In the Interest of J.W.T.

J.W.T., IN the INTEREST of Minor Child.

No. D-1742.

Supreme Court of Texas.

Feb. 1994.*

Concurring Opinion by Justice Feb.

Hecht 1994.

Dissenting Opinion by Justice

Enoch June

Dissenting Opinion on Motion for

Rehearing by Cornyn Justice

March Davis, Jr., Newton, petitioner. for A.W. Oxford, Beaumont, respondent. for

Tom DOGGETT, Justice, opinion delivered the Court, PHILLIPS,1 which Chief GONZALEZ, HIGHTOWER, Justice, and GAMMAGE, SPECTOR, Justices, join. and 1993 is withdrawn opinion June following is In this case and the substituted. whether, the Texas due we consider under guarantee, course opportunity to be denied an establish rights. paternity claim together Larry living G. While Judy a child later named J.W.T. T. conceived T., Though Randy Judy had married to still planned marry Larry after resolution pending Judy Larry to- her divorce. with a gether arranged prenatal care acknowledging Lar- local clinic in' a contract ry’s paternity. agreement Pursuant to Larry payments several for obstetric made treatment.

Judy Randy and dis- later reconciled missed their divorce action. Before birth, Larry brought under child’s an action alleging Code that he was J.W.T., acknowledging responsi- the father of bility payments, re1 support for child judicial questing declaration recognition rights. After his visitation * not, however, Doggett's join opinion Phillips Editor’s Note: Justice substi- 1. Chief Justice does opinion tuted for the June opinion. court's Note of this Rehearing. withdrawn on Motion was tice Enoch’s corrected Jus- dissenting opinion filed June 1993 stands as delivered. birth, Larry unsuccessfully attempted presumption rebut the marital or to claim maintain contact with J.W.T. Under court parental rights by establishing paternity. his order, parties pa- submitted to scientific biological standing A father has to sue under ternity testing, prob- which a showed 99.41% Family only Code if the child he claims ability Larry biological was J.W.T.’s fa- father, presumed has no Tex.Fam.Code

ther. 11.03(a)(7);2 § only type and the of action he may paternity

Accepting Randy bring Chapter is a suit under the contention of Judy Larry standing lacked under the which is limited to children who have no Family bring any Id.; Code to action relat- presumed § father. 13.- Tex.Fam.Code J.W.T., ing rejected the trial Larry’s 21(a).3 court presumption The marital is irrebutta- assertion of rights and dis- and, in Chapter ble a 13 suit even under missed appeals his claim. The court of re- Chapter may the husband or wife versed, 11.03(a)(7) determining that Section deny paternity the husband’s of a child born Code, Family of the Texas under Lar- during marriage. § their 12- Tex.Fam.Code sue, ry standing was denied violated 06(a).4 guarantee course contained Thus, biological a father of a child with a I, article section 19 of the Texas Constitution. presumed given opportunity father is judgment 815 S.W.2d 863. We affirm the hearing parental before a court to establish appeals. the court of rights only request party; at the of another I. proceedings. he not himself initiate such Randy’s paternity appeal understanding by Critical to this an With of J.W.T. denied is provisions Family himself, of the Judy Randy various of the Texas neither nor remains the putative ability that affect Code legally recognized, “presumed” biological fa- If, parental rights. establish when a child provisions Family ther. Under the of the born, the mother is married to someone oth Code, Larry completely barred as- from father, biological er than the her husband is serting paternity claiming any rela- father, “presumed” to be the child’s actual son, tionship apparent with his natural presumption” may this “marital not be J.W.T. by any party marriage attacked outside the except government entity. Tex.Fam. II. 12.06(a) (Vernon 12.02(a), §§ Supp. Code M.R.M., 1994); In re Relying biological on both his connection (Tex.App. writ [14th Dist.] accept responsibility — Houston with and actions to denied). J.W.T., Larry contends that denial of his violates Code’s provisions operate in

Several of the Code I, of Article 19 of the prevent claiming command section tandem to a man to be a suing child’s either to Texas that: father Constitution May Bring adjudicating parent 11.03. Suit decree him as a Section Who child.... (a) original affecting parent-child An suit added). (Emphasis relationship may brought any by: time Paternity 4.Section 12.06. Denial of alleging biologi- man himself to be (a) any affecting parent-child re- suit presumed a child cal father of who has no lationship, Chapter a suit other than under filing Chapter accordance with father code, this a husband or is entitled wife code, but not otherwise.... deny paternity the child who the husband's added). (Emphasis subject is the of the suit and who was born or parties. during marriage conceived Paternity Voluntary 3. Section 13.21. question paternity this section under (a) denying paternity express a statement of has been exe- must be raised statement If claiming spouse’s pleadings cuted a man to be the the child in the suit, presumed father, regard a child to whether the who has no in the spouse without he, child, petitioner respondent. the mother of the or the child ... or is a added). governmental entity may petition (Emphasis file a for a S.C.V., See, e.g., In re 750 S.W.2d deprived of father. shall be No citizen of this State (Tex.1988) (mother’s child to enforce immu- suit life, liberty, privileges or property, disfranchised, born nities, ex- father of child against biological manner support man). law of the cept by marriage the due course of the to another during her land. standing under granted parties all the Of Larry op-, an provision, seeks Under this Code, alleged biological father’s only an prove paternity5 and to obtain portunity to pre- of a depends the absence standing judicial entitling him to both the declaration 11.03(a); § father. See sumed Tex.Fam.Code obligations “parent.” As rights and the State, standing example, has for 13.01. The Larry appointed a man “parent,” could be obligations against parental to enforce J.W.T., conservator of aging possessory or pre- with a of a child born biological father best inter unless not be J.W.T.’s shown father; pre- it can disestablish sumed 14.01, §§ 14.03. If est. See Tex.Fam.Code introduce evidence paternity, sumed all Larry would be invested with appointed, presumption, and insti- the marital to rebut by the parental rights recognized against the paternity suit Chapter tute Code, except those that the trial 12.06; Attorney § Id. biological father. exclusively court orders are to be exercised Lavan, 833 Texas v. S.W.2d General of Judy, including of the child’s direction (Tex.1992). short, why he Larry asks In management religious training, moral and responsibility for himself a cannot assume estate, access to his services and earn his State, him his imposed on that can be ings, right marriage or to consent to his child, that child’s mother. or military, representa participation in the any legal tion of the child in action. Id. III. 14.04, 12.04, §§ 14.02. Larry’s argument that the Acceptance of paternity A also im- declaration would him provision guarantees due course of law duties, including that of finan-

pose prove paternity would opportunity an support provision for the child of cial time of the highly improbable been food, shelter, care, clothing, medical and edu- Texas Constitution 1876. ratification of our cation, to the mother’s as well as contribution permitted not paternity A suit was expenses. pre- post-natal health care Id. English common at common law.7 Under 13.42, may § These be forced 12.04. duties law, overcoming the an onerous burden upon Larry regardless of whether he at- designed protect presumption was marital tempts any concurrent to exercise consequences of a harsh a child from the may parenthood6 suit be —a an ina- illegitimacy, which included finding of any by a of other brought at time number father or to bility support from the standing to obtain parties whose to sue does interested A could parent.8 child presumed inherit from either depend on the absence of a (Tex.Civ.App. Antonio Procedurally, S.W.2d 41 is unusual in that the this case — San Perez, curiam, n.r.e.), establishing paternity per was v. factual foundation for writ ref'd rev’d Gomez (1973). by court ordered blood tests before confirmed L.Ed.2d 56 determined that the the trial court contrast, Kisthardt, Fatherhood, 8.See, standing. Kay e.g., Mary we contem- father lacked Of showing plate after a at an Fantasy: Legacy a blood test The Michael Families and H. (cit hearing by putative D., father that he has initial v. Gerald Tul.L.Rev. writing. Dawes, (1849)); announced in this met standard ing Debo v. 3 Md.Ch. Earle Veneziah, Rights Illegitimate an J. rah Indeed, him- presumed father relieve Legitimate Situa v. Perez: A Child Post-Gomez tion?, accepted parental any currently of his self of Mary’s L.J. 200-01 St. denying any by successfully obligations time Clark, Relations The Law of Domestic Homer H. Jr.. Chapter under paternity of J.W.T. in a suit his 1988) (2d (citing ed. States in the United adamantly assuming these bur- 12. While now (N.Y.1838); Ely, Allen 19 Wend. 405 v. Moncrief v. dens, escape Randy ready he ever choos- has a if Hunnicutt, 52 S.E.2d 230 N.C. providing a child that is to discontinue es Engler, Doughty 112 Kan. Contra his own. (1923)). 211 P. 619 Kaska, Although action was available no common law Infancy Holy 7. See Home of child, (Tex. F.O.P., illegitimate 1965); certain against of an the father L.G. v. delegitimized spouses’ Though conceding by proof not be harshness “[t]he felt,” if husband long lack of access one another ha[d] this rule been the court went present “within was the four seas” surround- question constitutionality far as to so ing England conception, at the time of unless compel “which statute [would] impotence sterility proven.9 An illegitimate support of an child to it or to evidentiary rule known as Lord Mansfield’s support.” contribute to its an Such Rule, 1777,10 pro- further first articulated enactment hibited either the or the wife from husband probably contrary most held would access, testifying requiring about lack of thus provide provisions such constitutional testimony outside evidence from sources burdens, equality public or would be marriage, difficult to were more arbitrary held to be the exercise of Although by legal widely secure. criticized relation be- power inconsistent with that scholars,11 generally this rule embraced subject state and the which all tween the courts, rejected by in gradually then despotic governments thoroughly rec- century legal the twentieth as the disabilities law, ognize_ for rea- [T]he common illegitimacy with associated diminished.12 policy, to enforce public [a sons of refused Kisthardt, supra See note 8. illegitimate duty support his to recognized in These conventions were justify a offspring]; it would to be difficult 610, Phillips, Lane v. 69 Tex. 6 S.W. personal obli- enforcing imposing a law (1887), in which with this court observed gation upon ground that its en- sole regard offspring to the of an unmarried man performance compel forcement would together woman who had for twelve lived merely duty. of a moral years: “recogniz[ed] natural and Having Id.13 fact, they in while are his children father, to obligation” support, moral recog- rules of the common refuse to law mother, gether the children and their children, impose upon nize them as his to “constituted nevertheless held to have were obligations him the duties family the homestead a as entitled to such avoid, lawful father cannot or to confer exemption.” Id. at 612. upon right support them the and and le- governing in begotten Despite care the harsh rules which the child children gal relationship illegitimate has. wedlock between (1973) procedures brought quasi-criminal 93 S.Ct. 35 L.Ed.2d could be curiam), illegitimate also has a support. supra, (citing (per child now See Helm Clark, Gordon, inheritance, Orders, Courts, right paternal v. Trimble Support the Role Church holz. 1459, 52 L.Ed.2d 31 97 S.Ct. Filius Nullius: A the Common Reassessment (1977), Law, Helmholz, paternity (1977) though has not even the father's 63 VaL.Rev. Bas prior v. death. Dickson been established tardy Litigation England, in 13 Am.J.Le Medieval (Tex.1991). Simpson, An (1969)). 807 S.W.2d procedures were These gal Hist. in however, illegitimate also a to share not, child heritage legal part made wrongful proceeds worker's com of a death or brought country England. Id. at to this pensation of its father. See claim for the death Louisiana, Levyv. Casualty, Weber v. Aetna L.Ed.2d 436 Kisthardt, supra at 589. 9. See note 31 L.Ed.2d 406 U.S. (1972). Inc., Market, v. Maverick Garza Moss, Eng. Goodright Cowp. 10. See 1989) (Tex. v. Edwards and Brown S.W.2d 273 Rep. 1257 (Tex.1988), Co., we re 764 S.W.2d 220 Transfer engraft Wrongful Act the onto Death fused 11. See Michael Governing Grossberg, The Hearth: establishing requirements for onerous somewhat Family Nineteenth-Century in America Family Law and The set forth either the Probate ("Critics the doctrine had attacked Codes. barring spousal testimony on sexual access days of the inconsistent and unfair from the first republic.... statute, court very which this kind Wigmore [the John ... condemned thought probably is to- unconstitutional unwise...."). absurd and rule] as mainstay day in the efforts to reduce state’s support obli- enforcing welfare rolls child against irresponsible parents. TexHum. support gations to the financial 12. In addition Perez, father, §§ from the Res.Code 76.001-008. Gomez father, attempts preserve fathers, true court nonetheless conferred was the the mother’s husband the obli- the fiction that right upon a father who assumed necessarily protected the longer link of the gations parenthood. This parenthood is responsibilities of interest: rights and child’s best family developments. reflected recent bearing direct- exclude evidence Rules that ought not to be determined ly on the truth IV. very good cause- without to survive century changes in Significant twentieth the Rule is have said that Some courts affecting the the resolution of issues protection child. required statutes, demographics, alter are reflected consequence. may may or be its This illegitimate attitudes ation of social toward harmful to the interest It children, and decisions of the Texas courts. child. of the Texas With the enactment Id. at 607. statutorily af Code method was Davis, however, pre marital Under pa putative father to establish his forded delegitimization to bar sumption continued voluntarily. Knisely Paul & ternity testimony regarding non-access or absent Paternity Spivey, Broadus Determinations living together as sterility. If married and Chapter Five Years in Texas: Under wife, spouse rebut neither could husband and Code, 465, Family the Texas 20 S.Tex.L.J. with scien presumption, marital even (1979). Adoption in an involun 1975 of paternity. See tific evidence of another’s action, tary paternity others could which Clark, (Tex.App.— Clark v. S.W.2d upon duties fa enforce writ); 1982, Magana no v. Ma Fort Worth thers, finally illegitimate secured the (Tex.Civ.App. Corpus gana, 576 S.W.2d 131 paternal support, as man children to obtain — writ). 1978, no Not until 1983 was Christi Perez, 535, v. dated Gomez statutorily per husband/presumed father (1973).14 872, Er See mitted, Family of the under Section 12.06 Smith, Illegitimate nest E. Children and Code, deny a child born to his paternity 2, Fathers: Some Problems with Title Their marriage, and to seek during wife their 613, (1974); History 5 Tex.Tech.L.Rev. pa testing disprove court-ordered blood Code, Family the Texas 5 Tex.Tech. 1, 1983, Leg., Sept. 68th ternity. Act of See (1974). 267, statutory The new L.Rev. 7, R.S., 424, § 1983 Tex.Gen.Laws 2355. ch. however, paternity applied, only action with 1987, accorded the the same was regard an unwed to those children born to 18, 1987, Leg., 70th wife. See Act of June mother, presumption the marital was R.S., § ch. 1987 Tex.Gen.Laws without mechanism for its rebut codified 12.02, § tal. See Act of June 63rd limitation on at- Though now considered a R.S., Leg., ch. 1973 Tex.Gen.Laws 1420. presumed paternity,15 tempts to disestablish statutorily initially deemed “the de- paternity Section 12.06 was After suits became available, nearly presump- prior recog- of the irrebuttable this court overruled its struction and hailed as “en- legitimacy,” tion of Mansfield’s Rule. Davis nition of Lord (Tex.1975). Davis, supreme arbiter” of throning] science as the Because 521 S.W.2d Sampson, Par- paternity. Title 2. rights vis-a-vis the John J. illegitimate child had Rule, spouses denying represents major barred both from of the de 14. This decision one testimony required ille velopments paternity in the evolution of the of outsiders Knisely gitimate Compare See Paul & Broadus presumption legitimacy. children. to rebut the Paternity Spivey, Texas: Five Determinations in (Tex.App S.W.2d 779 In re . —Hous Code, Family Chapter under the Texas Years denied) with Pinkard writ [14th Dist.] ton (1979). Today, all states L.J. 20 S. Tex. Pinkard, (Tex.Civ.App S.W. 265 . —Beau compelling provide fathers to some method for writ). now Section 12.06 has mont supra support illegitimate their children. Clark, deny permit the State to been amended to note at 174-75. paternity. presumed Act of June R.S., § Leg., 1993 Tex. ch. 73rd 12.06, permitted which had 15. Section Gen.Laws deny presumed father’s husband and wife to paternity, the converse of Lord Mansfield’s Child, physiology changed, Human has not ent and 1986 Code Symposium, understanding 17 Tex.Tech.L.Rev. 1151 our of it has. Current meth- (1986). provide Permitting testing the scientific truth about ods of scientific more reliable govern legal determining pa- and less means of relations be- intrusive Family Code, ternity. people affected Under the current tween the real court rul- mother, required certainty alleged court is to order ings promoted stability: father, to scientifically to submit child broached, subject has been [0]nce accepted paternity testing that excludes at only way parties that the will ever function population least 99% male reasonably on a civilized basis is to settle possibility parentage. Tex.Fam.Code once and for all whether the husband in (Vernon Supp.1994). § And 13.02 advances deed is the father of child. After genetic can testing techniques accommo- question, has arisen on that doubt Margery this requirement. date W. compliance support chance child Kass, Illegitimacy, & Miriam Shaw Child orders, the establishment of a reasonable Testing, 13 Support, Paternity Hous. relationship parent-child to-be between the L.Rev. child, ex-husband and the and all the other aspects of the relationship innumerable V. contingent knowledge on the man’s adaptability recognized We have suspicion. regarding truth changes gov- fundamental such of our state’s erning strength considerable and found organic command. nature of its Dav- others, parents separate, Married live with 4,19 Garcia, (Tex.1992, enport v. divorce, remarry each other. —sometimes orig. proceeding). quarter of the More than one children mothers, country unmarried are born to claim, asserting In course of a due divorce, prevalence great- of with the an even Larry interest is con must that his establish proportion er of children live households stitutionally County protected. Tarrant See parents which one or both of their natural (Tex.1982) Ashmore, 417, 422 v. 635 S.W.2d are absent. See Statistical Abstract to (extending protection interest due course These United States Rog also position); of official in elected part trends remain a of the social structure Reagan, v. ers Texas Commerce Bank — judicial system operates.16 within which our curiam) (Tex.1988) (depriva (per S.W.2d 83 I, hearing rights violates art. tion of without Family longer employs no The Texas Code 19); Trading Corp. § v. Texas Kramer “illegitimacy.” Sept. See the term Act of (Tex.App.— Lyons, 740 S.W.2d R.S., Leg., ch. 71st 1989 Tex.Gen. writ) (protecting no Houston [1st Dist.] (adopting no Laws 1477-87 “child who has 19). I, § under art. presumed replace “illegit father” the term Code). decisions, previous In have accorded throughout Family we imate child” great respect biological bond between require legitimation for the Nor do we Code Spratlan, Wiley v. seeking recovery parent a child In prerequisite as a child. (Tex.1976), recognized we natural v. S.W.2d the loss of a father. Garza (Tex. Market, Inc., right which exists between “[t]he that natural Maverick 1989). one of constitu parents and children is their not, 11.03(c). non-parents statutorily te Section These are these interests have been Some of however, protected. person duty support. "a who has had actual subject As See Mata to a possession Moreno, and control of child for at least six (Tex.Civ.App.— v. 601 S.W.2d filing immediately preceding the months writ); v. [1st no Blalock Dist.] Houston pre petition,” stepparent, disestablished Blalock, (Tex.Civ.App. 559 S.W.2d 442 — Houston father, standing now has to sue under sumed 1977, writ). generally Brenda [14th Dist.] 11.03(a)(8), grandparent and "a or other Section Runner, Rights Protecting Parental J. a Husband’s person deemed the court to have had substan Presumption Legit Disputes WhenHis the (1989). Wife past with the child sufficient to war tial rant contact imacy, 28 J.Fam.L. 115 standing” may pursuant intervene in a suit Smith, who the father mitment to the tional dimensions.” Accord Holick G.M., (Tex.1985); so. 20-21 In re has not done 685 S.W.2d (Tex.1980). Similarly, 596 S.W.2d on the father’s commitment emphasis This (Tex. Cavanaugh, 391 S.W.2d Gunn that parental duties consistent 1965), that we declared process provision under the reached Adop- Constitution. See re the Louisiana high rights parent of the natural are of (La.1990). B.G.S., 556 So.2d 545 tion importance process properly and due re- There, explained the court to show quires proof burden of upon rights forfeiture of rests does not interest [t]his [constitutional] challenges rights]. lost, those howev- [whomever into existence or is soon come er, if the father unable to demonstrate tempered have nonetheless these deci- We respon- to the that he is fit committed by recognizing rights of natu- sions that the Moreover, parenthood. he sibilities of absolute; parents protection are not ral he has concrete ac- must show that taken paramount. the child is See id. grasp opportunity to be tions to fit parenthood accorded to those him potential there is father and that accept accompanying responsibilities. to the to make a valuable contribution 14.03(d) See, (parental e.g., § Tex.Fam.Code development. Consequently, child’s may be would visitation refused when such link biological of a mere existence physical “endanger the welfare or emotional inter- will not sustain the father’s fitness child”). est; preserved it is defeasible if not dedicated, opportune fatherly action. procedural To determine extent of Id. at 550.19 entitled, rights to which father is interest, permit proof of such an public pro To must consider the interest in we sought hearing fair ensure a tecting along child con courts with the father’s in In putative father. As we concluded to a establishing interest a relation stitutional K: re ship with his child. In a situation such presented here fa where illegitimate child biological father ther does assert his interest17 near the time opportunity prove which cate- [has] birth,18 standing of the child’s is constitution accept- [accepting commitment or not gory 1) ally acknowledges if he mandated both he responsibility for in which ing child] responsibility support for child or other care not be and to show that he should falls 2) maintenance, and and and makes serious differently legally fathers treated relationship efforts to continuous establish children. committed to the mothers of their K, 168, the child. In In re

