In thе Matter of the Adoption of J.S., a minor child. WILLIAM E. BOLDEN, Appellant and Intervenor, v. JOHN and JANE DOE, Appellees and Petitioners.
No. 20120751
SUPREME COURT OF THE STATE OF UTAH
Filed November 4, 2014
2014 UT 51
This opinion is subject to revision before final publication in the Pacific Reporter. Fourth District, Provo Dep‘t. The Honorable Lynn W. Davis. No. 114402317.
Attorneys:
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees
JUSTICE LEE announced the judgment of the court and authored the opinion of the court with respect to Parts I, II.A.1, II.A.2.a-b, and II.B, and a plurality opinion with respect to Parts II.A.2.c and II.A.3.
CHIEF JUSTICE DURRANT joined JUSTICE LEE‘s opinion in full.
JUDGE ORME concurred in the judgment and joined JUSTICE LEE‘s opinion with respect to Parts I, II.A.1, II.A.2.a–b, and II.B.
ASSOCIATE CHIEF JUSTICE NEHRING filed a dissenting opinion.
JUSTICE PARRISH filed a dissenting opinion.
Having recused herself, JUSTICE DURHAM does not participate herein; COURT OF APPEALS JUDGE GREGORY K. ORME sat.
JUSTICE LEE, opinion of the Court in part:
¶1 William Bolden is the putative father of a child (J.S.) born in 2011. The case before us on appeal is an adoption proceeding involving John and Jane Doe, the would-be adoptive parents of J.S. Bolden tried to intervene in and object to the Does’ adoption of J.S. He was barred from doing so because he failed to preserve his legal rights as a father by filing a paternity affidavit within the time prescribed by
¶2 This provision of the Utah Adoption Act prescribes the requirements that an unwed father must meet in order to secure the right to assert his parental rights and object to an adoption. It is aimed at protecting the best interests of children born out of wedlock—to ensure that such children have the benefit of a parent committed to preserving their well-being. Unwed mothers acquire parental rights—and the accompanying right to object to an adoption—as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term. An unwed father‘s legal obligation to file the paternity affidavit is a rough counterpart to the mother‘s commitment. When a child is born out of wedlock, the mother, the father, or both may assert their parental rights and thereby
¶3 Utah law is roughly in line with the adoption laws of all states across the country. In every state unwed fathers are required to fulfill legal requirements not imposed on unwed mothers—most commonly, a filing aimed at establishing the father‘s paternity. See infra ¶ 79 n.35. In Utah and elsewhere, the failure to fulfill such requirements in the timeframe required by law amounts to a waiver of the unwed father‘s right to object to an adoption. This consequence is essential to the goal of protecting children by facilitating adoption. Without a requirement of a timely paternity filing, adoptions would be inhibited by being left in limbo.
¶4 The affidavit requirement in Utah law takes the matter of a paternity filing a minor step further—by requiring the father not just to assert and establish paternity, but also to attest under oath that he is able and willing to provide for the child.
¶5 Bolden failed to fulfill this requirement, and in this case he challenges it as unconstitutional. We reject his constitutional challenges and therefore affirm the district court‘s denial of his motion to intervene in the Does’ adoption of J.S.
¶6 First, we uphold the affidavit requirement against Bolden‘s due process challenge. Bolden does not claim that the Adoption Act infringes his procedural due process right to notice and an opportunity to be heard; nor could he, as his failure to file the affidavit is a result of his own procedural misstep (allegedly in accordance with the misadvice of counsel) and not some procedural defect in the law. And Bolden fails tо establish an infringement of a fundamental right of substantive due process, as he fails to present evidence that the right he asserts (to preserve his rights as an unwed father without filing an affidavit) is a matter deeply rooted in established history and tradition.
¶7 Second, we also uphold the affidavit requirement against Bolden‘s equal protection challenge. We do so by recognizing the importance of the state‘s interests in protecting children by facilitating the adoption process, and by concluding that those interests are substantially advanced by the statutory affidavit requirement. We likewise reject Justice Nehring‘s assertion that this requirement is an indication of invidious discrimination or sex-based stereotyping. See infra ¶¶ 93–98, 111.
¶8 There is doubtless room for disagreement about whether our legislature has struck the best balance as a matter of policy. But we see no basis for deriding our law as a product of “invidious gender stereotypes.” Infra ¶ 88. At some level all adoption laws discriminate against unwed fathers—by requiring of them some legal filing not required of unwed mothers. Such requirements are not an indication of stereotype or discrimination. They are simply an element of a legal scheme aimed at assuring that any parent who would block an adoption has manifested a commitment to the child‘s best interests. And we uphold the Utah Adoption Act as constitutional on the basis of its advancement of those important interests.
I
¶9 In the summer of 2010, Bolden was involved in a sexual relationship with S.B. The two were not married. S.B. eventually got pregnant. Approximately two weeks before the baby was born, Bolden filed a petition in the district court seeking to adjudicate paternity and to establish custody, parent time, and child support.
¶10 Bolden‘s unsigned, unverified petition asserted that he was “a fit and proper parent.” It sought “sole physical and legal care, custody, and control of [his] unborn child should [S.B.] decide not to raise the child and attempt to put the child up for adoption.” In the petition Bolden also asserted that “a child support order should enter, effective immediately,” consistent with statutory
¶11 One week later, Bolden filed in Utah‘s putative father registry a sworn and notarized notice that he had commenced paternity proceedings regarding S.B.‘s unborn child. But he did not file a separate affidavit asserting his willingness to assume custody of the child and to submit to a child support order, or disclosing his childcare plans, as required by
¶12 The child, a boy, was born on March 26, 2011. Bolden initially visited the child in the hospital twice, but was thereafter refused access and thus prevented from having any further contact. Three days after the birth, S.B. determined that she wanted to proceed with an adoption and executed a consent to adoption before Judge Lyon of the Second District Court.1 S.B. relinquished the child to the prospective adoptive parents (the Does), who commenced an adoption proceeding that same day. Though their adoption petition acknowledged that they knew the identity of the child‘s father and that the father had made some effort to establish parental rights, they asserted that the father‘s failure to file an affidavit along with his paternity petition was determinative of his rights—in short, that he had none.
¶13 The Does thereafter notified Bolden of their intent to adopt J.S. without Bolden‘s consent. Bolden moved to intervene in the adoption procеeding, seeking to prevent the adoption and to assert his parental rights. Between receiving the Does’ Notice of Adoption Proceedings and filing his motion to intervene, Bolden also filed the affidavit required by section
¶14 The adoptive parents opposed Bolden‘s motion to intervene, arguing that Bolden could not prevent the adoption because he had not complied with the statute by filing an affidavit before S.B. relinquished the child. Bolden acquired new counsel and challenged the constitutionality of section
¶15 The district court heard oral argument on the motions and issued a memorandum decision rejecting Bolden‘s constitutional challenges. It concluded that Bolden had no right to contest the adoption because he had not filed the affidavit required under
¶16 Upon issuance of a final order dismissing Bolden‘s intervention and summary judgment motions, Bolden filed this appeal. Bolden‘s appeal challenges the district court‘s judgment on legal grounds. Our review is accordingly de novo. See Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 41, 308 P.3d 382.
II
¶17 Under our Adoption Act, the consent of an unmarried biological father is not generally required for the adoption of a child who is six months of age or less at the time of placement. See
- initiates proceedings in a district court of Utah to establish paternity under Title 78B, Chapter 15, Utah Uniform Parentage Act;
- files with the court that is presiding over the paternity proceeding a sworn affidavit:
- stating that he is fully able and willing to have full custody of the child;
- setting forth his plans for care of the child; and
- agreeing to a court order of child support and the payment of expenses incurred in connection with the mother‘s pregnancy and the child‘s birth;
- consistent with Subsection (4), files notice of the commencement of paternity proceedings, described in Subsection (3)(a), with the state registrar of vital statistics within the Department of Health, in a confidential registry established by the department for that purpose; and
- offered to pay and paid, during the pregnancy and after the child‘s birth, a fair and reasonable amount of the expenses incurred in connection with the mother‘s pregnancy and the child‘s birth, in accordance with his financial ability . . . .
¶18 Bolden acknowledges his failure to comply with the affidavit requirement of subsection (b) above. Yet he seeks to excuse such failure by challenging the constitutionality of the statutory requirement, asserting that it violates his rights to due process, uniform operation of laws, and equal protection. We find no merit in any of Bolden‘s constitutional claims2 and accordingly affirm.
A. Due Process
¶19 In addressing Bolden‘s due process arguments, we first clarify the distinction between procedural and substantive due process and identify the nature of the claim before us here. After classifying Bolden‘s due process challenge as substantive, we then establish the governing legal framework and standard of scrutiny, and finally proceed to reject Bolden‘s arguments under the applicable standards.
1. Substance v. Procedure
¶20 The Due Process Clause has been construed to encompass both a procedural and a substantive component. Under the procedural component, the courts have long recognized a general right to notice and an opportunity to be heard. See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010); Long v. Ethics & Discipline Comm. of the Utah Supreme Court, 2011 UT 32, ¶ 29, 256 P.3d 206. Thus, for rights the law deems subject to formal process (in courts or other adjudicative bodies), due process requires notice reasonably calculated to inform parties that their rights are in jeopardy3 and a meaningful opportunity to be heard in the course of such proceedings.4 See Wells v. Children‘s Aid Soc‘y of Utah, 681 P.2d 199, 204 (Utah 1984) (explaining that procedural due process requirements encompass the “notice and opportunity to be heard” that “must be observed in order to have a valid proceeding affecting life, liberty, or property“) (emphasis added).
