 S. E. 2d, at 869. Whatever may be the evidentiary problems associated with proof of parenthood where a father, but presumably not a mother is involved, I am sure that any interest the State conceivably has in simplifying the determination of liability in wrongful-death actions does not justify the outright gender discrimination in this case.

The Court has shown due respect for a State’s undoubted interest in effecting a sound system of inheritance that will not unduly tie up the assets of the deceased, including his real estate, and prevent its transmission to and utilization by his heirs and the upcoming generation. Formal documentation of entitlement to inherit may be significant in avoiding unending litigation inimical to this interest. But the State has no comparable interest in protecting a tortfeasor from having his liability litigated and determined in the usual way. There is always the possibility of spurious claims in tort litigation, and the plaintiff will have the burden of proof if his parenthood is challenged. The legitimization requirement is not merely a rule concerning the competency of evidence but an absolute prerequisite to recovery for the wrongful death of a child, barring many who are capable of proving their parenthood, solely because they are fathers. It denigrates the judicial process, as well as the interest in foreclosing gender-based discriminations, to hold that the possibility of erroneous determinations of paternity in an unknown number of cases, likely to be few, is sufficient reason to forbid all natural, unmarried fathers who have not legitimated their children from seeking to prove their parenthood and recovering in damages for the tort that has been committed.

Much the same is true of the rather lame suggestion that keeping fathers such as this appellant out of court will protect wrongdoers and their insurance companies from multiple recoveries. This claimed danger is but one of many potential hazards in personal injury litigation, and it is very doubtful that it would be exacerbated if the Georgia statute in this case were stricken down. Assuming that there might be a few occasions where multiple recoveries are threatened, steps could be taken to settle liability in one proceeding, just as actions to quiet title to real estate need not be reopened.at every turn. Whatever risks there may be, however, are not sufficient to justify foreclosing suit by the many, many fathers like Parham, about whose parenthood there is very little doubt indeed.

Ill

The fourth and final interest suggested by the Supreme Court of Georgia as a rea-son that the state legislature may have denied the wrongful-death action to fathers such as appellant is that “more often than not the father of an illegitimate child who has elected neither to marry the mother nor to legitimate the child pursuant to proper legal proceedings suffers no real loss from the child’s wrongful death.” 241 Ga., at 200, 243 S. E. 2d, at 870. Unlike the previous hypothesized state interests, this last does at least provide a plausible explanation for the classification at issue. Yet such a legislative conception about fathers of illegitimate children is an unacceptable basis for a blanket discrimination against all such fathers. Whatever may be true with respect to certain of these parents, we have recognized that at least some of them maintain as close a relationship to their children as do unmarried mothers. Thus, in Caban v. Mohammed, post, p. 380, we struck down a statutory discrimination in adoption proceedings against all unmarried fathers, rejecting the assertion that “broad, gender-based distinction ... is required by any universal difference between maternal and paternal relations at every phase of a child’s development.” Post, at 389.

Nor does the discrimination against fathers of illegitimate children on the basis of their presumed lack of affection for their children become any more permissible simply because a father who is aware of the State’s legitimization procedure may resort to it and thereby become eligible to recover for the wrongful death of his children. Particularly given the facts of this case — where it is conceded that appellant signed his child’s birth certificate, continuously contributed to the child’s financial support, and maintained daily contact with him- — it is unrealistic to presume that unmarried fathers (or mothers) having real interest in their children and suffering palpable loss if their children die will, as a general rule, have pursued a statutory legitimization procedure. Only last Term, we indicated that resort to this very process in the State of Georgia is not constitutionally acceptable as a surrogate measure of an unmarried father’s interest in his child.

Moreover, it is clear that the discrimination at issue in this case does not proceed from merely a considered legislative determination, however unjustified, that parents such as appellant do not suffer loss when their children die. Rather, the particular discrimination in this case is but part of the pervasive sex discrimination in the statute conferring the right to sue for the wrongful death of a child. Even where the deceased is legitimate, the father is absolutely prohibited from bringing a wrongful-death action if the mother is still alive, even if the mother does not desire to bring suit and even if the parents are separated or divorced. The incredible presumption that fathers, but not mothers, of illegitimate children suffer no injury when they lose their children is thus only a more extreme version of the underlying and equally untenable presumption that fathers are less • deserving of recovery than are mothers.