with 535 S.W.2d sought and re- putative [the father] Thus (Tex.1976), of a presence 171 we noted the hearing. fair ceived a Similarly, Rogers in v. [genuine public] securing at 171. interest in stable 535 S.W.2d children, 881, (Tex.App.— supportive Lowry, for 546 S.W.2d 884 homes and families 1977, orig. proceeding), distinguishing] Dist.] the father Houston [1st between [in] biological that: child’s accepted legal “[A] moral com- the court held who has and biological asserting delay by qualifiedly recognizes an father in Enoch such 18. A 17.Justice interest, only biological if the father has rights long after the child has estab- relationship actually with a child. established relationship presumed father lished a (Enoch, J., dissenting). n. 5. S.W.2d at 202 872 certainly in a trial court should consider factor very difficulty with this view is that the balancing interests. these today statutory provisions en- that we consider entirely this relation- able the mother obstruct biological were process of a father Due ship. S., Kelsey 1 recognized Adoption Inin re also preeminent Gender is consideration 816, 615, Cal.Rptr.2d P.2d 1216 4 823 Cal. 4th (1992); Cornyn. While an adul- he would accord Justice 636, R., Cal. Lisa 13 Cal.3d 119 In re rights to woman absolute terous married near 475, Slawek child, Rptr. P.2d 123 see also 532 male he believes that her adulterous her 295, Stroh, any rights.” at Wis.2d 215 N.W.2d 9 partner "has few if 872 S.W.2d v. 62 J., (Cornyn, dissenting). 213 196 Notwithstanding in at

father has a substantial interest 2339-40. both his such S.Ct. process biological participation re and [adoption] proceeding that fatherhood due rearing daughter, Michael H. was found quires opportu he an be afforded notice and C.D.V., plurality by possess a four-member no nity to be also 589 heard.” See In re deserving protection,21 543, interest constitutional (Tex.Civ.App. n. 3 — Amarillo (to recognition by 1979, writ) despite five mem other process implica avoid due holding that this tions, bers Court22 was preferable adoption provide notice father). apparent recent application conflict with proceedings biological While federal Process Due clause to recognized importance these cases (Ste 133, Id. fathers. at S.Ct. at 2347 illegiti providing to fathers of due vens, J., 142, concurring); at at id. 109 S.Ct. children, right to mate we conclude that the (Brennan, J., dissenting); id. at 158-59 merely be heard does not cease because the 129, (White, at at 2360-61 S.Ct. at 2345 mother is married. J., Illinois, dissenting) Stanley (citing jurisprudence may While federal be useful S.Ct. L.Ed.2d in understanding our state Mohammed, (1972)); Caban v. 441 U.S. guarantees, Davenport, see 834 S.W.2d (1979)); 99 S.Ct. 60 L.Ed.2d 297 help presented question on the here is Note, Rebutting Presump also the Marital by sharp present limited in the divisions Test, Relationship A 88 Co Developed tion: Larry’s consideration of a claim similar to (predicting, prior lum.L.Rev. D., Michael H. v. Gerald 491 U.S. H., creating to Michael that a statute an (1989).20 L.Ed.2d 91 S.Ct. Michael presumption irrebuttable would violate H., father, putative challenged the con process rights putative fa federal due of a presumption by clusive created California ther). cohabiting statute that a man with his wife was, consequently, was the father a child born H. considered Michael during marriage. plurality’s departure” Id. an aberration —“the actually opinions might protect- constitutionally 20. There were five in this 4-1-4 have a ever opinion split plurality by relationship decision: A Justice Sca ed interest in his with a child whose lia, with, joined entirety by cohabiting an- in its Chief Justice Rehn mother married to conception quist part by man at Justices and Ken other the time of child’s O’Connor nedy; by and birth.” 491 U.S. at separate concurrence Justices O’Con- J., (Stevens, concurring). Stevens Kennedy; by Justice nor vens; a concurrence Justice Ste Brennan, deciding purpose ”assume[d] [the] for the separate by dissents Justice Blackmun, relationship daugh- by case” that Michael’s with his joined Justices Marshall and White, e process protection, noting ter deserved joined Justice Brennan. Se Justice cases, Illinois, Stanley recent such as id. (1972), and Mohammed, Caban v. parenthood 21. Rather ask whether than (1979), L.Ed.2d 297 "demonstrate recogni- traditionally interest that received relationships develop enduring ’family’ Scalia, protection, tion Justice as author of settings." He found unconventional nevertheless plurality, support assessed historical safeguard in Cali- for Michael’s interest sufficient "the natural father of a child con- statutory trial court fornia’s authorization for within, into, ceived and born extant an marital allowing anyone in discretion in with an interest union Id. at that wishes embrace the child.” gain rights. a child to visitation Id. at 127, 109 at 2344. Two the Justices of four Kisthardt, supra at S.Ct. at note 2347. See however, joining opinion, separately to his wrote compa- Family The no Code affords disapprove portion of that of the decision and to 11.03(c) right. permits person rable Section point inconsistency interpretive out the its by "deemed court to have had substantial employed prior method in decisions under past to warrant contact with the child sufficient Due See id. 109 S.Ct. at Process Clause. standing," a suit filed of intervention in (O’Connor JJ., concurring); Kennedy, and by someone to sue under subsections authorized Note, also Michael H. D.: The v. Gerald 11.03(a) (b); by exclude its terms this would Rights Fathers and a Constitutional Putative though putative Even the tenuous father. Proposal Reform, 31 B.C. L. Rev at 1201. judgment produced in Michael H. coalition might well case differ- have decided instant upheld disputed sug- 22. The California was ently Cornyn statute than and Enoch now Justices plu- gest, speculating because Stevens concurred with the re- Justice another would how court rality, despite disagreement hardly Sca- his with Justice this of our solve matter is determinative "rejection] possibility [of] lia’s that a natural decision. from marital unit protects the by Code previous from federal decisional law— the child protects and Adoption by outsiders Supreme Court in re intrusion Louisiana legiti- B.G.S., has a n. and is The State delegitimation. 556 So.2d at 549-50 disrup- minimizing Brennan’s familial perhaps best described Justice interest mate child. But dissent: to the are harmful tions that observed, marital appeals surrounding today’s de- the court of atmosphere Larry ever Beginning clearly disrupted before unit cision is one of make-believe. suggestion con- with the that the situation filed this suit: repeat itself ev- fronting us here does not mother, for whatever [t]hat every country, ery day in corner of the reason, engage in sexual chosen to has moving the claim that it is tradition on to proof itself marriage is outside of relations supplies the details of the liber- alone that solemnity “integrity and protects, pass- and ty that the Constitution damaged at least been unit” has finally ing to the notion that of these difficul- degree. [Resolution some always recognized cramped vision of not, we does wife] the husband ties family,” today’s decision lets stand “the feel, perpetuate to the state to give license Michael— pronouncement that California’s paternity” so myth “presumption of percent to a 98 whom blood tests show biological father of deprive the as to probability to be Victoria’s father —is being to exercise able least a chance and if the Court Victoria’s father. When duties, respon- rights, privileges, those reality, very awakes to it will find a world all civilized societies sibilities that expects. from the one it different fundamentally ingrained recognized to be H., 109 S.Ct. at Michael U.S. parenthood. concept (Brennan, J., dissenting); In re see also 815 S.W.2d at 869. S., 816, 4 Adoption Kelsey Cal. Cal.4th had merit Perhaps this asserted interest (Cal. 615, 627, Rptr.2d P.2d the true an earlier era when 1992) (stating “we must not read too much certainty established with near could not be H.,” relying on that ease into Michael illegitimacy significant carried when justices proposition recog for the five legal stigma. Since this is and social interest). liberty It nized unwed father’s case,24 should more longer the the focus wholly under our Texas due course of law toward is best for properly be directed what vitality, guarantee, independent which has may be in best interest of the the child—it separate and distinct from the due development relationship child to allow of a clause of the Fourteenth Amendment to the may not.25 with the natural father and Constitution,23 today’s that we reach alternative offered The effect of the decision. dissenting justices is to leave this determina- VI, tion of the child’s best interest and the defini- itself, family, exclusively biolog- Judy Larry’s tion of to the Randy insist that They protecting ical In the name of statutorily heard be denied. mother. that, grant rights to argue by prohibiting alleged biologi- family, Justice Enoch would permitted by asserting paternity, putative cal father from fathers who had been recognized City Mesquite plays stigmatizing role it 23. As Aladdin’s burdensome Inc., Castle, H., once did.” Michael 491 U.S. at (1982): language (Brennan, J., ”[T]he dissenting). S.Ct. at 2351 provision [due course] the Texas from, arguably significantly different broad- Family “parent” 25.Status as a under the Code than, language corresponding er the of the feder- guarantee relationship not a with the child. does provisions.” al may if The trial court refuse to award visitation parental possession “it finds that or access is not original pre- 24. for the ”[T]he reasons conclusive parental in the interest of the child and that best sumption paternity place of are out of in a world possession endanger physi- or would the access prove virtually beyond in which blood tests can a particular cal or emotional welfare of the of a doubt who sired a child.” shadow and in which the fact of child TexFam 14.03(d). illegitimacy longer § no Code 12.06(a) 03(a)(7)- develop the mother to a relationship with the they to the extent that child but not op- wholly to those not that deny putative afforded standing portunity. (Enoch, at 202 n. S.W.2d sue regard pre- with to a child who has a J., dissenting). father, prevent sumed bringing the of any affecting parent-child suit relation- Enoch, Larry only To strang- Justice is “a ship presumption paternity may of marriage er to the into which the child is be rebutted.27 born,” despite having id. lived with during marriage, the mother as well as The judgment appeals of the court of is mutual arrangements prenatal their for care. and this cause is remanded to the affirmed relationship morally judged, This is rather proceedings trial further court for consistent legally being than judged, dismissed as a opinion. with this “dalliance,” mere n. id. at 200 without why explaining rights accorded to one