¶22 Such limitations may be challenged on either procedural or substantive due process grounds. A procedural due process attack on a statute of limitations or procedural bar would take the form of an assertion that such a limitation forecloses any meaningful opportunity for the plaintiff to protect its rights.7 A substantive challenge would take a different form. It would involve a broadside attack on the fairness of the procedural bar or limitation, on the ground that the right foreclosed is so fundamental or important that it is protected from extinguishment.8
¶23 Bolden‘s claim is of the latter variety. He nowhere claims that the Adoption Act forecloses his meaningful access to the justice system.9 Nor could he. The
¶24 Thus, Bolden‘s argument is framed as a substantive challenge to the fairness of the affidavit requirement.10 Throughout his opening and reply briefs, Bolden repeatedly characterizes his claim as one challenging the statutory affidavit requirement as “substantively unconstitutional” and as aimed at establishing a “fundamental,” “substantive right” of an unwed father as a parent.
¶25 Justice Nehring‘s dissent portrays Bolden‘s case differently. It insists that Bolden‘s arguments encompass both procedural and substantive due process, while conceding that Bolden briefed only the latter. Infra ¶¶ 114, 116. And it contends that Bolden asserts that the affidavit requirement may deprive him of the procedural right “to be heard ‘at a meaningful time and in a meaningful manner.‘” Infra ¶ 117 (Nehring, A.C.J., dissenting) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). But the argument put forward by the dissent appears nowhere in Bolden‘s briefs. Bolden nowhere complains of the sufficiency of the notice he was given under Utah law or of the adequacy of the opportunity he was provided to “submit evidence” or to otherwise prepare or present his case in court. See infra ¶ 121 (quoting Christiansen v. Harris, 163 P.2d 314, 317 (Utah 1945)). Thus, neither Mathews v. Eldridge nor Christiansen v. Harris is anywhere cited by Bolden on appeal. Nor are any of the other cases cited by Justice Nehring in support of his concerns regarding the “procedural protections” inherent in the right to procedural due process. Infra ¶ 121.11
¶26 Bolden‘s only allusion to procedural due process in his briefs is in a defensive response to arguments put forward by the adoptive parents. In his opening brief, Bolden reiterated his claim to a substantive right to a fair “opportunity to develop a relationship with his newborn and thereby convert his provisional rights into vested parental rights,” while asserting that “this opportunity interest could easily be rendered illusory if the state was free to impose ‘any process’ it wanted on a father‘s ability to perfect his provisional interest.” The adoptive parents seized on this formulation in their responsive brief on appeal. To the extent Bolden claimed a violation of an opportunity to be heard, the adoptive parents quoted our cases for the proposition that “the test for whether a provision of the Adoption Act‘s putative father provisions passes due process muster is whether ‘[t]he Act [] give[s] him a meaningful and adequate procedure to protect this interest.‘” R.C.S. v. A.O.L. (In re Adoption of Baby Girl T.), 2012 UT 78, ¶ 20, 289 P.3d 1251. And under that standard, the adoptive parents asserted that Bolden‘s claim failed as a matter of law because the affidavit requirement was “meaningful and adequate” and because Bolden admittedly failed to comply with it.
¶27 Bolden responded in his reply brief by repudiating any reliance on procedural due process. While acknowledging the adoptive parents’ argument “that an unwed father‘s due process rights are merely procedural” and are satisfied by “whatever ‘process’ the legislature offers him,” Bolden emphasized the substantive nature of his due process claim. Specifically, Bolden confirmed that his due process challenge was to the “substantive constitutionality of the affidavit requirement at issue,” while emphasizing that that claim subsisted regardless of whether the statutory limitations in question were “applied in a procedurally fair manner.”
¶28 Thus, in its content and its terminology, Bolden‘s claim sounds only in substantive due process.12 We accordingly proceed to establish the standard of scrutiny that applies to this claim.
2. Standard of Scrutiny
¶29 The right to due process is principally about process—procedure, not substance. Most of this court‘s caselaw in the field is thus about the nature and extent of the notice required by the constitution, and of the opportunity to be heard once such notice is afforded. See Wells v. Children‘s Aid Soc‘y of Utah, 681 P.2d 199, 204 (Utah 1984) (noting that “[m]ost due process cases concern procedural requirements, notably notice and opportunity to be heard“). The same is true at the federal level. For the most part, the due process precedent in the United States Supreme Court likewise is aimed at clarifying the kind of notice and opportunity to be heard that is guaranteed by the
¶30 On a few occasions, the courts have recognized new substantive rights under the umbrella of due process. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). But the Due Process Clause is not a license for the judicial fabrication of rights that judges might prefer, on reflection, to have been enshrined in the constitution. Our role in interpreting the constitution is one of interpretation, not common-law-making. Thus, the judicial recognition of new fundamental rights of substantive due process is the exception, not the rule. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (“Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history . . . .” (internal quotation marks omitted)).
¶31 That said, the principle of substantive due process is ingrained in both federal and state precedent. So although we proceed cautiously in this domain, we cannot repudiate the substantive due process inquiry altogether. We should instead prescribe carefully the grounds and the basis for the recognition of any al-leged right of substantive due process. To do so, we start with some general background in federal precedent, proceed to more specific precedent as applied to parental rights of unwed fathers, and conclude by articulating the standard of scrutiny applicable here.
a. The lesson of Lochner
¶32 Substantive due process reached its apex in the so-called Lochner era. During this period, in decisions like Lochner v. New York, 198 U.S. 45 (1905), the United States Supreme Court routinely struck down legislation infringing on economic rights (such as the freedom of contract) that it deemed inherent in the guarantee of the Due Process Clause. In Lochner itself, for example, the court held unconstitutional a labor law restricting the number of hours that bakers were allowed to work in a day in New York (ten), concluding that the law was an “unreasonable, unnecessary, and arbitrary interference with the right of the individual” to contract. Id. at 56; see also Adkins v. Children‘s Hosp., 261 U.S. 525 (1923) (striking down federal minimum wage legislation as violative of substantive due process).
¶33 Such expansive use of the Due Process Clause was hardly controversial. Lochner-type invocations of substantive due process sparked now-famous dissents from the likes of Justices Holmes and Harlan, who decried the “ever increasing scope” of the substantive due process rights recognized by their colleagues, and noted the tendency of the doctrine to “give us carte blanche to embody our economic and moral beliefs in its prohibitions.” Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting); see also Lochner, 198 U.S. at 75 (Holmes, J., dissenting) (“Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory . . . .“); id. at 68 (Harlan, J., dissenting) (“If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.“).
¶34 The dissenting view eventually carried the day. In cases marking the beginning of the so-called Progressive Era, the court began to disavow Lochner-style decisionmaking. See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins, and upholding minimum wage legislation). And by the mid-1950s, the court categorically—and unanimously—concluded that “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., 348 U.S. 483, 488 (1955). Thus, with regard to substantive due process challenges to economic regulations, “[t]he almost universal” standard embraced by the courts today is “a rational basis test so tolerant that the substantive content of economic statutes rarely violates due process.” Wells, 681 P.2d at 205.14
¶35 That approach has not been broadly extended beyond the realm of economic rights. With respect to noneconomic rights, the court has continued to uphold certain substantive rights under the Due Process Clause. As noted above, for example, the court has struck down, as violative of due process, restrictions on access to contraception, see Griswold, 381 U.S. 479, and to abortion, see Roe, 410 U.S. 113.
¶36 But the anti-Lochner backlash of the Progressive Era has also had an impact in the realm of noneconomic rights. See Wells, 681 P.2d at 205 (noting, in expressing reluctance to extend new rights of substantive due process, “[t]he almost universal opinion that substantive due process was abused in invalidating economic regulations in the first third of [the twentieth] century“). In recent decades, both this court and our federal counterparts have expressed a diminishing appetite for the judicial recognition of new substantive due process rights in the social realm.
¶37 In Washington v. Glucksberg, 521 U.S. 702 (1997), for example, the United States Supreme Court declined to recognize a substantive due process right to assisted suicide. In so doing, the court noted the uneasy status of the concept of substantive due process, expressing concern for the slipperiness of the judicial slope. Id. at 723 n.23 (noting the potential for judicial abuse, while asserting that once recognized, there is “no principled basis” for confining the right).
b. Substantive due process and parental rights
¶38 We expressed a parallel concern in In re J.P., 648 P.2d 1364 (Utah 1982). In J.P., we built on federal precedent in recognizing a fundamental right for a mother not to lose her rights to her child absent proof of unfitness, abandonment, or neglect. Id. at 1367. In so dоing however, we first acknowledged our discomfort with the judicial recognition of new “rights unknown at common law” and “not mentioned in the Constitution,” particularly as to “substantive due process innovations undisciplined by any but abstract formulae.” Id. at 1375 (citing Moore v. City of East Cleveland, 431 U.S. 494, 503 n.12 (1977)).15
¶39 In recognizing the fundamental interest of a mother in retaining her parental rights absent proof of unfitness, abandonment, or neglect, our J.P. opinion first established a narrow, limiting principle. As a predicate to establishing such a right, we first found that such right was “‘deeply rooted in this Nation‘s history and tradition,’ and in the ‘history and culture of Western civilization.‘” Id. (citations omitted). In support of that conclusion, we cited extensive historical evidence of the “deeply rooted” nature of this right. See id. at 1374 (“The integrity of the family and the parents’ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo-American culture, presupposed by all our social, political, and legal institutions.“). Because the statute at issue in J.P. infringed on the fundamental right recognized by this court, we found it unconstitutional. We held, specifically, that “a mother is entitled to a showing of unfitness, abandonment, or substantial neglect before her parental rights are terminated,” and that the statute that made “no provision for that showing” was “unconstitutional on its face.” Id. at 1377.
¶40 In reaching this conclusion, our decision in J.P. built upon the United States Supreme Court‘s decision in Stanley v. Illinois, 405 U.S. 645 (1972). In J.P., we cited Stanley as establishing the unconstitutionality of an Illinois statute “presuming unwed fathers to be unfit [as] a violation of the due process clause.” 648 P.2d at 1374 (citing Stanley, 405 U.S. at 651). In the context of an unwed father who had lived with his children at least “intermittently for 18 years,” we noted that Stanley had upheld the fundamental right of “‘a man in the children he has sired and raised,‘” a right that was deemed to “‘warrant[] deference and, absent a powerful countervailing interest, protection.‘” Id. (quoting Stanley, 405 U.S. at 651).