If Georgia would prefer that the amount of wrongful-death recovery be based upon the mental anguish and loss of future income suffered when a child dies — rather than on the “full value of the life of such child,” as the statute now provides — it may amend the statute. But it may not categorically eliminate on the basis of sex any recovery by those parents it deems uninjured or undeserving.

       Section 105-1307 provides:
      “A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery.” (Emphasis added.)

       Under Ga. Code § 74A103 (1978), a natural father can have his child legitimated by court order. Section 74M03 provides:
      “A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and fled, the court may pass an order declaring said child to be legitimate, and capable of inheriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known.”

       Under Ga. Code § 74-202 (1978), a father is required to support an illegitimate child until the child reaches 18, marries, or becomes self-supporting, whichever occurs first.

       Georgia Code § 105-1309 (1978) provides:
      “In cases where there is no person entitled to sue under the foregoing provisions of this Chapter [the wrongful-death Chapter], the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.”

       In cases where statutory classifications affecting illegitimates are so precisely structured as to further a sufficiently adequate state interest, however, the Court has upheld the validity of the statutes. Lalli v. Lalli, 439 U. S. 259; Mathews v. Lucas, 427 U. S. 495; Labine v. Vincent, 401 U. S. 532.

       The constitutionality of the legitimation provision of the Georgia statute has not been challenged and is not at issue in this ease.

       As Mr. Justice Powell stated for the plurality in the Lalli case: “That the child is the child of a particular woman is rarely difficult to prove. Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.” 439 U. S., at 268-269. (Citations omitted.)
      In Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73, the Court held that a Louisiana statute that did not allow a natural mother of an illegitimate child to sue for its wrongful death violated the Equal Protection Clause. That cause was quite different from this one. The invidious discrimination perceived in that ease was between married and unmarried mothers. There thus existed no real problem of identity or of fraudulent claims. See Part IV, infra. Moreover, the statute in Olona excluded every mother of an illegitimate child from bringing a wrongful-death action while the Georgia statute at issue here excludes only those fathers who have not legitimated their children. Thus, the Georgia statute has in effect adopted “a middle ground between the extremes of complete exclusion and case-by-case determination of paternity.” Trimble v. Gordon, 430 U. S. 762, 771. Cf. Lalli v. Lalli, supra. We need not decide whether a statute which completely precluded fathers, as opposed to mothers, of illegitimate children from maintaining a wrongful-death action would violate the Equal Protection Clause.

       See n. 2, supra.

       The ability of a father to make his child legitimate under Georgia law distinguishes this case from Caban v. Mohammed, post, p. 380, decided today. The Georgia legitimation provision enables the father to change the child’s status, and thereby his own for purposes of the wrongful-death statute, and at the same time is a rational method for the State to deal with the problem of proving paternity. Lalli v. Lalli, supra; see Part IV, infra. In the Caban case, by contrast, the father could change neither his children’s status nor his own for purposes of the New York adoption statute.

       Indeed, a similar uncertainty is evident in the present case. The appellee has been sued by both the administratrix of the estate and the appellant for the wrongful death of the child.

       We thus need not decide whether the classification created by the Georgia statute is rationally related to the State’s interests in promoting the traditional family unit or in setting a standard of morality.

       It cannot seriously be argued that a statutory entitlement to sue for the wrongful death of another is itself a “fundamental” or constitutional right.

      I also agree with. Mr. Justice Stewart that the classification of § 105-1307 affects only fathers of illegitimates — not the illegitimates themselves:— and therefore that this case differs substantially from those in which we have found classifications based upon illegitimacy to be unconstitutional. See, e. g., Trimble v. Gordon, 430 U. S. 762 (1977).

       Although Ga. Code §7A-103 (1978) provides that a father may petition, with notice to the mother, to legitimate his child, mothers are not given a similar right. At least one State provides that either parent, or both, may legitimate a child. La. Civ. Code Ann., Art. 203 (West 1952).

       The plurality not only fails to examine whether required resort by fathers to the legitimization procedure bears more than a rational relationship to any state interest, but also fails even to address the constitutionality of the sex discrimination in allowing fathers but not mothers to legitimate their children. It is anomalous, at least, to assert that sex discrimination in one statute is constitutionally invisible because it is tied to sex discrimination in another statute, without subjecting either of these classifications on the basis of sex to an appropriate level of scrutiny.

       Men and women would therefore not be “similarly situated.” Yet requiring a course for women but not for men is quite obviously a classification on the basis of sex.