participant in relationship their should over- HECHT, Justice, concurring. whelm those of the other. The father is a Feb. [Filed 1994] “stranger,” if any relevancy that term has issue, only statutory this far as the so I agree with the that a father’s traditionally deprived has him of rights. child is fundamental an interest his so aspect liberty of individual that cannot be say We do that our Constitution except by by denied due course of State guarantees every natural father his ties with law, I, by of guaranteed article section 19 as illegitimate say offspring.26 We do that one It to me al- Texas Constitution. seems arbitrarily prevented who attempting is from society most in a the State any intuitive that free relationship to establish with natural his child, deny cannot a man all to his child early unqualified making after ac I ceptance parental process, of should Larry as has without due duties done, thought dispute”, for principle is this “too clear denied due course of law under D, Rights. section 19 of our Bill of H. Those Michael v. Gerald (Bren- provisions Family Code that Lar bar nan, J., dissenting ry’s pursuit parental rights dissenting), his violate our guarantee opinions dispel the every that Texan in this case. To doubt We, they parenthood is a constitu- shall be accorded due course law. whether raise therefore, interest, tionally hold 11.- the authorities on protected unconstitutional Section prior Cornyn expresses is the termination 26. Justice concern that four entitled to notice adop- parental prerequisite adoption agencies rights to a valid believe "under this —a if, 15.023; 11.09(a)(8); §§ 16.03. But impediment tion. Id. court's decision there is no to a notice, alleged receiving father fails to paternity, after respond putative asserting parental rights father filing an admission adopted.” who has child been parental provides specifically Code that his point single 221. Yet this was raised in a involuntarily order to com- terminated in brief, question amicus a rhetorical about short Noncompli- § plete adoption. Id. 15.023. appeals: the decision the court certainly ap- provisions ance would with these invalidated, statutory If the current scheme requirement pear set forth inconsistent alleged biological prevent an then what is to demonstrate here relinquished purported father who has adop- An prompt assumption of duties. coming parental rights chal- forward to any attacked may not in event be tion decree legal relationship adop- lenge between an years entered. more after it is than two adoptive child and to dis- tive father and his § 16.12. adoptive family? rupt sanctity period Such this motion During the extended pending, writ- rehearing invalida- while the is the effect the Beaumont court's has been being adoption Family ings prepared, Code’s restrictions on tion of the Texas others were entity suggest- person has rebutting presumption. agency any other added). envi- of the horrors (emphasis ed to Court that reality. Cornyn comport with Code indicates sioned Justice An examination jeopardize adop- does not that our decision holding contrary disapprove adoption petition process. We therefore Once an tion Jack, (Tex.App 796 S.W.2d 543 prohibited. granted, paternity Jack v. suit been . —Dal Tex. writ). probable las alleged § father or 13.44. An Fam Code biological father a presumed father. When this interest the Court relies to find help sup- to acknowledges responsibility his persuasive. than are more every reasonable port and has made the child not as a rule past, In the the law did relationship a with to establish effort man right.of parenthood in a recognize the in child, to assert his interest he is entitled child of a claimed to be the father of the who child, notwithstanding opposition me, reason, The it seems to married woman. her husband. the mother and recently impossi- merely that until it was to validity of such claims ble to determine however, not, necessarily to entitled He is degree. in any acceptable Advancements agree I with the prevail in his assertion. predict, technology which can often medical rights a bio- determining what that in certainty, whether a man’s claim almost to child, in his the best logical father to valid remove that hindrance is I must be considered. of the child interest parenthood. The acknowledging implication in the agree do not not, course, A father right is absolute. really only implica- opinion is Court’s —it cannot assert his interest if he has obtained interest nothing more —that the best tion and force, is, by by by rape, fraud or it only, always para- of the child is are wrongdoing. other Such circumstances mount, The interests consideration. governed by ancient maxim: nullus com- preserving their husband in mother and her ca/perepotest injuria propria. modum de sua biological father family unit exclusive of Also, by can the interest be terminated biological father’s equal dignity to the voluntarily, adoption, father as in the case of equal consideration. interest and entitled against involuntarily, as when the father especially important when interests are Such adjudicated knowingly to have endan- he is For of the child is unclear. the best interest wellbeing. gered the child’s would appears that a child example, when biological Acknowledging the of a biological father as well or better with his do pre- circumstances does not such husband, should his mother and her as with rights. I equal clude the existence of other if allowed visitation biological father be thought should have it manifest in the child’s life presence continued deeply “sanctity family ... is [so] stability certainly imperil the almost would tradition”, history rooted in this Nation’s suspect marriage? I this situa- the mother’s 124,109 (Scalia, J., plural- at 2342 id. how commonplace, and I cannot see tion is ity), that the interests of its members interest of the child consideration of the best constitutionally preserving unity its are also supplies the solution. alone Any upon protected. doubt cast the exis- family inter- not exclude The Court does by tence of interests the Court’s failure such determining what from consideration ests dispelled acknowledge completely them is father. rights should be awarded by authorities cited Justice Enoch. can that such interests presume I therefore Thus, constitution- it seems to me that two fully With this and should be considered. ally protected this interests are involved judgment of understanding, I concur in the parenthood preservation of the case— the Court. they are in conflict. The State —and by denying to resolve conflict chosen ENOCH, Justice, dissenting. who has a biological father of child 30, 1993] June [Filed any standing to assert his presumed father circumstances, not whether a question in this case is the fami- The In all such interest. alleges himself to be the I man who paramount made statute. ly interest is marriage of during the no father of a child born that the State has agree with the Court another man will be entitled deny every the mother to purpose reason or sufficient question parental rights to the child. right to his inter- biological father the assert marriage1 has stranger to this a whether this simply because there is est in a child briefly separated from when she had Larry the mother suggests G. is not The Court certainly stranger Larry marriage he lived with her husband. stranger because deprive any him of 11.03 did not constitutionally that enti- section protected interest a remedy. Accordingly, procedural existing petition in the first challenge him tles only question putative is whether a bio paternity of a child born into for instance marriage stranger a to a logical father who is marriage, despite the fact that neither that constitutionally protected a created father, mother, nor the presumed petition paterni for challenge interest disputed presumed child have marriage. a ty a child born into holding, the con- paternity. In so Court 11.03(a)(7) 12.06(a) cludes that sections by recog- in relied on the Court The cases Code, Family which do not Texas of the in constitutionally protected interest nizing a petition pater- permit putative a father to putative biological father are not of a favor unwed, violate nity the mother is not where by of the cases cited applicable. None guarantee of the the due course of strang- in which a involved a situation Court I, § 19. Un- Constitution. Tex.Const.ART. sought right to chal- marriage er to a procedural guise of due der the denial a born lenge paternity of child and establish law, creating in a fact course of Court parties to marriage when neither the into the law interest due course of substantive disputing the child were marriage nor biological father to chal- putative favor of an child. paternity of the rights in obtain lenge paternity and decision, the Court also reaching its marital derogation of the of the hold- rejects Supreme Court a United States illegiti- claims of protect its children from H. In Michael v. Ger- ing directly point. action, I can- macy by outsiders. With this D., 109 S.Ct. ald 491 U.S. agree. I dissent. (1989), Supreme Court held L.Ed.2d 91 not de- biological father was pa putative a claims that putative biological A father who a state any process prived of due who is also a rights to a child and rental petitioning prevented him from marriage into which the child statute stranger to the into law, of a child born paternity statuto to establish his a common born does not have Michael marriage. dismisses protected a The Court that is ry, or constitutional interest at 196. law, 872 S.W.2d H. an “aberration.”2 At common by the Texas Constitution. simply H. reflects contrary, Michael bring an To the biological father could not putative parental-related all Holy that not determination paternity. See Home action for (Tex.1965); stature and Kasha, given the same rights are to be Infancy v. 397 S.W.2d (Tex.Civ. F.O.P., import, a distinction constitutional v. L.G. n.r.e.), example, recognize. For fails to writ ref'd Court Antonio App. — San rev’d, Illinois, 92 S.Ct. Perez, curiam, Stanley v. per Gomez (1972), United L.Ed.2d 551 A L.Ed.2d 56 Supreme afforded only Court those States biological father has putative protection to Family recognition and Code. the Texas rights conferred had “sired and biological father who putative provides Code 11.03 Section wedlock. out of born may bring a raised” his children biological father putative that a There, unconstitu- Supreme held Court a child who to establish suit automatically placed chil- father, tional a statute not otherwise. presumed has no 11.03(a)(7). upon the death the state dren as wards of § Because Ann. Tex.Fam.Code hearing of mother without right at their unwed had no biological father putative proof of ne- father or the unwed pater fitness of an action for law to maintain common 1216. The circumstances, glect. 405 U.S. the enactment of nity issues, another relies on the Court Constitutional plain simple that he is marriage sense in the decision, Lariy marriage. Caban party The fact to the United States not may Judy does Mohammed, four months lived with n. stranger Larry any to the mar- less a (1979), make sup- 60 L.Ed.2d 1766 n. ruling today a dalli- raises riage. Court’s recognition state’s Constitu- port under our its constitutionally protected interest. ance to a constitutionally protected interest tion of a this case. putative favor rejects Mi- that the Court In the same breath dispositive on state authoritative or chael H. as man, and had a woman and another natural father who lived with and raised between deprived he has consequently, the that not been children claimed the statute violated 11.03(a)(7) by and process rights. Although due course of law sections discussed 12.06(a) of the Code. right in of the individual Mr. terms Stan- ley, protected Stanley clear- the interest in is constitutionally Larry Even if G. has a ly an in preserving integrity interest of the interest, pow- cognizable ignores the a Court family unit.3 Id. at at 1212. 92 S.Ct. interest, countervailing family’s the erful protected Stanley is far dif- interest right free from unwanted interference to be by puta- the interest ferent from claimed by attempts disruption state sanctioned and biological challenges pa- tive father who the marriage.4 the of a delegitimize to children ternity marriage of a child born into Cleveland, City East See Moore and, actuality, eyes who in the of the is law U.S. marriage a stranger to the and to the child. detailing history of (recognizing and sanctity protection for of fami- constitutional Although by is the this Court not bound ly compel- unwanted absent from intrusion Supreme decisions of the United States interest). ling Stanley, supra, In the state construing Court in the of law due course Supreme held that a United States Constitution, provision of the Texas I find putative biological father’s interest warrant- the of the decisions United States process protection powerful ed due “absent a Court, H., particular, and in Michael instruc countervailing Stanley, 405 Jack, interest.” persuasive. tive and See also Jack Contrary at 1212. to Stan- (Tex.App. S.W.2d — Dallas writ). ley, Stanley’s in which individual interest assuming Even our due course preservation family, synonymous with provision protects is broader inter family powerful the interest this case is protected ests the Due Process Clause interest; countervailing interest which an Constitution, of the United States I find promotes relationship, preserves marital the nothing jurisprudence in the of this State to protects existing family from intact and suggest traditionally that Texas has protect disruption and external interference recognized ed and the interests of an adulter confusion, forces, protects from the child putative ous father to establish and obtain affection, stigma illegitimacy. and the torn rights objection over the Moore, 431 U.S. at presumed mother and father and to the dero X, Y, Z, A v. 641 P.2d 1935-36. See gation family’s right protect of the marital to Respon- (Wyo.1982); F. v. Petitioner illegitimacy by its from claims children (Del.1980). R., A.2d dent Accordingly, I outsiders. would conclude father, G., Larry putative the biological failing recognize significant coun- In to pro does not have constitutional interest tervailing of the fami- constitutional interests I, ly tected under Article section 19 of from interference and to be free unwanted to challenge petition by strangers, Texas Constitution rendered attack the Court has paternity marriage biological peti- putative child born into a father’s H., putative plurality specifically Michael noted of the mother's affair with the because sanctity Stanley upon and Caban biological couple separated rested when the had traditionally relationships accorded to that devel- moralistic and filed for divorce. The Court's op unitary family. within the 491 U.S. at point, judgment inappropriate, but more to the 109 S.Ct. at 2341. presented Larry question will is not whether custody parental rights (e.g., win his claim to visitation), generally family 4. The Court dismisses the unit's question he has the is whether protecting interest in its children claims of challenge paternity in the first instance. paternity because outsiders can be determined ques- case The facts of this are irrelevant to certainty testing. greater through scientific they developed rec- for the tion because at 197. I would not consider challenge permitted after the ord until testing accuracy of scientific the basis ei- to be event, case, mother and made. In this diminishing family’s pro- ther interests or child’s presumed father before the moting putative the birth, reconciled together proportion. as a mar- have continued to live couple, family and have embraced and raised specifically ried The Court dismisses protection marriage entitlement their as their own. unit’s of its interest children born of superior Respectfully, I dissent. Aware of the tion for absolute family. give constitu- any rights of the To posed by monumental social crisis broken stranger, of a weight tional to the interests nation, legisla- families in our state and father, without putative albeit the protect rationally ture could have chosen to family and the regard to the interests of family any right that the the marital over invite protecting would state might biologi- confer on a Texas Constitution only by persons purpose whose is to actions law, Elevating cal father. its will over the satisfy jealous up family to break policy its own social the court has substituted revengeful feeling.5 Where a child is born preferences people’s legiti- of the for those contradictory in- marriage, into a there are putative biological father terests between the representatives. mate family. The state cannot afford both and the rights granted by identifying In new family biological and the putative father relies, clause, the court on the due course provisions absolute interests. Code, given pref- Family has Texas the state “adaptability” the Texas Constitution to the interests of the to be erence to important, changes rather social it deems disruptive interfer- from unwanted and free interpretive than methods. our traditional ence. adapta- This form of 194. S.W.2d sought the nature of the interest Because permits constitutional amendment via tion in favor of protected by the Court to be courtroom, method than the usual rather reality a biological fathers is in sub- putative in Texas—the adaptation of constitutional process rather than a due interest stantive States Consti- ballot box. Unlike the United process right, the interest is procedural due tution, only eigh- amended which has been 11.03(a)(7) 12.- not absolute. Sections Rights was rati- the Bill of teen times since 06(a) impinge putative on a do not the Texas Constitution fied if process due interest father’s substantive 1876 and 1993. between rationally legitimate to a amended 338 times they are related I, Morning § com- News, state interest.6 Tex.Const.Art. Almanac The Dallas legislature’s mentary. I hold that the would 1993). (Mike ed., 1994-95, Kingston family are for the interests of the preference adapt no reluctance Texans have shown interest rationally related to the state’s changed circum- their constitution when interests of the protecting promoting people actively If the require. stances so family unit and that existing marriage and living docu- as a maintain their constitution 12.06(a) 11.03(a)(7) of the Texas sections ment, even more reason court has then this course of violate the due Code do not Supreme Court than the United States the Texas Constitution. guarantee vague notions of circumspect about remain judgment of the court I reverse would through judicial “adaptation” constitutional judg- affirm the trial court appeals and resort in of last Texas’s court opinions. As ment. matters, power of our we must exercise civil ON MOTION DISSENTING OPINION in- principled to a according judicial review REHEARING FOR the court to framework. Were terpretive at judge the statutes Justice, CORNYN, precedent dissenting. follow stan- constitutional under established issue 30, 1994] March [Filed The dards, would be sustained. the statutes September dissenting opinion of however, a cen- court, disregards more than Tex.Sup.Ct.J. is withdrawn of what in favor decisions tury its own place. in its following is substituted case, Where, putative has father Wietzikoski, as in this See, S.W.2d e.g., Henderson (On child, denied) rela- ap- relationship with the (Tex.App. writ —Waco error, give demon- the record plication writ of insufficient for child alone is tionship to the years putative waited four strated that interest. See constitutional a fundamental rise to sought to he child before after the birth at 1215-16. Stanley, the mother paternity and after establish affair). called off moment, emerging a doctrine that “newly has divined to be social least goals.”1 than subject sharp criticism for more been century use of which has been and the rehearing While motion for of this late 1930’s.2 dramatically curtailed since the pending, dissenting opin- cause was I wrote a en- process is no means (1) Substantive due calling court’s ion attention to the failure jurisprudence. As CHIEF trenched in our to follow its own standards constitutional observed, recently interpretation, Tex.Sup.Ct.J. PHILLIPS has JUSTICE (2) noting suspect “adapta- nature of its due under viability of substantive analysis, bility” calling id. at provision of Texas Consti- the due course process, States, applying restraint substantive Lucas v. tution is United doubtful. 1281-82,1285-86. If the court id. insisted (Tex.1988) (Phillips, 711-14 our ignoring established framework of dissenting). C.J. 1282,1286-87,1 analysis, id. urged the court at least to establish some I. of Judicial Review The Power analytic framework. Id. at 1277- alternative Republic Texas The architects of the of 78, 1286. self-gover- sought to their preserve opinion But the court’s on motion for re- liberty by limiting the nance and individual hearing virtually original, to the is identical in a constitu- powers government of written reaches the without and same result address- preamble They in the to the tion. declared any objections. ing of those If this case Rights in the Declaration of 1836 Constitu- represents nothing more than announce- tion: judges they can ment seven decide any guiding prin- without cases reference guard against trans- And in order ciple, precedential then it has no value be- gression high powers have of the which we precedent judges cause that frees fol- from in delegated, everything declare that we lowing precedent need not itself be followed. contained, every rights this bill of and only hope I can that this case is an aberra- hereby delegated is re- other tion, and that future cases the court will people. served to the analytic return to the framework it has em- 1876, The Constitution of our fundamental ployed past. in the For as Justices O’Con- today, principle: po- maintains this “All nor, Kennedy recently and Souter writ- power people, litical inherent and all is ten, “Liberty refuge in a jurispru- finds no governments free are their au- founded on of dence doubt.” Planned v. Parenthood thority, and instituted for their benefit.” — U.S.-,-, Casey, Const, 1, 2;§ art. also Tex. Tex. Const. (1992). 2803, 120 L.Ed.2d 674 1, § art. explanation The court here offers prevents Just as other branches why disregard Supreme it chooses to government arbitrarily warning D., interfering with H. v. Court’s Michael Gerald people, 109 our 491 U.S. S.Ct. 105 of the written constitu- L.Ed.2d 91 (1989) (plurality opinion), follow, judicial scope and to tion limits the review and See, York, e.g., Armory Texas Nat'l Guard Bd. v. in 1936. 587, Morehead v. New McCraw, (1936) (declar- Tex. 126 S.W.2d L.Ed. Houston, Mellinger City v. Tex. ing wage as minimum statute unconstitutional (1887). Ironically, 3 S.W. the court has contract). impairing liberty year, In the next opinion phrase its deleted from former ly "new- Court all but eviscerated the doctrine with emerging goals,” Tex.Sup.Ct.J. social see 36 Parrish, tautology. See West Coast Hotel Co. v. (June 30, 1993), replaced it with phrase “certainty stability,” see 872 (1937) (refusing L.Ed. 703 to invalidate statute (Tex.1994). readily S.W.2d at 194 It should be process grounds noting "fijiberty due apparent policies pro- that the the court favors necessarily subject under the is thus Constitution anything "certainty stability” mote process, regulation to the due restraints of families, Texas children and and neither the subject which is in relation reasonable to its methodology court’s nor its rationale have adopted community changed. in the is interests process”). due 2. One of the last clear uses of federal substantive legislation strike down occurred judges, was inconsistent power opinion to interfere with the the courts justice. principles natural expression policy through choices abstract