¶41 Our J.P. opinion was discussed and extended in our subsequent decision in Wells. In Wells, we considered the constitutionality of a statute predicating an unwed father‘s establishment of his parental rights on the statutory condition of the filing of an acknowledgement of paternity prior to the child‘s placement for adoption. 681 P.2d at 202–03 (considering the constitutionality of
¶43 The standard invoked in Wells, however, is in some tension with the standards employed in subsequent cases. Despite Wells, for example, our more recent cases have held that an unwed father‘s “inchoate” right in his child may be lost if he fails to follow reasonable state procedures for perfecting that right. And our recent cases have done so in a manner foreclosing the sort of heightened scrutiny prescribed in Wells.
¶44 In Τ.Μ. v. B.B. (In re Adoption of T.B.), 2010 UT 42, 232 P.3d 1026, for example, we emphasized that the guarantee of due process recognizes only “an inchoate interest” of an unwed biological father. Id. ¶ 31 n.19. And we concluded that that interest rises to the level of a fundamental right “only when [the father] ‘demonstrates full commitment to the responsibilities of parenthood by [coming] forward to participate in the rearing of his child.‘” Id. (second alteration in original). Because the father in T.B. had failed to satisfy the statutory prerequisites to perfecting his inchoate parental rights, we held that the “natural mother‘s relinquishment of [his] child” for adoption “eliminate[d] his op-
portunity to acquire constitutionally protectable parental rights.” Id. ¶ 40. And we accordingly rejected the biological father‘s argument that there was “no compelling need for the premature termination of [his] . . . parental rights based solely on procedural noncompliance,” concluding that the fact that he “could have complied with the statutory scheme established by the Utah Legislature for acquiring the right to withhold consent to an adoption” foreclosed his alleged fundamental right. Id. ¶¶ 28, 41.¶45 We reiterated a similar standard in In re Adoption of Baby Girl T., 2012 UT 78. In that case, we explained that “[u]nder both federal and state law, an unwed biological father has an inchoate interest in a parental relationship with his child that acquires full constitutional protection only when he demonstrates a full commitment to the responsibilities of parenthood by [coming] forward to participate in the rearing of his child.” Id. ¶ 18 (alteration in original) (internal quotation marks omitted). And we accordingly held that an “unmarried biological father” must only “be given an adequate opportunity to comply with the[] statutory requirements of the Adoption Act in order to assert” a fundamental interest in his parental rights. Id. ¶ 19 (alteration in original) (internal quotation marks omitted). In addition, we again emphasized that an unwed father‘s right is simply “in the opportunity to develop a substantial relationship” with his child, and thus concluded that if the governing statute provides a “meaningful chance” for the father to protect his interests, “he may not complain of the termination of his interest when he fails to strictly comply with its procedures.” Id. ¶ 20.
¶46 The foregoing sets the stage for our statement of the applicable standard of scrutiny. It also emphasizes the difficulty of so doing, given the evident tension in our caselaw. Our cases have consistently applied a deferential standard of federal due process scrutiny of statutory prerequisites to the establishment of parental rights of unwed fathers. See Wells, 681 P.2d at 206 (provision of adoption statute was not “arbitrary” and thus did not violate federal due process protections); In re Adoption of T.B., 2010 UT 42, ¶ 31 (adoption statute preserved “meaningful chance” for putative father to preserve opportunity to develop relationship with his child and thus satisfied due process). Our statement of the applicable state constitutional standard has been inconsistent, however. Wells calls for heightened scrutiny on the ground that a father‘s parental rights are “fundamental.” 681 P.2d at 205 (“fundamental rights of parenthood” require a “higher level of scrutiny” under Utah‘s Due Process Clause). But our subsequent cases apply a much more deferential standard—one in line with the federal standard of scrutiny. See In re Baby Girl T., 2012 UT 78, ¶¶ 11, 19 (due process requires that putative father “have a meaningful chance” to preserve opportunity of relationship with child).
¶47 The standard in T.B. and Baby Girl T. runs directly counter to that set forth in Wells. Instead of applying a heightened standard of scrutiny, our T.B. opinion expressly rejected the biological father‘s argument that showing a “compelling” interest was necessary. See In re Adoption of T.B., 2010 UT 42, ¶ 29. And it applied instead a standard turning only on a showing of a “reasonable opportunity [of a biological father] to preserve his chance to develop a relationship with his child.” Id. ¶ 42. Baby Girl T. is to the same effect. See In re Baby Girl T., 2012 UT 78, ¶¶ 11, 19.
¶48 This tension in our caselaw is nowhere reflected on the face of our opinions. Perhaps the parties in our more recent cases were unaware of the heightened standard applied in Wells; at a minimum they appear not to have called it to our attention. But the tension as to the state standard of scrutiny is front and center in this case. It is reflected clearly in the briefing. Bolden expressly invokes the Wells standard of heightened scrutiny. And the adoptive parents cite T.B. and Baby Girl T. in support of the deferential “reasonable opportunity” or “meaningful chance” standard.
¶49 We are therefore faced with the question of how to resolve this tension—a question not directly confronted in any of our prior cases. And we resolve it in favor of the deferential standard of scrutiny set forth in our more recent cases. We do so, first, because T.B. and Baby Girl T. are our most recent pronouncements on this issue. Because these cases appear to have overtaken Wells on this point, they should control. Litigants in Utah are entitled to rely on our explication of the law as definitive.17 And although T.B. and Baby Girl T. do not expressly overrule Wells on the state
standard of scrutiny, the two lines of cases are unquestionably incompatible. That, without more, would suggest to a litigant that our most recent pronouncement is the law, and has overtaken any prior contrary statement. See Malan v. Lewis, 693 P.2d 661, 676 (Utah 1984) (noting “[t]he general rule from time immemorial” that an opinion from this court “is deemed to state the true nature of the law both retrospectively and prospectively“).
¶50 Second, and in any event, the Wells standard of scrutiny was unnecessary to the outcome in that case, and may thus be viewed as over-enthusiastic dicta.18 Because
¶51 Third, the Wells opinion offers shaky support for its heightened standard of scrutiny, while our analysis in T.B. and Baby Girl T. is in line with our current understanding of the law of substantive due process. The linchpin of the analysis in Wells is the assertion that parental rights are fundamental. From that premise the Wells court concluded that the standard was a heightened one. Thus, the Wells court reasoned “[b]y analogy” to a case implicating the fundamental right to travel (In re Boyer, 636 P.2d at 1087-88) that a statutory regulation of the right of an unwed father was an infringement of a “fundamental right.” Wells, 681 P.2d at 206. But that conclusion was circular, or at least a bit too facile. Under the universal understanding in place at the time of Wells (and still today), an unwed father‘s right was not necessarily fundamental; it was only provisionally so, subject to being perfected by fulfillment of a state‘s statutory requirements for its establishment. See Lehr, 463 U.S. at 261-62 (the “mere existence of a biological link does not merit equivalent constitutional protection,” a putative father must “grasp [the] opportunity and accept some measure of responsibility“); In re Adoption of T.B., 2010 UT 42, ¶ 26 & n.22 (putative father‘s parental rights are provisional rights he “may acquire” by “satisfying certain statutory requirements“); Wells, 681 P.2d at 206 (unwed father‘s right to a relationship with his newborn is “a provisional right” subject to statutory perfection). Thus, under long-settled law, the right of the unwed father in Wells was not properly described as “fundamental” at the threshold point of identifying the applicable standard of scrutiny. Deeming it so was question-begging. So to be true to the settled understanding of the nature of the right of an unwed father, Wells should have carefully considered whether the unwed father in
that case had established his fundamental right as a parent instead of simply assuming that he had.
¶52 That careful analysis, moreover, should have followed the approach modeled in J.P., as informed by the United States Supreme Court decisions culminating in Lehr. And that approach is not simply to assume at the highest level of generality that an unwed father‘s interests are fundamental. It is to ask instead the more specific question whether the precise interest at stake is fundamental in the sense of being justified not by the mere “abstract formula[]” informed by a judge‘s instincts of fairness, but by a clear indication that that interest is “deeply rooted in this Nation‘s history and tradition and in the history and culture of Western civilization.” In re J.P., 648 P.2d at 1374-75 (internal quotation marks omitted); see also Glucksberg, 521 U.S. at 728 (statute prohibiting assisted suicide constitutional because assisted suicide is not a fundamental right deeply rooted in American tradition).
¶54 The required showing of “deeply rooted” history and tradition was made in J.P., but not in Wells. J.P. concerned the question of a mother‘s right to maintain her parental rights absent proof of unfitness, abandonment, or neglect. 648 P.2d at 1375. And on that point the evidence of a deeply embedded history and tradition was powerful. Thus, as a predicate to recognizing a fundamental right in J.P., the court relied on widespread historical evidence of a longstanding tradition of respecting a parent‘s custodi-al rights except upon proof of unfitness, abandonment, or neglect. Id. at 1374.
¶55 No such historical record was presented in Wells. The Wells court cited no established tradition of recognizing an unwed father‘s inherent right to his child without regard to any compliance with statutory prerequisites such as a paternity filing. Instead, the court simply asserted, at the highest level of generality, that parental rights and familial bonds are significant, and thus that those rights are “fundamental” and accordingly subject to “a more stringent standard.” Wells, 681 P.2d at 202, 206. In so concluding, moreover, the Wells court also acknowledged that the rights of an unwed father are merely “provisional,” and therefore subject to forfeiture absent fulfillment of the preconditions to their eventual fulfillment. Id. at 205-08 (citing Lehr, 463 U.S. at 249). And absent evidence of a specific tradition of respecting the rights of unwed fathers without fulfilling statutory prerequisites, the Wells opinion essentially assumed away the problem by simply presuming that the right in question was fundamental.20
¶56 The heightened standard in Wells was not justified by the record and authority presented. Absent a record of a deeply embedded tradition of protecting the unwed father‘s rights regardless of the fulfillment of any preconditions prescribed by statute, our court was in no position to declare the right in Wells a “fundamental” one. We should instead have simply concluded, as we more recently have done in T.B. and Baby Girl T., that the standard was the deferential, fallback standard of rationality or arbitrariness.