       The opinion of Mr. Justice Stewart shunts aside the readily apparent classification on the basis of sex in Georgia’s wrongful-death scheme by stressing that appellant’s child was never made legitimate, but it is only the fortuitous event of the mother’s death in this case that makes legitimacy even relevant. In the case of parents of legitimate children, only the mother may sue if she is alive; the father is allowed to sue only “if [there is] no mother.” Ga. Code § 105-1307 (1978). See also infra, at 368.

         Lalli v. Lalli, 439 U. S. 259, 265 (1978). See also Trimble v. Gordon, 430 U. S. 762, 769 (1977).

        See n. 1, supra; Glona v. American Guarantee & Liability Ins. Co., 391 U. S., at 79 n. 7 (Harlan, J., dissenting).

       But cf. Glona v. American Guarantee & Liability Ins. Co., supra, at 76 (“Opening the courts to suits [by the mother of an illegitimate child] may conceivably be a temptation to some to assert motherhood fraudulently”).

       See Lalli v. Lalli, supra; Trimble v. Gordon, supra, at 771, and cases cited therein. Where discrimination on a basis triggering heightened judicial scrutiny is alleged, judicial deference has given way in the context of other statutorily created entitlements, see, e. g., Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Gomez v. Perez, 409 U. S. 535 (1973); Griffin v. Richardson, 409 U. S. 1069 (1972), summarily aff’g 346 F. Supp. 1226 (Md.); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), including wrongful-death recovery; Glona, supra; Levy v. Louisiana, 391 U. S. 68 (1968). In Weber, the Court, per Mr. Justice Powell, expressly analogized the state interest in deciding who may sue for wrongful death to the interest in deciding who may receive workmen’s compensation, and rejected the assertion that the interest in the latter is as substantial as that in intestacy succession, 406 U. S., at 170-172.

       See also Glona v. American Guarantee & Liability Ins. Co., supra, at 76 (“That problem [of fraudulent assertion of motherhood] . . . concerns burden of proof”). Although appellant in this case has substantial evidence of his paternity and it is clear that but for the legitimization requirement there would be no challenge to his capacity to sue, other unmarried fathers whose paternity is challenged may be unable — particularly when, as here, the mother is dead — to offer sufficient evidence to convince the factfinder of paternity.

       Cf. Mathews v. Lucas, 427 U. S. 495 (1976) (upholding the denial of survivors’ benefits under the Social Security Act to illegitimate children unless they are entitled to inherit under state intestacy law or are able to show paternity in one of several other ways, including written acknowledgment by the father, 42 U. S. C. § 402 (d) (3)).

       Certainly, the Court has not shown such solicitude for the problem of an erroneous determination of paternity when the claimed father is the defendant rather than the plaintiff. See Gomez v. Perez, supra, at 538 (holding that a State must entitle illegitimate, as well as legitimate, children to paternal support: “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”).

       See also Reed v. Reed, 404 U. S. 71, 76 (1971) (“Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. . . . [Wjhatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex”).

       See Lalli v. Lalli, 439 U. S., at 268-269.

       In 1977, 15.5% of all children and 51.7% of the black children bom in the United States had unmarried parents. U. S. Dept, of HEW, National Center for Health Statistics, 27 Vital Statistics Report, No. 11, p. 19 (1979). The suggestion that anything approaching a majority of the fathers of these children would “suffe[r] no real loss from the child’s wrongful death” is incredible.

       In Caban v. Mohammed, post, at 393 n. 15, we noted that even a father who establishes his paternity in Family Court pursuant to N. Y. Family Court Act §§ 511 to 571 (McKinney 1975 and Supp. 1978-1979) may not object to his child’s adoption, and thus refusal to allow such objection was not related to the State’s interest that the father “sho[w] that it is in fact his child.” As explained, supra, at 364-366, I have no doubt that this state interest is insufficient in this case also, since even those many fathers presently able to prove their paternity are precluded from bringing suit. Caban certainly did not intimate that the failure of that father to have previously established his paternity might suffice to justify discrimination against him on the basis of presumed differences in maternal and paternal relations.

       241 Ga. 198, 199, 243 S. E. 2d 867, 869 (1978).

       See text at n. 6, supra.

       See Quilloin v. Walcott, 434 U. S. 246, 254 (1978).

       See Ga. Code §§ 105-1307, 105-1308 (1978) (“The full value of the life of the decedent, as shown by the evidence, is the full value of the life of the decedent without deduction for necessary or other personal expenses of the decedent had he lived”).