citizens’ legislature. repeated- their elected We have added). (emphasis 398-99 legislature may ly held that no act of the be provi- declared unconstitutional unless some Madison, Marbury Supreme v. can be cited sion of the Texas Constitution firmly established the Court decision See, clearly invalidity. shows the act’s judicial grounded in review as one doctrine Armory e.g., Nat’l Guard Bd. v. constitution, Justice John the written Chief McCraw, 132 Tex. Marshall wrote: (Tex.1939). powers legislature are defined Early history, in our the United nation’s limited; may not and that those limits rejected the notion of States mistaken, forgotten, the constitution be authority to strike down statutes the Court’s powers purpose To is written. what “against reason” or in violation of “natural limited, that limita- purpose and to what Bull, 386, Dali. law.” Colder writing, if these limits tion committed In the famous Chase- L.Ed. 648 time, may, passed by those in- Bull, Justice Iridell debate Colder tended to be restrained.... suggested, legislature “An Chase act opposition if to the consti- So a law be contrary great principles of ... to the first tution; if both the law and the constitution á compact, the social cannot be considered case, that the court apply particular to a so authority.” legislative rightful exercise of conformably the case must either decide Bidl, Iridell 3 U.S. at 388. Justice Colder constitution; law, disregarding the or the upon based such responded that decisions disregard- conformably to the constitution of “natural law” were indeterminate notions law; court must determine ing the the concept of a written irreconcilable with the governs the case. of these rules which law: as the nation’s fundamental constitution judicial very duty. of This is the essence true, jurists speculative It is that some held, against legislative act that If, then, regard the the courts are itself, void; must, but justice be natural constitution, superi- and the constitution that, written con- [a I cannot think under legislature, any ordinary act of the or to stitution], justice pos- any court of would act, constitution, ordinary and not the the any If power to declare it so.... sess a apply. govern to which both must the case legislature of a Congress, or of the act of Those, princi- [this] then who controvert provi- state, those constitutional violates necessity to the of ple ... are reduced void; sions, though I unquestionably it is maintaining the courts must close that admit, authority to declare it the that as This eyes to the constitution.... their nature, awful the void is of delicate very the foundation doctrine would subvert authority, that resort court will never all written constitutions.... of If on the urgent case. in a clear and union, hand, or legislature the other con- the constitution [T]he of framers union, any member of legislature of templated as a rule instrument law, general scope within the pass a shall well as the government the courts as of court can- power, the constitutional of their it direct Why otherwise does legislature. is, void, merely it because pronounce it support it? judges an oath to to take contrary princi- to the judgment, in their (1 Cranch) 137, Madison, Marbury v. natu- justice. The ideas ples natural of of added); (emphasis 2 L.Ed. 60 regulated by no stan- jtistice ral are fixed (Texas Const, 1(a) 16, § art. see also dard; men have Tex. noblest ablest and oath). legiti have traced the judicial We too that the subject; and all on the differed judicial power to the written text be, macy our of say, would properly could court Ar Texas Nat’l Guard of our constitution. equal an (possessed of legislature which, mory Bd. 126 S.W.2d at 634. in the act passed opinion) had opinion Remarkably, court’s in this The Rules of II. Texas Constitutional Interpretation any particular no case contains reference review. Nor does standard constitutional in- preeminent goal of constitutional identify any language in the text the court give effect to intent of terpretation justifying its In- constitution decision. people adopted who the constitution. stead, constitutionality deciding Tex. Robison, Tex. Cox v. 150 S.W. (Vernon §§ 11.03 and 12.06 Ann. Fam.Code River Oaks accord Garden Club solely Supp.1994),3 the relies on the court Houston, City S.W.2d I, provision, sec- “due course law” article (Tex.1963). Recently, as we referred to this 19, of the tion Texas Constitution: in- “our traditional method deprived be citizen of shall No this State terpretation:” life, liberty, privileges immu- property, Constitution], we construing In [the disfranchised, nities, ex- manner people intent of the who consider “the cept by the due course of law of intent, it.” adopted determining land. history of the times which it “the out of obviously language contains rationally This section grew and to addressing or the specifically law supposed relationship, to have direct biological parents. is the good rights of Nor evils intended to be remedied and the upon premised decision historical accomplished, proper subjects of court’s to be However, For the court inquiry.” parents. because of the difficul- acknowledges: “highly improbable determining itself it is ties inherent in intent of century ago, rely heavily over a at the time of the ratification of [that] voters we Texas Constitution” the due course clause on the literal text. [Larry op- “guarantee[d] anK.] would have (Tex. Garcia, Davenport v. portunity prove paternity,” pa- because 1992) (citing Bdgewood Indep. Dist. v. Sch. ternity permitted suit was common (Tex.1989)). 391, Kirby, 777 In S.W.2d 394 in Texas. 872 at 191. S.W.2d task, approaching grave begin this we presumption process of legislature the that acts the Because the due clause4 federal Bldg. virtually Pub. v. are constitutional. Texas Auth. and our due course clause iden- Mattox, 924, (Tex.1985); tical,5 686 927 have held S.W.2d Sax Texas courts for over Votteler, (Tex.1983). far century v. 648 S.W.2d 661 that the course clause “in so due life, May Bring deprive any liberty, prop- person 3. Section 11.03. Who or Suit State of erty, process (a) without due law.... original affecting parent-child An suit the of XIV, added). (emphasis § 1 amend. relationship brought by: any Const, be time biologi- alleging a man himself to the lan- presumed the extent minor differences in cal father child who 5.To that of a has no filing guage might justify interpretations of Chapter of different in accordance with 13 otherwise_ code, Texas due course clause and the Fourteenth this but not the clause, Paternity process it ob- Section 12.06. Denial of (a) due has been Amendment any affecting parent-child In the rela- suit served: tionship, Chapter 13 of other than suit under Republic is a constitution of the of Texas The code, deny or wife is husband entitled composite portions structure of of the constitu- paternity the the the husband’s of child who is States and of of tions United several subject of and who or con- the suit was born ' It constitutions in effect that time. state marriage during parties. of ceived any appear does not that one state constitution question of under this section must followed; where material from the was by pa- express denying be raised statement incorpo- of United States was constitution ternity spouse’s pleadings of the child in the wording frequently changed, rated the suit, regard spouse without whether Indeed, advantage. apparent sometimes no petitioner respondent. is a or it been is inclined to feel that would have one process of 4. The due clause the Fourteenth Mor- better to have followed Gouveneur much Amendment to the United Constitution States English the Fifth Amendment [of ris’s lucid provides: process literally. more clause] Richardson, Framing any Rupert the Constitution State make or enforce law which N. No shall Texas, S.W.HIST.QUAR. abridge privileges Republic 31 or shall immunities States; 191, 209 citizens of the United shall nor 189, n. qualify Amend- his assent. See 872 S.W.2d as it is identical” to the Fourteenth ment, approach to the due course clause 1. This co-extensive with the Fourteenth Houston, directly City conflicts with canons constitu- Mellinger v. Amendment. (1887).6 37, interpretation tional that this court has fol- If the 68 Tex. S.W. Su- shortly adoption lowed since after preme has ruled on an issue under the 249, Mellinger, 3 constitution, Constitution.7 See S.W. this court has said that federal (Tex.1887). history Neither nor lan- ruling will unless some differ- follow guage In leads to the court’s conclusion. requires two clauses a dif- ence between the fact, much reason to there is as believe ferent result. generally narrower8 the due course clause Broad is the Due III. How process than the due clause as there is rea- Course Clause? it to be broader. son to believe result, reaching today’s five members of and the due Both due course9 explain court that the due course clause are modern reaffirmations clauses “independent vitality” “arguably and is Charta, 39, King Magna ch. John language in corresponding broader” than the promised, “No freeman shall be taken or deseised, outlawed, Constitution. 872 S.W.2d United States or ban imprisoned, or or ished, court any ways destroyed, at 197 & n. 23. To the extent nor will we him, him, recognizes upon a due course that was ex- pass upon nor will we send rejected process grounds in pressly judgment peers, on due lawful of his unless Magna H., necessarily Michael the court holds the law of the land.” ChaRTA 39, broader, matter ch. in 3 Vernon’s Annotated the due course clause is translated 624,628 chooses how CHIEF JUSTICE PHILLIPS Constitution State of Texas Junction, independent City test ... I would defer to the federal 6.See also Price v. 711 F.2d (5th Cir.1983); applying Indep. the Texas due course v. Port Arthur standard in Moore clause”). Dist., (E.D.Tex.1990); F.Supp. Sch. Inc., Project Principle, 724 S.W.2d State v. (Tex.1987); Eggemeyer Eggemeyer, v. 390-91 Although exceptions to this rule have' been four (Tex. 1977); Thompson S.W.2d Calvert, 140-41 v. identified, States, Lucas v. United 757 S.W.2d (Tex.1972); House 489 S.W.2d J., (Tex.1988) (Phillips, dissenting), all Tobacco, Calvert, Inc. v. 394 S.W.2d 657-58 opinions are from the Texas Court of Crimi four (Tex. Jimenez, 1965); Ex 159 Tex. Parte Appeals, interpreted which has not the clause nal (1958); Kirby Lum Steddum year. Compare consistently in the same — even Co., ber 110 Tex. 221 S.W. (Tex. Martinez, 742 S.W.2d Ex Parte Schneider, Koy 221 S.W. 110 Tex. (clauses same); Crim.App.1987) the Smith v. McDonald, 139, (1920); 107 Tex. 890 Mabee v. 393, State, (Tex.Crim.App. 399 n. 2 683 S.W.2d 676, (1915), rev'd on other 175 S.W. 678-681 Cruz, (clauses same), 1984) with Ex Parte 739 the 90, 343, grounds, 61 L.Ed. 608 (differ 53, (Tex.Crim.App.1987) S.W.2d 61-63 Co., Missouri, (1917); Lively Ry.T 102 v. K & 265, State, ent); Wright 269 12 v. 640 S.W.2d n. 852, 545, (1909); Long v. Tex. State, 120 S.W. 856 1982) (different). (Tex.Crim.App. 302, (Tex.Crim.App. 319-20 742 S.W.2d 1987), part grounds, Briggs on other overruled in express protec- possible exception the 8. One State, 918, (Tex.Crim.App. v. 789 S.W.2d 923-24 against clause disfranchise- tion in the Texas 289, Martinez, 1990); 291 Ex Parte 742 S.W.2d ment. 1987); Lindsay Papageorgiou, (Tex.Crim.App. v. 544, (Tex.App. [1st 751 S.W.2d 550 — Houston not one but State, Constitution contains 1988, denied); 9. The Texas Spelling v. 719 writ Dist.] I, I, § 1986), 19 and art. 404, two "due course” clauses—art. (Tex.App Worth S.W.2d 409 . —Fort clause, (Tex.Crim. § § also known The 13 due course opinion, rev’dwithout 770 S.W.2d571 open guarantees curiam); "open provision, 1988) as the courts” App. (per Massachusetts Indem. & citizen, Ins., remedy every "for an and a courts to S.W.2d v. TexasState Bd. Ins. Co. of Life lands, [them], 1985, writ). goods, per- injury (Tex.App. [their] done 113-114 — Austin States, son[s], by reputation[s] ... due course of or generally S.W.2d Lucas v. United contrast, (Tex.1988) C.J., dissenting) due course clause that (Phillips, In the law.” protects against government 711-14 infringement upon (examining and con due course cases in dissent I, depriva- rights, prevents § "Although independent individual art. cluding due "except by rights, the due course of the may applied tion of [the have course standard been I, added). occasion, (emphasis Art. the land." appeals] it is not court of criminal on of liberty, privileges, or § mention jurisprudence. Be does not firmly in Texas established justification policy for an immunities. I find no sound cause (1983); shortly the Consti- clause after Texas see also The course the Constitution Compara tution was ratified: State Texas: an Annotated Analysis ed., (George D. Braden 67-68 tive people the intended must be held that [I]t 1977). Repub The Constitution of the Texas constitution, clause the in so far read, person deprived lic “No shall be with the fourteenth as it is identical outlawed, exiled, privileges, manner amendment, thereby just re- place such disfranchised, except by due of the course legislature powers strictions the Although Magna land.” law of the the highest court nation has as the the essentially against protected Charta criminal construction of like declared the true punishment, by the time of the Texas part the language made a constitution Constitution, process” “due had come to hold purpose plac- the United States for interpreted by meaning broader power ing limitation on the of the several Supreme Mur United States Court. See states. ray’s Improve Land Lessee Hoboken & added). (emphasis Mellinger, 3 at 253 S.W. (18 How.) Co., ment course, retroactivity of Mellinger, of involved (1856); Currie, David P. L.Ed. laws, tax and was not concerned with A Prim of the United Constitution States: in of whether the due course clause issue People (1988). Nevertheless, er component. It cludes a substantive does Mag- the Texas framers retained the appear that court has considered ever land,” language, na Charta “law of the trans may possibility that “law of the land” prohibition against outlawry ferred the legislation, preclude substantive review of I, prohibi section retained article rather has due course held addition, against tion disfranchisement. pro essentially clause is identical the due “or the Texas framers added immunities” States, cess clause. Lucas United protection privileges apparent al —an (Tex.1988) C.J., (Phillips, to the lusion Fourteenth Amendment.10 Be dissenting) (citing Lively v. K. & T. Missouri they cause included selected Fourteenth Ry., 102 Tex. 120 S.W. language, Amendment framers Center, Optometry Bd. v. Lee Texas Vision formulation, chosen to retain Texas “due Inc., (Tex.Civ.App.— 515 S.W.2d land,” of the law course lieu of “due n.r.e.); F. Eastland ref'd Robert writ terrae,” process.”11 “per legem “by Since Williams, Equality Guarantees in State Con land,” by express the law of the terms of Law, 1219 n. stitutional Charta, Magna Tex.L.Rev. includes Parlia Acts of (1965)). ment, 50-57; supra CuRRiE, The Con an Anno stitution State of Texas: preclude if the framers Even did Comparative Analysis, supra tated statutes the due substantive review of under plausibly could one conclude that clause, good why course there reasons precluded Texas framers all substantive meaning treat- of these clauses should be process by retaining “law of land.” First, being ed as the same. the United approach pro- language This is consistent with Court encounters due States employed frequently court far than does this to construe the due cess issues more immunities,” By privileges delegates 1875 the and retained federal or immunities added "or practical nullity” had been "a previous Magna clause the rendered of the Texas reformulation Cases, (16 Wall.) Slaughter-House language language than restore the Charta rather 71, 77-89, 21 L.Ed. 394 changes Magna verbatim. The of the Charta made with debate or seem to been little Convention, During the 1875 Constitutional However, (1) controversy. it clear that remains Rights proposed Bill of fol- Committee language was the Fourteenth Amendment lowing: during brought delegates to the attention of the life, deprived No citizen liberty, this state shall be debate, (2) proposing a in lan- rather than shift property privileges, or in man- Rights process,” guage to closer "due the Bill disfranchised, except by judgment ner of his original proposed to lan- Committee a return peers, or the the land. law of Charta, (3) delegates guage Magna Constitutional Convention Journal chose to retain "law of land.” convention, (1875). By amendment at the court, position this and thus is a better to S.W.2d at 196. As its lodestar the court develop dissenting opinion a coherent and consistent frame- chooses Justice Bren- Second, nan, precedent joined by justices, work: because federal two other and an opinion by this area is more extensive than our Supreme state the Louisiana Court. jurisprudence, Mellinger approach pro- Id. at 196 & 197. certainty discourages motes in the law and Supreme All members Court in Mi- Third, unnecessary duplicative litigation. agreed putative chael H. that a father who dangers process going of substantive due relationship has not established a with his awry great, and a restrained method process right child has no due to establish arbitrary minimizes the likelihood that deci- H., any relationship. Michael at U.S. legitimacy sions will call this court’s into 121-30, (Scalia, J., at 2340-46 question. Finally, a restrained method en- joined C.J., by Rehnquist, O’Connor & Ken- jurisprudence ables our due course JJ.), (Stevens, J., nedy, concurring), 132-33 departs evolve—to extent from the (Brennan, J., joined by 142-43 Marshall & federal maximum cases—with deliberation Blackmun, JJ.), (White, J., joined 159-61 Simply put, and care. unless differences be- J.). Brennan, Justice Stevens concurred give good