¶57 For these reasons, we would repudiate the heightened scrutiny standard announced in Wells. In our view, the standard requires more than a broad, general assertion
3. Bolden‘s Substantive Due Process Claim
¶58 That leaves only the question of the viability of Bolden‘s particular claim of an infringement of his rights of substantive due process. We conclude that he has failed to make the kind of showing rooted in settled history and tradition, and thus that his claim is subject only to review for rationality or arbitrariness. And because we find the statutory gateway to establish his parental rights to be a rational, meaningful opportunity, we reject his claim and uphold the statute‘s constitutionality.
¶59 Bolden fails to present any historical basis for rooting the right he asserts in “this Nation‘s history and tradition” or in “the history and culture of Western civilization.” In re J.P., 648 P.2d at 1375 (internal quotation marks omitted). His briefs make no effort to identify any longstanding, widespread basis in our history and culture for recognizing a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law).22 Instead, the right asserted by Bolden implicates the slippery slope problems associated with “substantive due process innovations undisciplined by any but abstract formulae.” Id.
¶60 Bolden insists that his interest is “more than a mere biological connection to his newborn son.” But he offers “[no] principled basis for confining the right” that he asserts. Glucksberg, 521 U.S. at 733, n.23. Endorsement of a substantive right in this case
would inevitably lead to a series of line-drawing problems going forward, requiring the courts to make policy judgments about whether the biological father before the court had done enough to properly justify the recognition of his parental rights.
¶61 Those policy judgments are matters for legislative action. Our legislature has spoken to this question, prescribing a series of prerequisites to an unmarried biological father‘s perfection of his inchoate interest in his child. Bolden asks us to second-guess those requirements (at least one of them). He asks us to establish a substantive due process right to perfect his parental rights on something less than the grounds prescribed by the legislature—by filing a paternity
¶62 Bolden‘s claim is thus subject only to deferential review of the rationality or non-arbitrariness of the statutory scheme, or in other words, of whether the statute preserves a meaningful opportunity for him to perfect his parental rights. Under that standard his claim fails, as he has made no attempt to suggest that the affidavit requirement is arbitrary or that the opportunity afforded to him by statute is not meaningful.
¶63 Instead, he just claims that he ignored the statute on the (bad) advice of counsel. If so, that is unfortunate. But bad legal advice is no excuse for a failure to follow the law. For better or worse, our legal system treats attorneys as agents for their clients. And on that basis, we generally deem clients responsible for the decisions they make on advice of counsel.
¶64 There is an exception to this rule: In criminal cases, defendants convicted upon objectively deficient advice at trial may be entitled to a new trial as a remedy on a constitutional claim for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 691-92 (1984) (to prevail on ineffective assistance of counsel claim defendant must show deficient performance by counsel that was objectively unreasonable and prejudicial). But the exception proves the rule. Except in these limited circumstances, a misstep on advice of counsel is still a misstep, and a client‘s recourse is simply an action for malpractice. See Jennings v. Stoker, 652 P.2d 912, 913 (Utah 1982) (general rule in civil cases is that judgment of district or trial court will stand despite incompetence or negligence of one‘s own counsel); Peterson v. Peterson, 2006 UT App 199U, para. 9 (memorandum decision) (malpractice action is the “appropriate remedy for the client whose counsel‘s performance falls below the standard of professional competence” (internal quotation marks omitted)). That reality is less than ideal, particularly in cases like this one where money damages are cold comfort for the injury associated with the loss of parental rights. But that is the law—and perhaps a reminder that our system is imperfect, and that the remedies it affords may fall short of the ideal of restoring the losses suffered by the wronged.
¶65 Bolden‘s due process claim accordingly fails under the applicable standard of scrutiny. We therefore affirm the district court‘s denial of this claim.
B. Uniform Operation and Equal Protection
¶66 The Uniform Operation Clause of the Utah Constitution states that “[a]ll laws of a general nature shall have uniform operation.”
¶67 Bolden‘s claim thus arises under the modern notion of “uniform operation,” which is simply a “state-law counterpart to the federal Equal Protection Clause.” Id. ¶ 35. Under this formulation, we employ a three-step test wherein we assess: (1) “what classifications,” if any, “the statute creates,” (2) “whether different classes . . . are treated disparately,” and (3) if there is disparate treatment, “whether the legislature had any reasonable objective that warrants the disparity.” Id. (alteration in original) (quoting State v. Angilau, 2011 UT 3, ¶ 21, 245 P.3d 745).
¶68 Most classifications are presumptively permissible and thus subject to rational basis review. Canton, 2013 UT 44, ¶ 36 (citing State v. Robinson, 2011 UT 30, ¶ 22, 254 P.3d 183). Other
¶69 Not all “suspect” classifications are treated identically, however. For one thing, sex-based classifications are evaluated under a less-searching standard than that applied to race-based ones. Thus, race-based classifications are evaluated under a standard of strict scrutiny (requiring a compelling governmental interest advanced by the least restrictive means possible23), while sex-based classifications are evaluated as a matter of intermediate scrutiny (requiring only an important governmental interest that is substantially advanced by the legislation).24
¶70 Second, not all sex-based classifications implicate the same considerations under this intermediate standard of scrutiny. The notion of a “substantial” relation between means and ends implies a threshold consideration of the nature and extent of the discrimination at issue. For “official action that closes a door or denies opportunity to women (or to men),” it is difficult for the government to show that its discriminatory policy “substantially”
advances an important objective. United States v. Virginia, 518 U.S. 515, 532 (1996) (concluding that Virginia failed to carry this burden in failing to identify an “exceedingly persuasive” justification for its policy of excluding women from Virginia Military Institute). On the other hand, for official action that is less imposing, the operative standard will be easier to satisfy. See Nguyen v. I.N.S., 533 U.S. 53, 70 (2001) (explaining, in upholding federal immigration rule requiring unwed fathers of children born abroad to satisfy standards not imposed on unwed mothers, that the court is “mindful” that the “obligation” imposed on fathers “is minimal“). This is particularly true where the differential treatment of men and women is rooted in “[i]nherent differences” between the sexes, and where such differences translate not into an outright bar on one of the sexes, see Virginia, 518 U.S. at 532-33 (internal quotation marks omitted), but a regime preserving meaningful opportunities to both sexes, see Lehr v. Robertson, 463 U.S. 248, 267 (1983) (holding that where a father had no established relationship with his child and had failed to file with the putative father registry, “nothing in the Equal Protection Clause [would] preclude[] the State from withholding from him the privilege of vetoing the adoption of that child” (alteration in original) (internal quotation marks omitted)); Friehe v. Schaad, 545 N.W.2d 740 (Neb. 1996) (holding that it was not a violation of equal protection to require a father to file with the putative father registry within five days of his child‘s birth or lose the right to object to an adoption
¶71 In any event, the intermediate standard of scrutiny does not require a precise fit between means and ends. A simple “substantial” relation will do, and that standard does not require proof that the official action adopted by government is the “least restrictive means” of accomplishing the government‘s objectives. See
Nguyen, 533 U.S. at 70 (“None of our gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every instance.“).
¶72 We apply this standard to the affidavit requirement in
¶73 That said, it is important to recognize the nature and extent of the classification at issue. This is not a statute that “closes a door or denies opportunity” to men outright. Virginia, 518 U.S. at 532. Instead, this provision preserves meaningful opportunities for both sexes, and the threshold basis for its differential treatment of men and women stems initially not from an outmoded stereotype but from a straightforward matter of biology. It bears emphasizing, moreover, that the requirement the statute imposes on men is straightforward and quite simple. See Nguyen, 533 U.S. at 70 (noting the relevance of the “minimal” obligations imposed on unwed fathers under federal immigration law). And we reiterate that the standard of intermediate scrutiny does not require a closely tailored fit between means and ends. Only a “substantial” fit is required—a showing that the important ends of government are substantially advanced by the statute.
¶74 We uphold the statute under this standard. The overarching, important governmental objective is clearly prescribed by statute—the preservation of the “best interests” of children. See
¶75 To make this objective a reality, moreover, the government has long pursued ancillary goals of great significance—of prescribing laws and procedures aimed at establishing binding connections between children and parents, either through a
child‘s natural parents or through adoption.27 In either setting, the State has a twofold interest—of promptly identifying those who might be designated as parents, and of reliably28 ensuring that such persons will fulfill their parental role.29 To further those goals, moreover, the state has a subsidiary interest in giving voice to those with a demonstrated commitment to the best interests of the child—to allow them to either step forward to assert their interest in parenting a child or, if not, to express their willingness to relinquish their rights of parenthood by consenting to an
¶76 Justice Nehring‘s dissent rejects these interests as somehow reflective of a “stereotype” that “exclude[s] or protect[s] members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior.” Infra ¶ 94 (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)). This analysis misses the mark on several grounds: (a) the Adoption Act excludes no one; it preserves an unwed father‘s right to object to an adoption upon fulfillment of straightforward statutory criteria; (b) the statute employs no presumption in favor of women, as it does not award custody to the mother, but establishes an orderly adoption proceeding in circumstances where the sole parent recognized by law has elected to relinquish parental rights and give up the child for adoption (to a couple, or even a single man or woman); and (c) the dissent confuses the threshold question of the legitimacy of the state‘s interests with the secondary question of the degree to which the statute in question advances those interests.31
¶77 For these and other reasons, there is no basis for Justice Nehring‘s assertion that the affidavit requirement is “actually based on generalizations about men‘s inherent qualities as parents“—that “they are uninterested in their offspring and ill-suited or incompetent caregivers.” Infra ¶¶ 94-95.32 Those
are nowhere found in the interests set forth by statute or in the appellees’ briefs in this case. Thus, we agree that the court is not to proceed on the basis of “justification[s] of its own invention.” Infra ¶ 93. But it is the dissent, and not the court, that commits that mistake. The interests we analyze are those identified in our law of protecting the best interests of children by giving voice in their adoption to those who have established a demonstrated commitment to their well-being prescribed clearly by statute. And those interests (along with their substantial advancement by the affidavit requirement) are likewise echoed in the briefs filed by appellees herein.33
¶78 The affidavit requirement in Utah Code section 78B-6-121(3) can be upheld as substantially advancing these important objectives. An unwed mother‘s connection to her child is objectively apparent. It is also substantial. By electing to carry the child to term (and not ending it by abortion or emergency contraception), a mother gives an objective indication of her commitment to the best interests of her child.34 Our law has
significance of that commitment. It does so by deeming a mother‘s parental rights and responsibilities as fully matured at the time of the child‘s birth, in a manner giving her a voice in the child‘s upbringing—either to proceed as the child‘s parent or to relinquish her rights in consenting to an adoption.
