*1 D. H. GERALD MICHAEL еt al. CALIFORNIA, OF APPEAL OF APPEAL FROM THE COURT APPELLATE DISTRICT SECOND June 1988 Decided Argued No. 87-746. October
Ill *3 argued appellants. the cause for Robert A. W. Boraks appellant him With on the briefs for Michael H. were George and Joel S. K. Kaufmann, Taskier, Ronald Paul R. Henry, appellant Leslie Ellen Shear filed briefs for Aaronson. Victoria D. appellee. argued
Larry the cause for With M. Hoffman H. the brief was Glen Schwartz.* him on judgment announced the Court Scalia Justice joins, opinion, in which and delivered The Chief Justice which Justice footnote 6 of all but O’Connor join. Kennedy Justice woman liv- law, a child born to married California
Under presumed ing be a the mar- child of with her husband 1989). (West § Supp. riage. Ann. 621 Cal. Evid. Code only by legitimacy presumption be rebutted the hus- only Ibid. in limited circumstances. wife, band or and then appeal presents the claim that this The instant infringes upon process rights of a man who wishes the due paternity another born to the wife of of a child establish upon infringes the constitutional and the claim that it man, right with her natural to maintain a of the child father.
I extraordinary. hope, are, we must The facts of this case Vegas, May D., an inter- Nevada, in Las Carole 9, 1976, On top in French oil D., executive model, and Gerald national couple company, established a home married. The were they Rey, Playa as husband in which resided California, del country on *4 was not out of the or the other and wife when one in involved 1978, Carole became In the summer business. Septem- neighbor, In Michael H. with a adulterous affair an who was born on child, D., Victoria a ber she conceived May the birth cer- listed as father on was 11, 1981. Gerald always as his out to the world held Victoria tificate and has the National Council for Chil- *Michael L. Oddenino filed a brief for Rights as amicus curiae urging reversal. dren’s Howarth, Powell, Hershkoff, Ste- A. Helen Hoffman, John Paul Joan Pinzler filed a brief for the American Katz Shapiro, ven R. and Isabelle curiae. et al. as amici Union Foundation Civil Liberties daughter. delivery after child, Soon however, Carole might informed Michael that she he believed be the father. years In the three of her life, first Victoria al- remained ways variety quasi- with Carole, but within found herself family units. In October Gerald to moved New York City pursue interests, his business but Carole chose to remain in California. At the end that month, and Carole Michael had blood tests Victoria, themselves and which probability showed a 98.07% that Michael was Victoria’s January father. In 1982, Carole visited Michael in St. primary Thomas, where his business interests were based. There Michaelheld Victoria out In March, child. how- ever, left Carole Michael and returned California, where yet up she took residence with man, another K. Scott Later spring, again in summer, and Carole and Victoria spent City, time in with Gerald New York as well as on vaca- they Europe. in tion In fall, returned to Scott California. attempts
In November rebuffed in his Vic- visit Superior toria, Michael filed filiation action California paternity right Court to establish his and In to visitation. appointed attorney guardian March 1983,the court ad represent litem to Victoria’s interests. Victoria then filed cross-complaint asserting psy- that if she had than more one chologicalor father, she was entitled to maintain her defacto relationship, rights, filial with all of the attendant duties, obligations, May with both. In 1983, Carole filed a motion summary judgment. During period, for this from March through July again living 1983, Carole was with Gerald August, New York. however, she to California, returned again became involved once with Michael, and instructed her attorneys summary judgment to remove the motion from the calendar. ensuing eight
For the months, when was Michael not in St. apart- Thomas he lived Carole and Victoria Carole’s Angeles daughter. ment Los and held Victoria out as his April *5 signed stipulation In 1984, Carole and Michael that Michael father. Carole left natural Michael was Victoria’s attorneys her not to however, and instructed month, the next stipulation. 1984, Carole reconciled with In June file the they joined York, where now live him in New and Gerald born children since into and two other with Victoria marriage. through guardian May Victoria, her 1984, Michael and pendente rights sought Michael lite. visitatiоn for litem,