tween the clauses us a reason to four-judge plurality opinion by with the Jus- depart holdings from either the direct ground tice on Scalia that Michael H. had Supreme methodology, Court or its then we right no constitutional to a declaration of should not do so. 132-33, 2346-47, paternity, id. at 109 S.Ct. at D., statutory Michael H. v. Gerald but noted that the California (plural- provided opportu- scheme still Michael H. an ity opinion), rejected Supreme nity “any person” other maintain sue process challenge relationship to a California statute his established with Victoria. 133-36, more restrictive than the Texas Id. at 109 S.Ct. at 2347-49. Justice only legally signif- statute at issue here. The Stevens did not decide whether an estab- icant relationship protected difference between Michael H. and this lished results in a putative ability rely right, purpose case is the for the de- “assume[d] relationship. ciding right an established Michael H. had this case” that such a existed developed relationship daughter H. and Id. at with his between Michael Victoria. H., years, Presumably, even Victoria over several see Michael S.Ct. at 2348. Justice 2337-38, Larry Brennan hold that K. does not would K., Thus, Larry brought pater- paternity. have a while when he this sue divisions,” Code, “sharp nity action under the Texas there are no see 872 justices concerning acknowledged sup- among the responsibility for child S.W.2d at “unsuccessfully presented in case. port, attempted to the issue this [initi- contact” with his child. 872 S.W.2d ate] identify If court some difference could relationship give 190. If Michael H’s did not process and due between the due course relationship, him the to maintain his clauses, clause in the Texas Con- some other surely Larry argument here carries then K.’s stitution, history aspect of or a tradi- some then, weight. Unavoidably, even less that the unique to Texas to demonstrate tion H. decision Michael Court’s authority confers an Texas Constitution dispositive unless some difference between the United States intervene this case when course clause the due and the due not, the court’s con- does then Constitution mandates a different result. supportable. But the court might clusion difference, identify a relevant acknowledged even appeals that its does The court of affirms, suggest I do not compelling “in a one. is let alone judgment, which this court never look to the that this court should the ... Court’s direct conflict with rights 863, whether to determine 867. Neverthe- Constitution decision.” 815 S.W.2d rights from the less, provides H. it are different that Michael this court claims provision of analogous guaranteed under an understanding” our essen- merely “useful in My concern Constitution. clause. 872 the United States tially due course identical 406, opposite 418. Yet he took the departure from S.Ct. at is that court’s dramatic position in his Michael H. dissent. Michael interpretive our usual framework under- (Bren- H., at at 491 U.S. legitimacy. mines this court’s

nan, J., dissenting). analysis that A not assume proper would Substantive Due Process IV. Larry right paternity, a establish What the court describes as the source of (1) pre-existing a rather ask is there would unconstitu- power (2) its hold these statutes so, nature right, if what is the substantive due pro- (3) tional is the doctrine of substantive any there counter right, of this Although appeals cess. the court of vailing permit the interests that would state so, enough say at 866- candid S.W.2d right state terminate the father’s coy Only it. this court seems about presumed is a father? Procedur when there dissenting opinion di- JUSTICE ENOCH’S questions only al arise after identification rectly the basis for the court’s hold- right any identifies coun a relevant constitutional ing. way tervailing In this state interests. likely on focus more to remain whether Although point at the court one claims to valid, than how we statute itself is rather “right to merely procedural a establish af weigh rights and interests of would heard,” at 872 S.W.2d it elsewhere ad- writing statute persons fected were we mits issue at stake involves substantive Larry parental rights are ourselves. K.’s rights” “parental to “establish a relation- law, question and the court of substantive 190, 195, 17, including n. ship,” id. visita- analyze competing must interests rights. custody tion and at 191. The can stake determine whether before plurality correctly pointed Michael H. out adequate. gen statutory procedures are change that one a substantive due erally Washington Harper, 494 v. U.S. procedural process simply case into a case (1990) (ana S.Ct. L.Ed.2d characterizing a substantive rule of as a lyzing policy on sub prison medication both procedural “presumption,” at 119- DeShaney procedural grounds); stantive and 2839-41; 109 S.Ct. at also id. at 132- Seros., Dept. Winnebago County Social J., (Stevens, 109 S.Ct. at 2346-47 concur- 1002-04, 189, 194-97, U.S. ring). highlight Other decisions also (due process right 103 L.Ed.2d 249 essential distinction. require provide does not state to services or custodial benefits absent “entitlement” example, in For New Vehicle Board Motor relationship); Regents the Univ. Michi Co., W. v. Orrin Fox U.S. S.Ct. 214, 222-28, 106 gan Ewing, S.Ct. (1978), Brennan Justice (1985) (charac 507, 511-15, 88 L.Ed.2d rejected writing for Mo- the Court General pro terizing due medical student’s asserted argument procedur- it was tors’ denied a right cess to retake examination as “substan hearing al under a California stat- Illinois, tive”); Stanley v. 650- governing dealership licensing pre- ute S.Ct. 31 L.Ed.2d placing General Motors from deal- vented (1972) (holding biological rights sub existing in the ership “market area” of an ject process and to both substantive due licensing franchisee absent a waiver from the equal analysis). protection wrote, “[The board. Justice Brennan stat- expressed grave H. In Michael the Court appellee does restrain General Mo- ute] [not] apparently limitless na- concerns about exercising it had tors from process. Expanding ture of due substantive Act, enjoyed.... It was the previously include due clause to substantive Board’s that curtailed General Mo- notice in the text of the Con- not mentioned right to Id. at 104- tors’ franchise will.” said, stitution, the Court 05, 99 at 409. Justice Brennan identi- Court, field for this pro- has been treacherous the issue as one substantive fied cess, lest the concerning proce- giving reason concern despite the claims judicial hearing.” ... intervention become right to Id. at limits to “a dural 210 (19 predilections Scott, How.) happen of those who (Curtis, to Dred 60 U.S. at 621 J., dissenting). Members of this Court.... [because] Court, judiciary, including [t]he is the century Around the turn of judges most vulnerable and comes nearest to ille- process found substantive due useful for sti gitimacy judge-made when it deals with fling progressive labor law reform and other having cogni- constitutional law little or no legislation. Kermit L. Hall, William M. language zable roots in the or even the Wieck, Legal Finkelman, & Paul American design of the Constitution. 367-8, History, 388 Cases Materials (1991); Tribe, H. Lawrence American Con 121, (quoting 491 U.S. at 109 S.Ct. 2341 (2d see, 1988); Law 567-74 ed. stitutional Cleveland, City Moore v. East 431 U.S. York, 45, e.g., Lochner v. New 25 U.S. 494, 502, 97 S.Ct. 52 L.Ed.2d 531 539, (1905), by S.Ct. L.Ed. 937 overruled (1977)); City see also Collins Harker Parrish, — West Coast Hotel Co. v. 300 U.S. U.S. -, -, Heights, 1061, 112 S.Ct. 379, 578, (1937); Cop 57 S.Ct. L.Ed. 703 1068, (1992) (“[T]he 117 L.Ed.2d 261 Court Kansas, 1, page v. 236 U.S. 35 S.Ct. always expand has been reluctant to the con (1915), by L.Ed. overruled NLRB v. cept process of substantive due because Laughlin Corp., Jones & Steel 301 U.S. guideposts responsible decisionmaking (1937); S.Ct. 81 L.Ed. 893 Adkins v. open- this uncharted area are scarce and Hosp., Children’s U.S. S.Ct. ended.”) Judicial resort to substantive due (1923), by 67 L.Ed. 785 overruled West Coast process principally has been criticized as an Co., Hotel by judges extra-constitutional means (1937); L.Ed. 703 see also Hammer v. Da impose preferences society. their value genhart, 247 U.S. 62 L.Ed. (1918), overruled United States v. early application The most notorious Darby, 312 S.Ct. 85 L.Ed. Supreme doctrine the United States (1941). Sandford, Court was Dred Scott v. proge- After the demise of Lochner and it (19 How.) 393, 450-52, (1857), 15 L.Ed. 691 ny, process substantive due 'did not vanish Roger Taney which Chief Justice concluded entirely, sharply but its use was curtailed. (1) protec- slave-owners were entitled Tribe, supra at 574-86. In an effort to Fifth tion under the Amendment for the minimize, the inherent doctrine’s arbitrari- slaves, property rights they held in their id. ness, developed Compromise the Missouri rigorous analytical applica- framework for its deprived