¶79 An unwed father‘s role is inherently different than a mother‘s. His connection to his offspring may be unknown or at least indeterminate. And unlike the mother, the father has not necessarily given an objective manifestation of his commitment to the child‘s best interests, as his contribution may be only fleeting and incidental. This is why our law has long deemed the unwed father‘s rights as only inchoate or provisional—as requiring the fulfillment of legal prerequisites before being granted the rights and responsibilities of parenthood, and before being given a concomitant voice in upbringing or a decision regarding adoption.35
Our Adoption Act is hardly unique in requiring unwed fathers (but not mothers) to step forward to fulfill statutory prerequisites to the establishment of parental rights. Every state requires putative fathers to fulfill some formal requirement that is not imposed on mothers, e.g., by registering with a putative father registry or by taking some other affirmative act such as filing a paternity suit. See Mary Beck, Toward a National Putative Father Registry Database, 25 HARV. J.L. & PUB. POL‘Y 1031, 1080, (2002) (detailing putative father registries in thirty-two states, all of which place an onus on the putative father not placed on the unwed mother); Children‘s Bureau, U.S. Dep‘t of Health & Human Servs., The Rights of Unmarried Fathers (2014), available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/putative.pdf (detailing paternity statutes in all fifty states and various methods of establishing paternity whether by registration, paternity action, or paternity affidavit). Granted, there are differences in the laws of the states as to the precise nature of the father‘s legal duty. But the uniform rulе throughout the United States is that an unwed father is required to make a formal showing—in some manner not required of unwed mothers—to establish his parental rights. Noticeably absent from the national legal landscape is a requirement of a maternity declaration for unwed birth mothers. And in that sense the discrimination that the dissent complains of is hardly an obscure feature of Utah law; it is a longstanding, well-settled element of the law across the country. So if our law can accurately be denigrated as a product of sex-based stereotyping, then the same is true of the law of essentially every other state throughout the country. The dissent‘s dismissive denigration of Utah law falls flat on that and other grounds.
It is a fair question to ask whether the requirements of Utah law (in particular, the filing of an affidavit) go further than necessary. But that is at heart a policy question—a matter of line-drawing, as to whether a paternity filing itself is sufficient to advance the state‘s interests, and to place an unwed father on equal footing with the unwed mother.
Justice Nehring takes no issue, in either his procedural or substantive due process analysis, with “other requirements” the statute imposes to ensure that an unwed father has accepted the responsibilities of parenthood. See infra ¶¶ 121, 131. To that extent
¶ 80 The fundamental differences36 between unwed mothers and fathers explain
¶ 81 We uphold the statutory affidavit requirement on that basis. Thus, we hold that the requirement in
¶ 82 Both commitments are important prerequisites to the maturation of the parental right—and to the voice that accompanies such a right in the context of an adoption. Where both mother and father have provided the commitment that is legally necessary to a mature parental right, they both are in a position to participate in the decision whether to raise the child themselves or to place it for adoption. If not, however, the law treats the decision as belonging only to the parent whose rights have matured. That is constitutionally permissible, as it substantially advances the important goal of protecting the best interests of children, who are in turn substantially interested in establishing binding connections to committed parents (natural or adopted) based on informed decisions of those who have shown to have their best interests at heart.37
¶ 84 Thus, the affidavit advances important functions that are not addressed by the paternity action alone. We uphold the statute on that basis, and accordingly affirm the denial of Bolden‘s motion to intervene in the adoption proceedings herein.
ASSOCIATE CHIEF JUSTICE NEHRING, dissenting:
INTRODUCTION
¶ 85 I dissent. First,
¶ 86 “The relationship between parent and child is protected by the federal and state constitutions.”1 Among the persons entitled to protection are unmarried fathers.2 The liberty interest of parents in the care, custody, and control of their children “is perhaps the oldest of the fundamental liberty interests” recognized by the United States Supreme Court.3 Mr. Bolden challenges
ANALYSIS
I. UTAH CODE SECTION 78B-6-121(3)(b) UNCONSTITUTIONALLY DISCRIMINATES ON THE BASIS OF SEX
¶ 87 I dissent because I believe the affidavit requirement violates equal protection. It does so primarily by discriminating between the sexes on the basis of gender stereotypes and failing to satisfy the heightened scrutiny standard. To its credit, the majority acknowledges that
¶ 88 The United States Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws,”6 and the Utah Constitution guarantees that “[a]ll laws of a general nature shall have uniform operation.”7 “[T]hese two constitutional provisions embody the same general principle: persons similarly situаted should be treated similarly . . . .”8 Although the uniform operation of laws provision of the Utah Constitution “establishes different requirements from the federal Equal Protection Clause,” Utah‘s uniform operation of the laws provision is “at least as exacting, and in some circumstances, more rigorous than the standard applied under the federal constitution.”9 Therefore, any provision that fails to meet the federal equal protection standard would likewise fail under
¶ 89
¶ 90 Because
¶ 91 The United States Constitution‘s guarantee of equal protection of the laws is
¶ 92 When confronted by a statute that facially discriminates on the basis of sex, the court‘s equal protection analysis should consist of a rigorous inquiry that answers the following two key questions. First: What is the governmental objective actually served by the statute, and is it an important one? Second: If the governmental objective is indeed important, is the discriminatory classification directly and substantially related to that objective?20 The majority fails to properly analyze either of these questions. I would hold that the statute fails to survive heightened scrutiny under both parts of the equal protection test.
A. The Government Objective Served by Utah Code Section 78B-6-121(3)(b) Is Illegitimate Because It Is Based on the Stereotype That Men Are Inherently Inferior Parents
¶ 93 By now it is well established that legislative objectives based on gender stereotypes are not legitimate under any standard of scrutiny.21 To determine whether the government objective is important, the court must engage in а “searching” inquiry.22 It must take great care to ascertain “whether the statutory objective itself reflects archaic and stereotypic notions.”23 If it does, “the objective itself is illegitimate.”24 Yet, instead of taking “[c]are” to “ascertain[] whether” the claimed statutory objective “itself reflects archaic and stereotypic notions”25 or “perpetuate[s]” stereotypes about men‘s presumed “inferiority”26 as caretakers, the majority not only accepts the Does’ asserted legislative purpose but goes so far as to provide a justification of its own invention.27 This is impermissible under any formulation of heightened scrutiny. Although under the rational basis inquiry a court may uphold a law based on any conceivable legitimate government interest, under heightened scrutiny it is the proponent
¶ 94 I dissent because even the most minimally “searching”32 inquiry reveals the impermissible stereotyping at the root of
¶ 95 The affidavit requirement reflects a negative stereotype that is commonly wielded against unwed fathers: that they are uninterested in their offspring and ill-suited or incompetent caregivers. Telling language in the Does’ brief captures this attitude: “The requirement to set forth his plans for the child‘s care shows that [the unwed father] has at least thought through what he would need to do to fulfill his parental responsibilities” (emphasis added). More insight can be gleaned from the Does’ quotation of In re Adoption of Baby Boy Doe for the proposition that the State has a legitimate interest in getting a “glimpse into how [the unwed father] will meet daily care-giving responsibilities”35 so that the State can be assured that the unwed father will adequately fulfill the parental role.36 The idea that men are inherently ill-suited for caregiving and at greater risk of failing to “fulfill” basic parental responsibilities is a stereotype and thus an entirely inappropriate legislative objective. Indeed, this stereotype is precisely the flip side of the same generalization that has long been applied to women—i.e., that they
¶ 96 The court of appeals’ reasoning in In re Adoption of Baby Boy Doe is a perfect illustration of the improper stereotypes that infect
¶ 97 The majority‘s own phrasing is telling: “[T]he statutory affidavit requirement . . . assur[es] that any biological parent who steps forward to assert an interest in a child has manifested a commitment to the child‘s best interests.”43 Of course, because under the majority‘s reasoning a mother‘s commitment is simply assumed when the child is born,44 when the majority says “biological parent,” it can only mean “biological father.” Thus, the majority holds that the affidavit requirement is justified as a way of ensuring that fathers “reliably” indicate their ability to “fulfill their parental role.”45 But there is no rational reason to assume that a father‘s ability to fulfill the parental role is any less reliable than a mother‘s. The only way to accept such an assumption is to embrace the stereotype that unwed fathers are inherently less reliable parents. It is only by accepting the stereotypes underlying
B. The Affidavit Requirement Is Not Substantially Related to the Proposed Government Interest
¶ 99 Although I would strike down the statute as based on an illegitimate underlying purpose,48 I write further to note that the statute is also unconstitutional because there is no “direct, substantial relationship between objective and means.”49 Thus, even accepting the legislative purpose in its most favorable light, the discriminatory classification is not substantially related to that objective.50 I disagree with the majority‘s conclusion that the affidavit requirement “can be upheld as substantially advancing” important government interests for three reasons. First, instead of requiring the Does to satisfy their “demanding” burden to justify the discrimination, the majority instead supplies a justification for them—this is impermissible under heightened scrutiny. Second, the discriminatory affidavit requirement is redundant and thus cannot be “substantially related” to the goal of ensuring a father‘s commitment to assuming a parental role. Third and finally, the physical fact of pregnancy and birth does not “express”51 anything about a woman‘s inherent attitudes, intentions, or feelings. In other words, biological differences, while real, do not justify stereotypes and generalizations about women‘s supposedly inherent feelings toward their infants. Biological differences cannot be used to perpetuate the gender stereotypes inherent in the majority‘s notion that the mother, simply because she is the mother, has a special “voicе”52 that the father lacks, to decide the fate of the child.53
1. The Majority Fails to Require the Does to Bear Their Burden to Justify the Discriminatory Classification
¶ 100 Despite the fact that under heightened scrutiny the “burden of justification is demanding and it rests entirely on the State”54 (or in this case, on the proponent of
¶ 101 The majority writes that the important legislative objective underlying
- The State has a “compelling interest in identifying unwed fathers who will actually assume the parental role and fulfill the corresponding responsibilities.” (Emphasis added.)