was unconstitutional because it tion: “property” pro- slave-owners of without due inescapable adjudication fact is that they transported cess when across slaves upon process [calls] substantive due claims 450, 452; Id. at state lines. see also John interpreting the the Court in Constitution Democracy Ely, Hart and Distrust: A The- judgment. ... Its to exercise reasoned ory James W. of Judicial Review susceptible expres- boundaries are not Every Ely, Jr., The Guardian Other mean simple sion of a rule. That does not Right: History Prop- A Constitutional policy choices we are free to invalidate erty Rights (1992). The Court’s decision disagree; yet neither does with which we fiery Curtis: drew dissent Justice the duties of permit us to shrink from interpretation When a strict of the Consti- our office. tution, according to fixed rules which , —U.S.-, Casey Planned Parenthood v. laws, govern interpretation is aban- -, doned, opinions theoretical of indi- and the meaning, viduals are allowed to control its Constitution; employs a “rational longer generally we have no we are The Court men, analysis government under the of individual basis” substantive is, if a interferes being power cases. That even statute who for the time is, right, according an identified constitutional declare what the constitution unless it bears ought will not strike it down to their own view of what it mean. Court

211 people govern- of our legitimate no rational relation to the tradition and conscience ment interest. United States v. Carotene thus “im- be as fundamental” and ranked Co., 144, 148-53, Prods. 304 U.S. 58 S.Ct. concept liberty.” plicit in the of ordered (1938). 778, 781-84, 82 L.Ed. 1234 Under 145, Louisiana, 88 Duncan v. 391 U.S. S.Ct. test, uphold the the will rational basis Court (1968); 1444, 20 491 v. Con- L.Ed.2d Palko hypothetical a law if “it even reasons necticut, 58 302 U.S. S.Ct. might thought particular legisla- that the be J.). (Cardozo, L.Ed. 288 82 way tive a measure was rational correct extending process substantive due When legislature might problem” some the have beyond express the rights those found Optical identified. Williamson v. Lee of Rights,12 Bill the Court language the Okla., Inc., 483, 487-88, 348 75 S.Ct. U.S. (1955). consistently a for the 461, 464-65, identified basis 99 L.Ed. 563 history language and extension in the departs generous from this test example, For in NAACP v. Constitution. right Carey when a fundamental is at stake. Alabama, 449, 460-66, U.S. 78 S.Ct. 357 Int’l, Population v. Seros. 431 U.S. 685- 1163, 1170-74, (1958), 2 L.Ed.2d the 1488 2010, 2016-17, 675 S.Ct. 52 L.Ed.2d right a Court identified fundamental asso (1977). However, simply a funda because First and amend ciation Fourteenth right is not ... mental at stake “does auto expressly not mentioned in the consti ments every matically regulation invalidate state Connecticut, v. text. Griswold tutional may ... regulation even a burdensome be 482-85, 1680-82, 381 U.S. by sufficiently a compelling validated state (1965), the Court identified scrutiny analy interest.” Under strict sis, however, “narrowly privacy by “zone created several funda the statute must “necessary” guarantees,” including tailored” to achieve that mental constitutional Wade, compelling Roe rights assembly, interest. First Amendment 113, 155-56, 705, 727-28, association, press, S.Ct. L.Ed.2d speech, and the the Third — (1973); -, Casey, at U.S. quartering, against Amendment (Blackmun, J., concurring). S.Ct. at Fourth Amendment to be free from seizures, the self-incrimination searches identifying rights, When fundamental Amendment, Fifth and the clause applied exacting Court has his- Ninth also Pierce v. Soci Amendment. See analysis. torical and textual The most famil- Sisters, ety U.S. S.Ct. by iar of protected the substantive liberties 571, 573-74, Meyer 69 L.Ed. 1070 recog- the Fourteenth Amendment are those — Nebraska, 390, 399-403, 43 S.Ct. Rights. Casey, nized the Bill of U.S. 625, 626-28, Recent 67 L.Ed. 1042 -, However, 112 S.Ct. at 2804. history eases also focused on incorporated Court has not into Four- (and primary as the restraints on the discre applied text teenth Amendment thus to the states) analyze rights recognized they when cases under all in the Bill of tion of courts See, Rights, e.g., Casey, those “so rooted the due clause.13 defining tempting, curbing says; merely ‘lib "It is as means of H. observes erty,’ disregard specific, judges, liberty ‘relevant suppose ... we discretion of to, protecting, denying protection rights already tradition encompasses no than more those Rather, "). right’ is one of asserted rule guaranteed express provisions ... — at-, judgment,” "reasoned id. U.S. eight first amendments ... of course [b]ut [the] — S.Ct. at which does "foreclose the adopted Casey, never Court has that view." imposition unanticipated by prior [this] at-, U.S. 112 S.Ct. at 2804-05. H., analysis.” form of historical Michael 13. Although application (O’Connor, J., anal of historical 109 S.Ct. at 2346 U.S. ysis tempting suppose Although Due “it is ... concurring). tradi protects only practices living thing," Clause ... Process those "a "[have] tion is it must however protected against government interfer regard histoiy that were teaches are the traditions what developed ence when Amendment was ... the Fourteenth as well as the traditions from which it U.S. at -, ratified,” Casey, such view “is inconsistent with our which it broke.” - from Ullman, 2805; at-, Casey,-U.S. (quoting Poe v. law." 112 S.Ct. at 2806 J„ at-, (Scalia, L.Ed.2d Id.-U.S. 112 S.Ct. at 2874 ("That not, (1961) (Harlan, J., dissenting dissenting) dismissal what however Michael — at -, 2805; 112 biological U.S. S.Ct. at Michael born. The father pa- filed filiation H., 132, 491 at pers only U.S. 109 S.Ct. at 2346. adoption proceeding after the had Comparing Stanley, commenced. the case to Applying

V. the Framework recognized a unanimous Court “the to the Facts countervailing interests” of the married fami- 248, ly “are more substantial.” Id. at Casey, In Planned v. Parenthood Although S.Ct. at 551. the child had ex- analysis Court criticized the historical pressed hearing at a a desire to continue plurality. justices Michael H. But while all father, visiting biological the statute di- appear agree on the Court that a man in biological vested the father of all Larry position right K.’s has no to sue for 11, clause, rights, including process visitation. Id. at 251 n. under the due a re- Noting 98 S.Ct. at 553. that “the result of process evaluation of the due Court adoption in they give recog- this case is to full apply family relationships cases as existence, already to a purposes for nition unit a confirming the Michael H. concerned, except result desired all holding [the is indicated. This re-examination re- father],” biological the Court held that the analysis veals that this court’s is fundamen- tally statute satisfied the due clause. Id. flawed. 255, at at In 98 S.Ct. a situation Illinois, 645, Stanley v. 405 U.S. wedlock, which the child was born out of 1208, (1972), S.Ct. L.Ed.2d Court only father’s could be denied struck down a law that denied an unmarried following hearing a and determination of “the custody upon man over his children the death 255, best interests of the child.” Id. at Although Stanley of their mother. had lived S.Ct. at 555. years with the children’s mother for them, helped support only option his The statute at issue Caban v. Mo hammed, retaining custody 441 U.S. 99 S.Ct. under Illinois law was to (1979), 646-48, paternal adoption. sue for at at L.Ed.2d 297 also involved Id. S.Ct. Louisiana, adoption Citing Levy 1210-11. v. consent to the of a child born out of 391 U.S. 68, 71-72, 1509, 1511, Although 88 S.Ct. 20 L.Ed.2d 436 wedlock. the Court held the stat (1968), equal “recog protection ute unconstitutional on the Court wrote that it would grounds impermissible family relationships unlegitimized because it involved nize those discrimination, gender by marriage ceremony.” Stanley, a the Court did not 405 U.S. identify any process right in the father at 92 S.Ct. at 1213. The Court held that entitling him Stanley’s relationship to more than intermediate-level established with his Caban, nonfundamental, scrutiny. at gave “cog U.S. children rise to a Reed, (citing process right. substantial” due S.Ct. at 1767 Reed v. U.S. nizable and Applying 92 S.Ct. 30 L.Ed.2d 225 F.S. Id. at 92 S.Ct. at 1213. a test, held, Royster Virginia, Guano Co. v. 253 U.S. relationship rational the Court (1920)). ... if 64 L.Ed. “The state’s interest is de minimis distinguished Stanley expressly The court between to be a fit father.... Un is shown adoptions adoption of efficiency infant and the two the Due Process [the der Clause with their father for justify children who had lived presumption] a is insufficient to refus 389-90, at years. Id. 441 ing hearing ... a when the issue stake is provided [Stanley’s] family.” 1766-67. While statute the dismemberment of only maternal consent in the former case at 1216. Id. S.Ct. substantially impor would be related to Walcott, Later, Quilloin interest, government tant the same statute (1978), biologi- 54 L.Ed.2d 511 S.Ct. the latter not. case would adoption cal father of his sued block Robertson, Finally, in child the mother’s husband. The mother Lehr (1983), the not married at the time the child was might jurisdictional grounds)). "certainly guided speculation them.” Id. It take [is] judges where free roam where un [are] one together rejected pre-Michael claim that H. cases when read things: he had an absolute to notice and H. reveal several with Michael adopted. child hearing before his could be protec highest level that the of constitutional signed “puta- had Because father claim is intermedi tion an unwed registry” provided sup- tive father child scrutiny, if he has a devel ate-level port, was not within classes relationship offspring oped notice, the persons who were entitled gender-based a result of a terminated as any more Court held he was not entitled to 391, Caban, classification,14 441 atU.S. 99 see Noting in provided notice than the statute. (2) 1767, biology at alone establishes S.Ct. rights spring do full- “[pjarental process rights, minimal of see the most due biological blown from the connection between Lehr, 260-61, at 2992- 463 at 103 S.Ct. U.S. child,” 260, at at parent and id. 103 S.Ct. 93, the father even to and not entitle does Caban, 397, (citing 2992 441 at U.S. 99 S.Ct. notice, right hearing, a actual let alone a to 1770), biologi- suggested at the Court that a (3) 264-65, 2994-95, at at see id. 103 S.Ct. right protection cal father’s to constitutional circumstances, importance other under strength with the of his increases relation- right sliding is the father’s measured on a ship as-the father “come[s] forward totality of depends on the scale participate rearing of his child.” 258-62, circumstances, id. 103 S.Ct. at at 261, (citing at 463 U.S. 103 S.Ct. at 2993 Caban, 2991-94; 392, 441 at 99 S.Ct. at U.S. 1768). Caban, 392, 441 U.S. at at 99 S.Ct. (4) 1768, relationship a between marital emphasized also Court Constitu- adoptive presumed and the or the woman provides protection family tion for “formal protection, is entitled to constitutional relationships,” stating: protec and its existence reduces level marriage played The institution of has Quil biological father. tion afforded the See legal defining critical role both in enti- 248, Lehr, loin, 551; 434 at S.Ct. at U.S. 98 family and in tlements members devel- 256-58, 103 S.Ct. at 2990-92. 463 U.S. at oping the decentralized structure of our cases, society.... democratic In some Although the standard due frame however, this has Fed- Court held analysis into a “rational work channels either supersedes eral Constitution state law framework, scrutiny” basis” or “strict provides protection greater even for formal complexity relationships human at issue in family relationships.... court has [T]he family has yielded law cases more flexible duty the relationship found that of love and analysis. Su sliding-scale Under the current family in a recognized an unit is interest framework, impor preme analytic liberty protection. entitled to constitutional familial must tance of the Cleveland, City See also Moore v. East identified, taking due account of the 1932, first be 431 494 U.S. S.Ct. 52 L.Ed.2d [97 (1977). others, process rights and a 531] intervention termi- State relationship subject regulation nate such must be accom- if the is plished by procedures meeting requi- sufficiently countervailing state interest Santosky sites of the Process Due Clause. Caban, 391, important. 441 at 99 U.S. S.Ct. Kramer, 1388, 71 [102 U.S. S.Ct. 1767; 685-86, Carey, 431 at 97 S.Ct. at U.S. 599] L.Ed.2d Co., 2016-17; Royster Guano F.S. Lehr, 2990- 415, Only 463 U.S. at 103 S.Ct. at S.Ct. at 561. statutes U.S. affecting traditional marital families lineal living voluntarily as a unit relatives

Although no until H. ad case Michael judicial couple, subject scrutiny. to a been strict dressed a child born married presumed Notably, gender no could under circumstances be child’s such classification Nevertheless, point court parent. man at one exist under the Texas statute. If married woman, equal they segue appears into to be were live with an unmarried elects what wife, charges "[g]ender argument protection a child he returned to his when conceived before couple. preeminent consideration Justice Cor- the child would not be born to a married 195, wedlock, nyn.” 872 n. 17. As should be As the child would be born out of apparent my preeminent purpose preventing apparent, concern is for the state paternity children and families. suit because the man's wife would not Pierce, 510, couples U.S. 45 S.Ct. 69 to pater- married are better served if (1925); Meyer, L.Ed. 1070 nity litigation outsiders, U.S. 4 its associated (1923); fathers, S.Ct. 67 L.Ed. 1042 Prince v. even altogether. is barred Massachusetts, 321 U.S. Not appear rationally does the statute (1944); Connecticut, L.Ed. 1090 Boddie v. related to protecting the state’s interest U.S. S.Ct. 28 L.Ed.2d 113 children, promotes it also the state’s interest (1971); Loving Virginia, in protecting general families interest —an (1967); S.Ct. Carey, L.Ed.2d 1010 apart any particular family’s right to be 52 L.Ed.2d 675 government free from leg- interference. The Cleveland, City Moore v. East reasonably islature could determine that liti- gation over and visitation would (level (plurality opinion) scrutiny prove disruptive so rarely produce and so voluntary family indeterminate for of lineal any satisfactory outcome that all such law- relatives). suits should be barred. Even if the court is The factors that must be considered Larry correct that K. has a Texas constitu- determining importance putative the of the right tional recognition, entitled to the state (1) right presence include the of a legitimate significant pro- and reasons (2) connection, biological the duration and paternity altogether hibit lawsuits when a quality relationship of the actually that has family marital is involved. (3) developed,15 putative the father’s efforts There is ap another defect the court’s fatherhood, (4) obligations to fulfill the and proach: general creation court’s of a presence of countervailing family inter- right putative paternity fathers demand ests, particularly when the child is born ato may process. tests itself violate due Tradi Here, family. traditional no relationship has tional marital height families are entitled to actually developed. Although Larry K. has process protection against ened due intrusive willingness parental indicated his to assume Pierce, 510, state action. 268 U.S. 45 S.Ct. responsibilities and has demonstrated a bio- 571, (1925); Meyer, 69 L.Ed. 1070 262 U.S. connection, logical these factors are offset 390, 625, 43 S.Ct. 67 L.Ed. 1042 what I would hold are the “more substantial” Prince, 784, 321 U.S. 64 S.Ct. 88 L.Ed. countervailing process rights of the fami- (1944); Boddie, 401 U.S. 91 S.Ct. Quilloin, ly. See atU.S. 98 S.Ct. at (1971); Loving, 28 L.Ed.2d 113 388 U.S. circumstances, Larry Under the K. is scrutiny entitled to no searching more than process protec J.W.T. is also entitled to due Quilloin, the rational basis test. at may tion before the state interfere with his 254-55, 554-55; Lehr, at S.Ct. 463 U.S. at physical integrity. California, See Rochin v. 2995; H., at S.Ct. Michael 491 U.S. 96 L.Ed. 183 109 S.Ct. at 2341-46. Therefore (1952) (holding pumping that stomach to ob constitutionally the statute is valid if the tain criminal process); evidence violates due state legitimate, interests at stake are and Abram, 432, 435-40, Breithaupt v. the statute is related to them in a rational 408, 410-13, L.Ed.2d 448 manner. (applying Rochin v. standard to California Among the state interests the statute can blood alcohol test administered incident to be promoting “certainty said to advance are arrest). children, stability” in the lives of Nevertheless, advancing S.W.2d “the best exercising interests” the constitu- child, “minimizing of the id. at right today, famil- tional the court has identified disruptions ial Larry are harmful to the child.” can employ power of the state to legislature certainly Id. at 197. The compel sampling could of J.W.T.’s blood after conclude that best interests of children showing born efforts” “serious continuous Lehr, Caban, potential relationship 463 U.S. at 103 S.Ct. at 2993 and the in- ("The case, developed parent- difference between the Quilloin volved in and this is both clear and relationship implicated Stanley significant.”). child that was constitution, responsibilities. adapt simply it can recite exercise 872 to also, 5; incantation, recognized n. “We Tex.Fam.Code (“When § respondent appears 13.02 changes adaptability to such of our state’s Ann. suit, in a the court shall order the governing law and found considerable father, mother, alleged and child to sub- organic strength nature of its com- blood.”) taking (emphasis mit to the mand,” add- accordingly. 872 S.W.2d and amend ed). Then, if positive, the tests are 99% methodology allows the Texas at 194. This against proof must shift the burden court “adaptable” any time Constitution to become family, statutory imposing pre- thus this so desire. five members of court paternity against sumption protected justification in this is an The court’s case § family. marital 13.05. Ann. Tex.Fam.Code (a) apt Texas Constitution illustration: Assuming the marital will be unable to (b) “adaptable,” prior have accord- decisions fact,” Larry K. will rebut “scientific “great respect” ed for the bond parent-child entitled “create relation- (c) child, therefore, this parent between ship purposes” ... for all with J.W.T. See fundamental consti- bond assumes § While the re- 13.09. Tex.Fam.Code Ann. status, rendering any legislative tutional sults blood test have substantial qualification void.16 Id. When status, impact legal including on the child’s Larry goes require the court on to K. relating issues to inheritance and efforts,” make how- “serious continuous support, provides financial for no court ever, rights against court balances his hearing testing in of advance to determine conflicting very it the the interests forbids the test itself in the whether blood “best “in- legislature balancing from —the interest-of the child.” If a “best interest” the establishing relationship,” terest in a hearing in of advance state action substan- child,” protecting in the “public interest tially developed relationship affecting a be- “public securing homes the interest in stable tween unmarried and his children for children.” Id. at supportive families constitutionally required, Stanley, 195. U.S. at S.Ct. at then a marital family certainly should be to a entitled “best “[sjignifi- The court bases its decision hearing interest” before someone outside the changes in century cant the resolu- twentieth family may power harness the of the state to affecting family.” tion of the issues compel presumption action will that create a changes include S.W.2d at 193. The cited disrupting family unit. If a child born to authorizing paternity ac- statutory changes couple a married is not of the child tions, permit that easier advances science husband, couple but nevertheless as- proof biological paternity, an increase of responsibility full sumes for the child and divorce, families, single parent out-of- develops relationship, then births, stigma at- wedlock the social right under the United States Constitution illegitimacy. None these tached to of paternity challenged. not to that The changes rights new under the Texas creates judgment cognizance takes no of court’s and Constitution. right. violates that First, “illegitimacy,” of term removal “Adaptability” Analysis The Court’s

VI. Family not does mean that Code longer analysis stigmatizing. is no Unless “adaptability” The court’s is con- such status some, objectionable elusory the term there exercise. Whenever the court wants were process.” Family suggests adoption Id. The Code The court the constitutional 16. only qualified adoptive jeopardy biological keep out of of fathers still be will families willing legislature adoption. long court strike its in cases so as the is not of However, grounds. provisions The down on constitutional the court does n. places adoption process in explain why right may qualified by case reason this not context, today judges rights yet jeopardy announce in one is that seven families not employ point willingness to Constitu- their the Texas another. The court also misses the when they Family Family dis- against the Code whenever argues Code tion "[a]n examination of the produces. jeopardize Code like the result indicates that our decision does Next, presumption applies would be no reason to remove it. selectively favor a simply proof paternity because Therefore, is easier against outsiders. the court’s does not mean that blood tests should be the proffered justifications bear no relation to sole, primary, par- even determinant of change the court makes the law. Rather, adoption clearly enthood. our laws legislature The amended these same stat- parenthood legal indicate that is a status that recently utes as as 1989. As we have said may develop with or without a repeatedly assessing when the constitutional- spring connection. “Parental do statutes, ity expediency the wisdom and full-blown from the connection be- parent They require legislature’s tween prerogative. and child. rela- is the sole Lehr, tionships enduring.” See, more 463 U.S. at e.g., Burgess, Vinson v. 773 S.W.2d omitted). (emphasis (Tex.1989). 103 S.Ct. at 2993 duty We have a clear uphold they produce policy if statutes even presumption paternity originally The See, disapprove. e.g., Tijerina of which we prevented proof by parents the married aof (Tex.1992) City Tyler, 846 S.W.2d product child the child was not a J.). Moss, (Doggett, goals upon If marriage. Goodnight the social Eng.Rep. (K.B. 1777). Technological “emerging,” ad- court relies are indeed it is allowing greater accuracy Texas, court, vances up estab- people to the not this lishing paternity may have influenced the make them law. legislature’s permit par- decision to married Moreover, allegedly the court’s dramatic challenge ents to of them own nothing snap- social “trends” are more than a However, legislature children. did not year’s shot from last Statistical AbstRact abrogate presumption entirely, the marital history the United States. respect parents to the married divorce, demography single parenting, Sept. themselves. See Act of 68th remarkably compli- out-of-wedlock births are R.S., 7,§ Leg., ch. 424 1983 Tex.Gen.Laws cated,17 subject and are to considerable de- Simply policy because the reasons fa- bate inside and outside academia.18 None of voring presumption against par- married new, phenomena these are and statistical longer ents no exist does mean subject