- “[I]t is usually best for the child if the mother decides soon after the child‘s birth whether she will . . . allow the father to raise the child . . . . To aid the mother in making this crucial decision, it is completely understandable that the Legislature would require an unwed father to make the sworn statements.” (Emphasis added.)
- “[I]t is commonplace for an unwed mother to be lulled into deciding to parent her child by false promises made by the father, only to find out too late that she alone must shoulder the entire burden . . . . A mother who has the courage to place her child for adoption should not have to wonder whether the adoption may later be undone by a putative father.” (Emphasis added.)
- “[I]f a man is not willing to legally commit to the mother and her future children by marrying her prior to the child‘s conception, it is not unduly harsh to require him to file a sworn affidavit.”
- “The affidavit requirement serves the further purpose of ferreting out those cases were [sic] the putative father truly does not want to be responsible for the child, but has been put up to filing a paternity action to obstruct the adoption by someone else.” (Emphasis added.)
2. Utah Code Section 78B-6-121(3)(b) Is Not Substantially Related to an Important Government Interest Because It Is Redundant
¶ 102 Even if one ignores the fact that the majority itself comes up with a government rationale justifying the discrimination and thus impermissibly relieves the proponents of the legislation of their burden to do so, and even if one accepts that the government‘s interest is legitimate and important, the affidavit requirement is nonetheless unconstitutional because it is redundant and unnecessary. The affidavit requirement does not provide any meaningful additional assurance that the father is “commit[ted] to the best interests of the child”64 beyond what is readily ascertainable by the fact that he has stepped forward, identified himself, paid expenses (or offered to do so), and filed a legally binding document in a Utah district court declaring himself the father and expressing a corresponding willingness to assume all of the legal duties and responsibilities that come with that status. The other requirements of
demonstration of that commitment by the discriminatory means of the affidavit requirement does not present an “exceedingly persuasive” justification for the discrimination, especially when the affidavit is based entirely on invidious stereotypes about men‘s inherent parental inferiority.65
¶ 103 It is not disputed that Mr. Bolden satisfied three of the four requirements of
¶ 104 In Nguyen v. I.N.S., the United States Supreme Court upheld an immigration statute that favored mothers over fathers on the basis that, due to biology, at birth the father may be unknown while the mother is easily identifiable.66 The majority attempts to justify
¶ 105 The other requirements of
3. Physical Differences Cannot Be Used to Justify Discrimination Based on Stereotypes
¶ 106 The majority‘s reference to abortion is baffling.69 The majority attempts to justify the discrimination wrought by
¶ 107 Carrying a child to term could—but does not necessarily—indicate a mother‘s concern for the fetus‘s interest before birth.75 Regardless, the successful completion of pregnancy and delivery says nothing about a mother‘s commitment to care for the child
¶ 108 The affidavit requirement not only requires the father to declare that he is “able and willing” to take full custody of his child, but also forces him to make a written “plan” for the child‘s care.77 These requirements are future-oriented. I fail to see how the mother‘s decision not to get an abortion indicates anything about her ability or willingness to care for her child after it is born. Moreover, I vehemently disagree that a woman‘s so-called “voluntary decision” to carry the baby to term “express[es]” anything about her plan for the child‘s care or her commitment to the child‘s best interest after it is born.78 For one thing, obtaining an abortion is painful, costly, time-consuming, morally and religiously fraught, and, for many women, nearly impossible or actually impossible due to age,79 religion, geography, employment demands, or cost. For another, the fact of being pregnant and carrying a baby to term is a physical reality that cannot rationally be used to surmise anything about the woman‘s internal feelings and intentions. In short, the majority‘s abortion rationale is not only based on impermissible gender stereotypes, but even taken on its own terms, it is absurd and illogical.
¶ 109 While it is of course true that a woman is inherently different from a man in that she can become pregnant and theoretically undergo an abortion, the majority improperly uses this difference to justify a statute that is based not on biological difference but rather on invidious stereotypes about the parenting attitudes and capabilities of men and women.80
¶ 110 The majority‘s assumptions about the difference in “commitment” between an unmarried mother and an unmarried father are not actually based on the physical reality of pregnancy and birth. This is because a difference in commitment does not stem from a biological reality in the way that parental identity under Nguyen does.81 In other words, it is a biological reality that a father need not be present at birth. It is not a biological reality that a woman is committed to the best interest of her child.
¶ 111 The majority uses a woman‘s physical characteristics to make generalizations about her feelings and assumes, based on her gender alone, that she has a greater commitment to the best interest of her child.82 This
¶ 112 I also take issue with the majority‘s assertion that we simply “disagree about the wisdom of the legislature‘s policy decision to add a requirement of an affidavit.”87 My disagreement with the majority is about the constitutionality of the statute, not the legislature‘s wisdom. The majority today upholds a statute that discriminates on the basis of gender. With all due respect, and as explained herein, the majority‘s decision is deeply flawed. The majority perpetuates the sexual stereotypes embodied in
II. THE AFFIDAVIT REQUIREMENT VIOLATED MR. BOLDEN‘S RIGHT TO THE PROTECTION OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS
¶ 113 Mr. Bolden‘s challenge to the constitutionality of the affidavit requirement is a
Mr. Bolden concedes that he did not comply with the affidavit requirement of
A. Procedural Due Process
¶ 114 The majority baldly states that Mr. Bolden‘s due process claim “sounds only in substantive due process.”89 I respectfully disagree. Mr. Bolden has squarely challenged the statute under the Due Process Clause, which contains both procedural and substantive elements. The majority itself claims that the “right to due process is principally about process—procedure, not substance.”90 However, despite this view, and despite the majority‘s professed suspicion of the very notion of substantive due process,91 the majority is nevertheless unwilling to evaluate Mr. Bolden‘s claim through the lens of fair process.
¶ 115 “A due process right of access to the courts exists when fundamental interests are present and the State has exclusive control over the adjustment of [the] legal relationships involved.”92 The United States Supreme Court has held that states may not irrationally deny people access to the courts, particularly where, as here, “resort to the judicial process” is, “in a realistic sense,” involuntary.93 In Logan v. Zimmerman Brush Co., the Court explained that “[t]he State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limitations, or, in an appropriate case, filing fees,” but nevertheless “what the Fourteenth Amendment does require, however, is an opportunity . . . granted at a meaningful time and in a meaningful manner, for [a] hearing appropriate to the nature of the case.”94 This is because “courts, even in aid of their own valid processes,” are limited by the Due Process Clause in their ability to “dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.”95 “[H]aving made access to the
¶ 116 While it is true that Mr. Bolden frames his argument in terms of substantive due process, he has squarely challenged the statute under the Due Process Clause, and this court has said that it will be “unwilling to disregard controlling authority that bears upon the ultimate resolution of a case solely because the parties did not raise it below.”98 The majority claims that no authority exists that “yields a judicial prerogative to second-guess the wisdom of state law standards . . . under the guise of procedural due process.”99 But on the contrary, if the legislature has violated the constitution, such “second-guessing” is this court‘s raison d‘être. Moreover, evaluating a properly presented constitutional challenge to a given law is in no way an exercise of “free-wheeling authority”100—it is a proper exercise of our actual authority.101
When presented with a constitutional challenge, it is our job to evaluate whether the legislature has overstepped its constitutional bounds.102 That is what Mr. Bolden has asked us to do here, and the majority abrogates its judicial duty by refusing to fully address his constitutional claim.
¶ 117 Procedural due process issues arise when an individual is “claiming a right to a fair process in connection with [his] suffering a deprivation of life, liberty, or property.”103 The fundamental requirement of due process
¶ 118 Utah has recognized the importance of due process since its founding.107 Utah‘s Due Process Clause provides a guarantee “that a party shall have his day in court.”108 Due process of law “hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.”109
¶ 119 Due process is “flexible,” and requires analysis of the “given situation” in order to ensure that individuals facing deprivation are afforded procedures that comport with fundamental fairness.110 “Applying the Due Process Clause is therefore an uncertain enterprise” in which the court “must discover what ‘fundamental fairness’ consists of in a particular situation.”111 But the overarching principle is that due process “expresses the requirement of fundamental fairness.”112
¶ 120 When deciding whether a certain procedure has been fundamentally fair in accordance with the constitutional guarantee of due process, we begin by determining what private interest has been “affected by governmental action.”113 This is because “[t]he extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss.‘”114 Indeed, the Supreme Court has long held that “the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any . . . decisionmaking process.”115
¶ 121 According to the majority, Mr. Bolden could not raise a procedural due process claim where he failed to file the affidavit as a “result of his own procedural misstep.”116
¶ 122 The loss of one‘s children is rightly viewed as one of the most “grievous”121 losses a person can suffer. It is “plain beyond the need for multiple citation that a natural parent‘s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.”122 Despite the majority‘s dismissive stance toward the right of an unmarried biological father to raise his child,123 a desire to parent and a fundamental interest in parenting one‘s child does not turn on whether a person is male or female, unmarried or wed.