policies protecting pre- rates of increase or decrease are to such as families and Indeed, serving manipulation.19 examining the best interests of children do not others Brookes, Period, Reproduc Illegitimacy Early 17. See Barbara Women and Ratios in Modem 40 tion, (1987). 1860-1939, History Rev. 41 in Labour Womens’ The Economic and Love: Experience Family 1850-1940 149-71 of Home and (Jane Lewis, 1986); ed. Compare Stone, Family, Lawrence Uncertain Divorce, Sex, Road to and Mar- 1660-1753- 3-32 Marriage England Family: riage, with Ferdinand Unions: in Subversive Mount, The (1992); 15-92, England History Stone, Marriage Lawrence Road to Divorce- Love and An Alternative of 1-45, 121-228, (1990) (1982); [here 1530-1987 347-416 153-259 see also Barbara Dafoe White- inafter head, Quayle Right, April Dan Was Stone, to Lawrence The Divorce]; Road Atlantic, The Francis, 479; 1500-1800 Family, Marriage England at Samuel Inchoate Cultural Sex, and in 23, 1993, Game, Family, [hereinafter Times Mar. Numbers Sex, Washington Marriage]; and An F3; Greenberg, The Trouble With Us: Weaker Vessel- Womens’ at Paul Fraser, tonia The Lives in (1987); Century Maybe Economy, Stupid, Its Not the Seventeenth England Statistical Chicago Trib- (Bruce 23, 1993, 23; Family Apr. Perspective A. at Martin Handbook American une Heaton, 1992); Walker, May Diary, Chadwick & Tim B. eds. see American Guardian, The Goetz, generally David Researcher Tries to Pin at Features 18. Grandfather, Down Name Lincoln's U.S.A. To of 29, 1993; April Multiply, Be and Unwed day, example, generally supra For The note 17. 19. See 16, 1984, 50; Stephanie Economist June at Coontz, Empower study, one recent & Heritage America The Way We Were- The Never American Families and the Cultural Leading Foundation, Indicators Index of Trap 8-41, 91-121, (1992); 207-54 (William Bennett, 1993), Nostalgia selects 1960 its ed. Smith, Phillips Cutright, Herbert L. Jr. & Think year Not coinci- for several statistics. baseline ing Change Illegitimacy emerged About in Ratios: United dentally in had the United States States, 1963-1983, (1988); Demography phenomenal prosperity. While a decade of from Smith, Phillips Cutright percent represented & Herbert L. Trends in citizens 5.98 United States Illegitimacy Among English-Speaking Popu population, Five of the 1960 world Nations, United 1940-1980, at Prospects: 1992 Revision Demography Population lations: World The ST/ESA/SER.A/135, Mitchison, U.N. U.N. Doc. Leah Leneman & Rosalind Scottish data, contradictory and is the issue conclusions diametri- troduction have reached internal research for product of limited cally opposed court to those the reaches.20 already bolstering a purpose of conclusion Finally, uniquely courts unsuited reached, expected, be sound decisions cannot reaching “legislative resort such facts” in It n therefore difficult how the court’s policy Especially social decisions.21 when the Family sections of the suppositions render subject the court on is not unconstitutional, information relies particularly when Code cross-examination, subject demographic to chai- and legislature had access and by in- information at least as reliable lenge opposing party through the scientific en, (1993), particularly years. recent In sta- Sales No. E.93.XIII.7 United Nations wedlock, out of tistics from 1953 show that the United States births in were adolescent twenty responsible percent per for 51.68 of the worldwide in the this increased to (non- However, just value in mined and manufactured years added to 1980. from 1960 Id. agricultural) goods. U.N. 1960 U.N.Stat.Y.B. years the rate between seven contrast, Sales 61.XVII.1. United No. per per jumped from 476 to 619 represented percent of the words, States in 1990 4.72 teenage well over births In other half Population Prospects, population, su- world World today the extent these are out of wedlock. To pra gross at and the United States trend, appear would a social statistics indicate product had domestic risen to between 25.59 illegitimate explosion in births the recent percent gross product, depending 27.46 world rather than celebration at the cause alarm methodology, low in on measurement from a goals triumph emergence of new social percent of 1980 of between 23.20 and 26.79 promoting "certainty stability.” science gross product. world Nations, United Trends Gross World Product commentators, with a broad International Distribution 20. Several other ST/ESA/SER.X/18, Doc. Sales U.N. U.N. views, range political examined iden de- No. E.92.XVII.7 Other writers have in tical social statistics concluded illegitimacy scribed the decrease in that accom- stability family be beneficial for creased would rising panied industrialization standards Whitehead, supra; society. Cal American Thomas, living: Which The Public Schools to our Chil Giving experience was an birth shared Sep. Going, dren are Times-Picayune, majority years of women in the 1860 to B7; Secretary Ex-Education Sees Sickness of and, experience increasingly, took B5; Soul, Sep. Bro L.A. Times 1993 at David place marriage. "illegitimate” within As der, Messages Quayle’s Warning: The Bear out century, births declined the late nineteenth Threatened, Family is American Chroni Houston marriage formal necessary precondition became more entrenched as a 29, 1993, (describing at A15 Mar. "interest cle, bearing rais- to the convergences” ing between William Bennett and ing of children. Bradley Bill at a seminar on Sen. Brookes, Reproduction, Barbara Women and Gergen); sponsored David How Reverse Experi- in Labour Womens’ and Love: Indicators”, Fall "Cultural Gazette, Phoenix (Jane 1850-1940 149-167 ence Home and 3; Perspective May Willie Richard Lewis, 1986). ed. Richardson, Daye Single Par son & Guenevere However, rising levels of relative material Children, Impoverishes enthood Black Houston sole, prosperity predomi- are not or even the July at A5. These commen Chronicle, affecting illegitimacy nant factor rates. For ex- that differ tators are cited to demonstrate views ample, of United while relative state issues, concerning adopt widely these not to improved period economy States in the between position. particular period accompanied and study, illegitimacy. a dramatic increase in One Davis, Peggy is a about States, C. "There Book focusing illegiti- found that on United Absorption Legis- Analysis ... ”: An Judicial macy percent among in the whites increased 75 of of Facts, (1987) lative period 1539, 1541 between 1963 and most of 100 Harv.L.Rev. ("The procedures for absence of traditions during five statistical increase occurred the last pro- Smith, regulating judicial legislative notice of facts years & time Herbert L. Jr. frame. dangerous sitting judge with a free- vides Phillips Outright, Thinking Change Ille- About Barron, States, 1963-1983, dom.’’); A. S. Miller & Jerome gitimacy Arthur Ratios: United Court, (1988). System, Supreme Adversary The fertility The Demography sta- Adolescent A covering Justices: Prelim- all between the Flow tistics United States women of Information inary Inquiry, ages rapid 1235 n. and 19 indicate a recent of 15 also Va.L.Rev. (and ("Given (1975) limitations fre- illegitimacy. The birthrate the inherent increase in overall unreliability) data quent an- of social science some declined from 89.1 for American adolescents adequate process challenge is essential.... per 1000 to 51.1 nual births women up comes per Worst of all is where Court in 1987. births Statistical Handbook own supra data based on its research counsel at 122. While birth- Family, American it.”). overall, challenge opportunity illegitimacy has ris- have no rates have declined [OJnly they logically possibly sophisticated more than infor- if are found to be well-reasoned, upon persuasive paying mation which the court relies. regard precedent policies and the un- derlying specific guarantees, constitutional VII. State Constitutionalism persuasive weight may they properly claim and the New Federalism interpreting guideposts when counter- This is not the first time this court has part guarantees. state accepted the of former Justice Wil invitation Constitutions, supra.at (emphasis State liam Brennan to read into our state constitu added). Brennan’s Justice enthusiasm “rights” Supreme tion Court has necessarily guarantees state constitutional recognize in declined to the United States scholarly writings, confined to as the Su Garcia, Davenport v. Constitution. See preme usually will decline to reverse (Tex.1992) 4,12 (citing n. 20 n. 53 independent cases decided on state Brennan, Jr., Rights The William J. Bill grounds.23 Some state courts have nonethe and the States: The Revival State Consti Developments less heeded his call. See Rights, tutions as Guardians Individual Interpretation the Law — The State Consti (1986); William J. N.Y.U.L.Rev. Rights, 95 Harv.L.Rev. tutional Brennan, Jr., State Constitutions and the Gardner, A. The Failed Discourse James Rights, Individual 90 Harv. Protections of Constitutionalism, 90 Mich.L.Rev. 761 State State [hereinafter L.Rev. (1992). ]). agree I Constitutions While that we independent ques must and should decide supreme survey In a state court 2,800 tions of Texas constitutional law when necess relying independent state consti- decisions ary,22 presents no so. this case reason do grounds, political tutional two scientists re- cently judges nullify discovered state Brennan delivered his now Justice they statutes in these cases at twice the rate plea famous for state courts to look to their Constitution. do so under United States indi- own constitutions as a means to extend Traut, Craig F. Ann State Emmert & Carol rights beyond requirements vidual Constitutions, Courts, State Con- United States Constitution. See State Sys- Policymaking, 16 The Justice Judicial stitutions, supra at 491. While state consti- The authors observed tem J. provisions express contain for the tutions “[sjtate evidently more activ- courts are protection rights not of individual found challenges are made on state ist when the Constitution, see, e.g., Tex. the United States grounds.” Id. at 42. constitutional Const, I, (equal rights article section 3a activism, the authors cause of such conclude years guarantee), and state courts have for ed, supreme courts are more is that state applied provisions state using constitutions “comfortable their state provisions analogous federal constitutional laws,” is no well aware that there to overturn differently history and lan- for reasons of the United States Su- chance reversal guage, argue that federal the new federalists Id. at preme Court such cases. provisions interpretations court of identical courts, emerged in like this pattern A cases binding upon state never be one, portions in which the court “rediscovers” persuasive: analogous public of the United States example, and an section 22. For in the area of school VII, analogue unambiguously may obviously to art. finance there is no federal Constitution Edgewood § Indep. of the Texas Constitution. See compel reach a result that differs this court to (Tex. Kirby, 111 S.W.2d 391 Sch. Dist. Supreme prior opinion Court. from a However, of the 1989). Similarly, express Constitution the Texas circum face of these we do not equality ly rights, such as under the identifies case. stances in this I, 3a, law, § writ art. the to the Const, Tex may suspended, corpus of habeas not be —which Annotation, Rydstrom, What Con- F. 23. See Jean invasion of the even in cases of rebellion or Independent Adequate State Substan- stitutes I, compare, § public safety, Tex. art. Const, Precluding Supreme Review Court tive Ground I, right against § the out U.S. art. Const, Question, 59 Federal State Court Decision on I, Finally, lawry, § differ Tex. Const art. (1980). L.Ed.2d 924 Constitution ences between a section of the Texas case, employing courts correspond to federalism. Until that of the Texas Constitution to have refused process Constitution. substantive the United States sections negative doctrine —a from a pattern has main attributes. This three transform body First, with ignore an immense that interferes this court will on action check state authority relating analo- to the doc- liberty of decisional an affirmative individual —into developed over dec- gous provision, federal exer- government to requires trine courts, and insist on federal provide ades some power individuals its to cise largely ... “traversing uncharted terrain remedy or relief: there when state] constitution” —even [our Pro- language the Due [Njothing in the federal an basis under the is established to requires State itself cess Clause Daven- for the same result. See constitution life, property of its liberty, and protect the (Hecht, J., at concur- port, 834 S.W.2d by private actors. invasion against citizens Second, to be ring). when there turns out phrased as a limitation is The Clause authority to the court turns little state forbids power act.... It the State’s regards the fed- precedent, court federal deprive individuals State itself merely “helpful” eral court authorities as life, pro- property without “due liberty, or way previous- if we in no authoritative —even fairly language its cannot cess law” but ly interpreted provision state to be coex- our obli- impose an affirmative extended to at provision. with the federal See id. tensive those gation on the state to ensure troubling, and most the state 33-35. Third through harm not come to interests do invariably provision constitutional is asserted sup- history means. Nor does some other to be somehow and broader different from reading con- expansive such port an virtually provision. than the identical federal text.... stitutional See, 23; e.g., parte n. Ex S.W.2d recognized that Due have [0]ur cases Tucci, (Tex.1993); 859 S.W.2d 7-8 Daven- generally no affir confer Process clauses 8-9; port, 834 also State Con- see aid, governmental even mative stitutions, supra at 495. life, necessary to such aid is secure when metaphor frequently A is invoked to de- liberty, property interests which The scribe effect new federalism: may deprive the in government itself provides States a “floor” United Constitution dividuals. may for individual below states County Dept. DeShaney Winnebago drop because the decisions of the United 195-96, Servs., U.S. 109 S.Ct. Social interpreting doc- States (1989); L.Ed.2d states; apply conversely, ument to the — City Heights, also Collins v. Harker provides “ceiling.” Texas Constitution U.S. -, -, 1061, 1068-70, See, Kahn, e.g., Interpretation Paul W. McRae, (1992); Harris v. 117 L.Ed.2d Constitutionalism, Authority in State (1993). ease, In this Harv.L.Rev. Roe, 464, 97 Maher v. S.Ct. however, gone court far that so 53 L.Ed.2d metaphor longer applies. reason grants Larry right is for this the result obtained when combin- The court establish ing relationship” substantive due the new “a with his child.24 The today’s opinion sophistic It is to reconcile initial characterization of difficult the court's "denying" Larry opportuni typical opinion declaring K. "the effect of an a stat the statute as Marbury ty parental rights.” "right court to ... claim A ”[U]nder ute unconstitutional: case; my something calling opportunity,” knowledge, pass un decides it does not a statute Collins, precedented purview law. all for obedience within the — at -, 1068-70; De rule that declared." Lawrence Tribe, American 1003; (2d 1988) Shaney, (citing 489 U.S. 109 S.Ct. at Law Her ed. Constitutional McRae, Constitution, Wechsler, Harris U.S. bert The Court and the (1965)). 65 L.Ed.2d 784 Simply be Colum.L.Rev. may Larry cause the court has declared that the state The court holds that has a "constitution nothing deprive Larry rights ally protected" right, K. of do to should that two sections any Family not mean that the state must now take action Texas Code unconstitutional. This part, problem nobody on his behalf. stems from could mean that can sue to establish thing prevented Larry that establishing process, entirely stantive due it is unclear relationship this before the court took action how the Court would treat such Thus, was the family. resistance of J.W.T.’s potential Supremacy conflicts under process Const, there could have been no due viola- Clause, VI, art. cl. 2. However, tion. creating in right, this new implementation Unrestrained of substan- the court given effect the State of process provides tive due the courts with no Texas a police power mandate to exercise its guidance “right” paramount. as to which is Larry’s tests, require paternity behalf —to text, Once freed from the constitutional to order custody visitation or even if it is longer guidance. courts can no look there for so, proper to do use full to enforce- precisely What will remain is what Justice apparatus ment guarantee of the state to White City warned about Moore v. East Larry’s rights just as the state would enforce Cleveland, parent’s right. other (1977): 1937, 52 L.Ed.2d 531 The court accords no value to the state’s protecting interest only judicial families. The There are risks when the branch countervailing interest the court acknowl gives protection enhanced to certain sub- child, edges is that of the which the court guidance stantive without liberties says paramount, but the ultimate resolu specific provisions the more of the Bill of tion seems to me to be irreconcilable with Rights. history As the of the Lochner era this assertion. Substantive due ad demonstrates, there is reason for concern particular point vances no only of view—it judicial lest the limits to such inter- frees court from constitutional restraints so predilections vention become the of those identify that it can protect any “right” happen who at the time to be members of desires, contract, right whether it be the [cjourt. history this That counsels caution visitation, right right or the to be free and restraint. from visitation. Under this form of unre putative standing Now that the father has process, stricted substantive due the transi “relationship” biological establish a with his adjudication legislation tion from is seam child, seeking are minimal to his barriers identify virtually any less. The court can 1) outright possession through of the child right require the state to it. enforce 2) 3) custody proceedings, rights, visitation danger presents is that the United authority participate to direct or at least longer provide States Constitution will no 4) religious training, in the child’s moral and “floor” if this court identifies “constitutional 5) estate, management of the child’s access to rights” on behalf of some individuals that 6) earnings, rep- the child’s services and require the state to take affirmative action legal proceedings. resentation of the child infringes that rights on the of others. imagination It takes little to understand the generally Albert H. Kauffman & Carmen havoc the court’s will wreak on the decision Rumbaut, Applying Edgewood Maria v. Kir life of a child when an outsider to the marital by Analysis Rights Fundamental under Mary’s suit, Constitution, paternity, files establishes L.J. 69 St. lawyers proceed litigate (perhaps until Pnmeyard Shopping Center v. cf. Robins, 74, 82-85, majority), the child reaches the most inti- traditionally mate and emotional decisions (raising “ceil ing” by parents family. expressive rights under made on behalf state consti optimistic may property tution There is little reason to be about rights lower “floor” for protection). “parents” under the Because state courts have here the manner variety presented legislative tofore avoided the of sub circumstances in this case will re- parenthood rights legisla legislature (including until does re visitation less of what the passes granting Larry pealing altogether), ture a new the Texas statute Code right, perhaps may guarantees biological fathers the Constitution visitation, legislation paternity, sue for his in the absence of to establish and even recognizing custody interpretation, rights. howev fathers of children This latter er, couples contrary any prior practice born under the to married to sue. On hand, regard the other this case mean that constitutions of Texas or the United States. countervailing state certainly substantial almost conflicts will solve the in these statutes. reflected interests arise. reasons, respectfully dissent. I For these says: decision Finally, “[0]ur the-court jeopardize adoption process.” does not Hope Cottage, n. 26.

Inc., Home, Gladney Methodist The Home, Center, Inc., Pope all of and Lena appeared

whom have as amici curiae this provide adoption

appeal all whom state, disagree.25 in our These

services adoption agencies argue inter- best CORPORATION, MOTORS KAWASAKI compel a different ests Texas children Heavy Industries, U.S.A. and Kawasaki case, this that under this outcome in Petitioners, Ltd., impediment is no a court’s decision there asserting rights to a putative father THOMPSON, Individually and as adopted. posi- Kim Y. Yet the

child who been Thompson, E. Friend of Matthew a foot- Next of these amici are dismissed in tions Minor, Representative and as Personal note. Thompson, Eric of John of the Estate Deceased, Respondent. VIII. Conclusion No. D-2245. appellate An court’s its identification Supreme of Texas. opinion legal of an rule or method established explanation analysis, and the court’s March applied how that rule method is in ease decision, among to reach a most basic judicial decisionmaking pro-

attributes of followed, process permits

cess. If others independent scrutiny perhaps apply A. Wasser-

disinterested criticism. Richard strom, The Judicial Decision: Toward

Theory This of Justification imposes

process discipline also desirable

judges, requiring explain us to an an- how rule, facts, logically applied given

nounced Depending

supports judgment. the court’s succeeds, justification well this

on how public detracts from the

either adds role in

perception legitimacy court’s government. republican

our form however, case, guise

In this under the interpre- independent state 1)

tation, contrary pre- disregards the court Court; States

cedent the United

2) anal- our traditional constitutional eschews

ysis a new constitutional and creates Con- found in the text of

nowhere 3) history; or its revives substantive

stitution arbitrary particularly new 4)

form; identify and consider fails supra

25. See note

Case Details

Case Name: In the Interest of J.W.T.

Court Name: Texas Supreme Court

Date Published: Mar 30, 1994

Citation: 872 S.W.2d 189

Docket Number: D-1742

Court Abbreviation: Tex.