¶ 123 The United States Supreme Court held in Lehr v. Robertson that an unwed father who “demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child‘” acquires “substantial protection under the due process clause.”124 Because unwed fathers are “not automatically identified by virtue of their role in the process of birth,”125 it is true that “the mere existence of a biological link” alone does not merit full constitutional protection.126 Yet, an unwed father who has “merely” a biological link to a given infant still benefits from constitutional protection. Even if a father has failed to or has not yet demonstrated a “full commitment to the responsibilities of parenthood,” under the Due Process Clause, a state must still adequately protect an unwed father‘s opportunity to form a parental relationship.127 Of course, in Lehr, the child in question was over two years old and the father had done nothing to develop a relationship with her.128 Thus, the question of whether the father had made a commitment
¶ 124 The procedures in place in
¶ 125 In this case, Mr. Bolden sought to assert his opportunity interest in raising his biological child. This right is a remarkably important one, and is inextricably tied with the fundamental right to rear one‘s own children. The right to a relationship with one‘s children is one of the most precious rights known to humankind and thus individuals facing the loss of this right deserve ample, vigorous procedural protection,133 not a statutory labyrinth. Mr. Bolden was deprived of a relationship with his biological child based on a technicality—he received bad advice from his lawyer and failed to submit an affidavit, though he had already submitted numerous other documents and complied with our uniquely complex adoption statute in every other way.
¶ 126 The majority dismisses Mr. Bolden‘s due process concerns as posing the risk of leading this court to “a series of line-drawing problems.”134 Even if this were true, such a rationale cannot justify perpetuating a statute that is fundamentally unfair as applied to Mr. Bolden.135 By refusing to robustly address Mr. Bolden‘s constitutional challenge, the majority upholds a statutory regime that was created to reduce unmarriеd biological fathers’ rights to the barest minimums.136
¶ 127 Because an unmarried father‘s liberty interest in asserting his parental status is so strong, I would hold that, as applied to Mr. Bolden, the affidavit requirement was fundamentally unfair.137 The application of the affidavit requirement here deprived Mr. Bolden, who complied with
¶ 128 Accordingly, I would hold that Mr. Bolden was denied adequate procedural due process and that his consent to the adoption was required.
B. Substantive Due Process
¶ 129 Mr. Bolden claims that his interest in parenting his biological child is a fundamental right and as such deserves protection under the Due Process Clause. The majority mischaracterizes Mr. Bolden‘s claim, stating that he has asserted the “right to perfect his parental rights on something less than the grounds prescribed by the legislature” and “a perfected right in unmarried biological fathers arising upon their mere filing of a paternity suit.”139 This is not the right that Mr. Bolden has asserted. This misstatement cannot be traced to anything contained in Mr. Bolden‘s briefs or oral argument. Instead, Mr. Bolden explicitly stated that the right he is asserting for protection under the Due Process Clause is “an unwed father‘s provisional right to raise his newborn.” And we have clearly announced the proper framework for such a challenge: “the proponent of legislation infringing parental rights must show (1) a compelling state interest in the result to be achieved and (2) that the means adopted are narrowly tailored to achieve the basic statutory purpose.”140
¶ 130 The majority dismisses Mr. Bolden‘s clear invocation of his parental right as “fram[ed] at too-high a level of generality” and, even more strangely, claims that his assertion of a so-called “generic interest in parenthood” is not “precise” enough.141 This position cannot be squared with Supreme Court precedent, which has long recognized that the private interest of a father in the custody of his children is both “cognizable and substantial.”142 Mr. Bolden is not required to claim any more precise an interest than the fundamental, if provisional, right to raise his child, and the majority‘s requirement that he provide something more appears to avoid the issue. First, the court claims that Mr. Bolden did not and cannot raise a procedural due process challenge, but
¶ 131 Contrary to the plurality‘s143 assertion that Mr. Bolden‘s substantive due process claim rests on an “innovation[] undisciplined by any but abstract formula[],”144 Mr. Bolden‘s claim rests upon “perhaps the oldest of the fundamental liberty interests” recognized by the Supreme Court145 and a right that has been recognized by this court.146 The plurality fails to appreciate that our 1982 case Wells v. Children‘s Aid Society of Utah explicitly recognized an unwed father‘s fundamental, “provisional right” to raise his children and held that a statute that interferes with such a right is subject to strict scrutiny.147 There, we stated very clearly that under the Utah Constitution, “an unwed father‘s right to his relationship with his newborn is a provisional right . . . [and] [w]e measure the statutory specifications for the termination of that provisional right against the tests of compelling state interest and narrowly tailored means.”148 The plurality goes to great lengths in its attempt to explain Wells away, but it ultimately fails to convincingly do so. Instead of following Wells as precedent under the principle of stare decisis, the plurality instead (1) spuriously labels it “dicta,” (2) claims that it has been effectively overruled by later cases, and finally (3) simply asserts that the court today would have decided the case differently—maligning the decision as having “shaky” support and a “bit too facile” conclusion.149 The plurality asserts that the Wells court relied on an “abstract formula” when it deemed an unwed father‘s parental interest fundamental.150 But one does not need to rely on any formula to conclude that a father has a deep, personal interest in his child, and if he steps forward at the child‘s birth, that right should not be taken away by the government absent a compelling reason.151
Cite as: 2014 UT 51
NEHRING, A.C.J., dissenting
¶132 Despite this court‘s decisions in Wells, Thurnwald, and the bulk of United States Supreme Court authority to the contrary,152 the plurality proceeds as though unmarried biological fathers have no substantive due process rights, provisional or otherwise.153 Without justification, the majority
¶133 The majority begins its discussion with a lengthy exposition of the United States Supreme Court‘s Lochner era.155 This discussion has no place in the analysis. Even post-Lochner, the United States Supreme Court and this court have consistently upheld substantive due process concerning certain non-economic rights, including “parents’ inherent right and authority to rear their own children.”156 While placing the law in “historical context” may be a proper academic pursuit, I believe such verbosity is best curtailed, particularly in what is already a lengthy opinion. While extended historical analysis may occasionally be called for, it should be used sparingly and with restraint. In my view, the court should be reluctant to include dicta indicating its opinions about the history of the law.157 The truth is, it is well established under the law of both the United States and Utah that an unwed father‘s interest in asserting custody of his infant child or retaining custody of his older children is “cognizable and substantial.”158
¶134 Moreover, though the plurality claims that there is no “historical basis” for a deeply rooted fatherly parental right,159 in fact the recognition of the parental rights of fathers has a strong basis in American and English history. As this court explained in 1982, the “parental right . . . is rooted . . . in nature and human instinct. . . . [T]he parent‘s right, as well as duty, to care for a child may be termed natural, as well as legal and moral.”160 The historical importance of fathers is well captured in a Mississippi Supreme Court case from 1900:
Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. . . . Nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely.161
Or, as we stated in In re J.P.,
Men and women in most cultures have long viewed their offspring as somehow
being an extension of themselves, and as more than mere ‘property.’ The bearing and raising of children has probably brought people into contact with some sense of the Infinite, the mysteries of the universe, or Nature—however one may express it—more than any other human experience. Thus, it is not surprising that common law judges refer to parental interests as ‘sacred,’ ‘natural,’ or ‘fundamental’ rights, espe-cially when the constitutional standard for a ‘fundamental’ right is whatever judges find when they look to the traditions and (collective) conscience of our people to determine whether a principle is so rooted (there) . . . as to be ranked as fundamental. . . .162
¶135 It is true that, historically, out-of-wedlоck births were relatively rare and socially inappropriate, exposing both father and child to social and legal stigma. In the twenty-first century, however, cultural attitudes toward out-of-wedlock births have shifted. In 2012, over 40 percent of births in the United States were to unmarried women.163 As we noted in In re Baby Girl T., “policies predicated on the notion that unwed fathers are universally uninterested in their offspring or unwilling to embrace parenthood—even when unwed mothers on occasion are not—are being overtaken by stark . . . changes in public attitudes toward marriage.”164
¶136 Due to the nature of the birth process, the identity of the father of an unmarried woman‘s baby is not immediately obvious.165 While on that basis the United States Supreme Court and this court have held that an unmarried father‘s parental right is “provisional” or “inchoate“—we have never held that it is no right at all.166 Indeed, this court has said that an unmarried father‘s opportunity to assert parental rights demands protection from governmental infringement through the use of strict scrutiny.167 I would recognize the importance of an unwed father‘s provisional right by applying strict scrutiny to legislation that infringes upon it. The plurality denies that Mr. Bolden has any protected substantive due process interest in his newborn, fails to employ strict scrutiny, and thereby abandons decades of precedent. In short, the court fails to protect the parental rights of unmarried fathers, to say nothing of the children who will grow up without ever knowing them.
¶137 The court acknowledges that our decision in Wells v. Children‘s Aid Society of Utah “adopted a different standard [of scrutiny] under the
¶138 The plurality explains that it would overrule Wells171 in part because it claims that two later cases, In re Adoption of T.B. and In re Baby Girl T., control as the “most recent pronouncements” on the issue of the standard of scrutiny.172 But the plurality fails to note that there is an obvious reason that the Wells-Thurnwald line of cases was not used in In re Adoption of T.B. and In re Baby Girl T.—it is because the putative father in those cases did not bring a claim under the
¶139 The plurality also claims that “in any event, the Wells standard of scrutiny was unnecessary to the outcome in that case, and may thus be viewed as over-enthusiastic dicta.”178 I disagree. A court‘s reasoning is not “dicta” just because the court “could easily have reached the same conclusion” by
¶140 Wells established the standard of scrutiny for a legislative infringement of parental rights—and more specifically, the parental rights of unwed fathers—under the
¶141 In sum, I would evaluate Mr. Bolden‘s claim using strict scrutiny and would find that
CONCLUSION
¶142 The court‘s decision today represents an indefensible departure from this court‘s and the United States Supreme Court‘s constitutional jurisprudence. I would first and foremost hold that
JUSTICE PARRISH, dissenting:
¶143 I agree with Justice Nehring that the affidavit requirement of the Utah Adoption Act (the Act),
¶144 As both the majority opinion and Justice Nehring‘s dissent explain, the affidavit requirement discriminates on the basis of sex.1 In order for an unwed father to perfect his parental rights, he must
file[] with the court . . . a sworn affidavit:
(i) stating that he is fully able and willing to have full custody of the child;
(ii) setting forth his plans for care of the child; and
(iii) agreeing to a court order of child support and the payment of expenses incurred in connection with the mother‘s pregnancy and the child‘s birth.2
An unwed mother is not required to file a similar affidavit; her parental rights are perfected by default.
¶145 This is facially disparate treatment on the basis of sex. Accordingly, to pass muster under the
I. INTERMEDIATE SCRUTINY
¶146 The majority correctly recognizes that legislative classifications that discriminate on the basis of gender are evaluated under a standard of intermediate scrutiny. In my view, however, the majority unfairly distinguishes controlling precedent from the United States Supreme Court by implying that there are actually two categories of intermediate scrutiny and then evaluating the affidavit requirement under the less stringent standard.
¶147 The majority would apply a higher level of scrutiny to those cases of “‘official
¶148 But the United States Supreme Court has not recognized the distinction suggested by the majority. It has articulated only one definition of intermediate scrutiny applicable in sex discrimination cases. In fact, it has defined an “exceedingly persuasive justification” as one in which the discriminatory scheme is “substantially related” to the ends it seeks to achieve.11 I therefore am not persuaded that the United States Supreme Court cases striking sex-based classifications for failure to advance an exceedingly persuasive justification are distinguishable.12 And while I acknowledge that the United States Supreme Court‘s precedent in this area is far from clear, it appears to me that the majority opinion‘s formulation of the lower level of intermediate scrutiny it applies is, in practice, virtually indistinguishable from the rational basis review applicable in cases that involve no discriminatory classification.
II. THE DOES HAVE FAILED TO MEET THEIR BURDEN OF ESTABLISHING AN EXCEEDINGLY PERSUASIVE JUSTIFICATION FOR THE DISCRIMINATORY AFFIDAVIT REQUIREMENT
¶149 In my view, application of the established standard of intermediate scrutiny to the affidavit requirement leads to the conclusion that the Does have failed to meet their burden of establishing that the Act‘s disparate treatment of unwed fathers and unwed mothers is substantially related to achieving an important governmental objective. The starting point of the analysis is to identify the objectives that the Act is intended to promote.
¶150 The Act sets forth a variety of governmental objectives. It declares that “[i]t is the intent and desire of the Legislature that in every adoption the best interest of the child should govern.”13 The Act further declares that “the state has a compelling interest in requiring unmarried biological fathers to demonstrate commitment” to the responsibilities of parenthood.14 While the Legislature may prefer that we simply accept what is set out in the “Legislative intent and findings” section of the Act,15 intermediate scrutiny requires a more searching analysis. This is particularly true in cases such as this, where one of the stated legislative objectives is itself discriminatory—that of requiring that only unmarried biological fathers demonstrate commitment to the responsibilities of parenthood. Therefore, while the Legislature has defined the purpose of the Act as requiring only unmarried biological fathers
¶151 Because we cannot allow a discriminatory legislative objective to justify a discriminatory legislative requirement, we must conclude that the Act‘s objective is to secure a forward-looking commitment by a parent to raise a child before allowing that parent to have any say in the child‘s future. And if that is the objective, we must ask why such a forward-looking commitment is required of only unwed fathers.
¶152 The majority maintains that the Act serves two purposes. First, the majority posits that it provides a mechanism of promptly identifying those who might be designated as parents.17 Second, it ensures that such persons will fulfill their parental role.18 I acknowledge that biological differences between men and women justify their disparate treatment with respect to the identification of unwed fathers. But I fail to see how such biological differences justify treating men and women differently when it comes to their forward-looking commitment to fulfill their parental role. Because the affidavit requirement relates only to this second objective, I conclude that it fails intermediate scrutiny.
¶153 The starting point for analyzing the Act‘s disparate treatment of men and women is the legitimate difference between a mother‘s and a father‘s biology. A mother‘s biological relationship with her child is readily apparent; a father‘s is not. Because of this biological fact, I believe it is entirely legitimate for the Act to provide a mechanism for prompt and reliable identification of a child‘s biological father. The Act accomplishes this by requiring an unwed biological father to “initiate[] proceedings in a district court of Utah to establish paternity” and to “file[] notice of the commencement of paternity proceedings . . . with the state registrar of vital statistics.”19 And because the biological mother‘s identity is obvious, while a biological father‘s is not, the Act‘s limitation of these requirements to biological fathers has an exceedingly persuasive fit with the statutory objective of parental identification.
¶154 Similarly, a mother‘s biology requires her to shoulder responsibility for the expenses of pregnancy and child birth; a father‘s biology does not. Based on this legitimate biological difference, the Act provides a mechanism that is substantially related to achieving the important governmental objective of requiring each parent to pay “a fair and reasonable amount of expenses . . . in accordance with his [or her] financial ability.”20 The Act accomplishes this by requiring unwed biological fathers to pay a fair share of such expenses. Again, I find that this requirement is justified by legitimate biological differences and is substantially related to the legislative objective that parents share the financial burden of bringing a child into the
¶155 But once a child is born and his or her parents are identified, I do not believe that biological differences between men and women justify disparate treatment of unwed mothers and unwed fathers. The majority posits that a mother‘s biology allows her to show a commitment to a child by carrying the child to term.22 And because a father‘s biology allows no similar biological manifestation of commitment, the majority accepts the affidavit requirement as a “defensible . . . attempt to put unwed parents on equal footing.”23 Assuming that the legislative objective is to put unwed parents on equal footing, I do not believe that the affidavit requirement substantially advances that objective. Indeed, the affidavit requirement demands a commitment from unwed fathers that goes far beyond what a mother‘s biology necessarily implies about her forward-looking commitment to raise her child.24 While a father is required to swear “that he is fully able and willing to have full custody of the child,” to “set[] forth his plans for care of the child,” and to “agree[] to a court order of child support and the payment of [pregnancy and child birth] expenses,” no such commitment is required of unwed mothers.25 In my view, the affidavit requirement provides something less than an exceedingly persuasive fit with the biological differences of commitment expressed through the gestation and birthing process.
¶156 By carrying her child to term, an unwed mother demonstrates some level of commitment. But that commitment cannot necessarily be interpreted as a forward-looking commitment to raise her child. Indeed, because the affidavit requirement is found in the Utah Adoption Act, it will only be implicated when a biological mother has no commitment to “have full custody of the child,” to develop “plans for care of the child,” or to “agree[] to a court order of child support and payment of [pregnancy and birth] expenses.”26 So while a mother without any forward-looking commitment to her child has standing, a father with an identical level of commitment does not.
¶157 In my view, the fit between the Act‘s objective of securing a specific, forward-looking commitment to raise a child and the affidavit requirement is simply too imprecise to justify the disparate treatment of unmarried biological mothers and unmarried biological fathers. While biology may demonstrate a biological mother‘s commitment to bring a child into the world, it does not necessarily demonstrate a commitment to raise her child. But the Act requires that an unwed biological father unequivocally express his forward-looking commitment to raise his child. In my view, such a disparate advancement of the State‘s stated objective in securing parental commitment is not a close enough fit to withstand intermediate scrutiny.
CONCLUSION
¶158 Because the affidavit requirement of the Utah Adoption Act results in the disparate treatment of unwed fathers and unwed
Notes
Thus, Hibbette v. Baines, 29 So. 80 (Miss. 1900), does not establish a “deeply rooted” historical tradition of respecting the rights of unwed fathers. Infra ¶ 134. Indeed, the father in Hibbette was not unwed but married to the mother of his children, and the case established only his rights to custody upon the death of the children‘s mother in a custody contest with “collateral relatives” (a grandmother and aunts). 29 So. at 81-82. So the “presumption” of a father‘s right to his children recognized in Hibbette says nothing about such a right in a case of an unwed father like this one. And Miss. Univ. for Women, 458 U.S. at 725, 729–30 & n.16 (striking down a nursing school‘s policy of excluding men from admission under both parts of the equal protection test: (1) because the “actual purpose underlying the discriminatory classification” was based on an archaic and overbroad stereotype and (2) “also because,” in any event, the classification was not “substantially and directly related” to the state‘s “proposed” objective).
That showing, moreover, cannot be made by bare citation to Troxel v. Granville, 530 U.S. 57, 65 (2000), which the dissent cites in support of the notion that the interest of parents “in the care, custody, and control of their children is ‘perhaps the oldest of the fundamental liberty interests’ recognized by the United States Supreme Court.” Infra ¶¶ 86, 131 (Nehring, A.C.J., dissenting). The Troxel opinion comes nowhere close to establishing a generalized, fundamental right of an unwed father. Instead, Troxel vindicates only the established right of a mother to trump the visitation rights asserted by grandparents under a state statute granting such rights upon proof that it is in “‘the best interest of the child.‘” Id. at 60 (quoting
An unwed father‘s rights are fully protected under the Adoption Act. A father who steps forward in a timely fashion and submits the required affidavit acquires more than just a seat at the adoption table. He secures the right to assert his interest as a father, and to preclude the planned adoption—regardless of whether the would-be adoptive parent is male, female, or a couple. See