ad determining would in Vic- whether visitation be To assist appointed psy- Superior Court interests, toria’s best chologist Gerald, Michael, and Carole. Victoria, to evaluate psychologist cus- retain sole recommended that Carole The tody, contact with Vic- continued but that Michael be allowed pursuant schedule. The court to a visitation toria restricted provided with limited that Michael be concurred and ordered privileges pendente lite. visitation intervened in the ac- 1984,Gerald, who had October On ground summary judgment on the under moved for tion, § issues of fact as to no triable Evid. Code 621there were Cal. provides paternity. that “the issue of This law Victoria’s impotent cohabiting who is not husband, with her wife conclusively presumed mar- be a child of the sterile, 1989). 621(a) (West § Supp. riage.” Ann. Evid. Code Cal. only by if tests, blood but rebutted years two from the made, within tests is for such a motion by if natu- or, birth, the husband child’s either date of the by paternity, acknowledging filed an affidavit ral father has 621(c) (d). §§ the wife. having January submit- that affidavits found 28, 1985,
On demonstrate that and Gerald sufficed ted Carole conception cohabiting and birth and Gerald two were Superior granted impotent, Court sterile nor was neither rejecting summary judgment, Michael’s for Gerald’s motion §621. constitutionality challenges Victoria’s continued visitation for denied their motions The court also pending pro- appeal §4601, which Code under Cal. Civ. grant may, discretion, “reasonable in its that a court vides *6 116
visitation to . . rights any person ... . having (West §4601 welfare of the child.” Civ. Ann. Cal. Code 1989). It found Supp. that such allowing visitation would of Legislature by “violat[e] intention impugning of the integrity family unit.” to Supp. Juris. State- App. ment A-91. alia, inter
On asserted, Michael appeal, that the Superior §621 Court’s of had application violated procedural substantive due process Victoria also rights. raised due de process statute, to the challenge her seeking preserve with Michael well as with Gerald. She facto contended, § 621 addition, that as allows the husband and, at to a extent, least limited the mоther, child, but not the rebut it legitimacy, violates the child’s right equal protection. Finally, she asserted right to continued visitation with Michael §4601. under After submission briefs and a hearing, Court California Appeal affirmed the of the judgment Court and Superior up- held the of the constitutionality statute. 191 Cal. 3d App. (1987). 995, 236 Cal. 810 It Rptr. interpreted that judg- ment, moreover, as denied having permanent visitation rights under §4601, regarding that as the implication of the Supe- rior Court’s upon § reliance 621 and upon an earlier California case, Vincent B. Joan R., v. 126 Cal. 3d App. Cal. Rptr. (1981), dism’d, U. appeal S. 807 which had held that once an assertion of biological paternity is “deter- mined to be § legally impossible” under visitation against the wishes of the mother should be § denied under 4601. 126 Cal. 3d, 627-628, App. 179 Cal. Rptr., 13.
The Court of Appeal denied Michael’s and Victoria’s peti- tions for and, rehearing, July 30, 1987, on the California Supreme Court denied discretionary review. On February 29, 1988, we noted probable jurisdiction present ap- peal. 485 us, U. S. 903. Before Michael and Victoria both raise equal protection and due process We challenges. do not reach Michael’s equal protection claim, however, as it Bankers below. nor See passed upon neither raised was Casualty Crenshaw, (1988). Co. & Life S. 71 U. (—I
I—I this subject litigation statute California old. California Code of century more than is, substance, § enacted in 1962(5), provided “[t]he Proc. Civ. *7 husband, with who her is not cohabiting impo- issue of a wife 1955, be In legitimate.” is to tent, indisputably presumed adding the statute the by preface: the amended legislature of law.” other 1955 Cal. any provision “Notwithstanding 1965, §3. In when California’s Evi- Stats., 1835, ch. 948, p. § 621, the was codified as dence Code was statute adopted, of the word change replacement no substantive except with 299, ch. Stats., 1965 Cal. “conclusively,” with “indisputably” 1297, adopted 1308. When California Uniform §2, pp. Stats., 1244, ch. 3196- §11, 1975 Cal. Act, pp. Parentage seq. (West et §7000 Ann. codified at Cal. Civ. Code 3201, the word §621 by replacing “legitimate” it amended 1983), adding of marriage” by “a child phrase with and cohabitation as a predicate nonsterility nonimpotence Stats., §13, ch. 1244, 1975 Cal. presumption. for the In amended the statute legislature again 3202. p. to introduce blood-test opportunity the husband to provide Stats., Cal. presumption, of evidence rebuttal it to in 1981 amended p. 4433; provide ch. Stats., 1981 Cal. ch. such an opportunity, mother form, the substantive provisions 4761. their present p. follows: statute are as of the of notice motion for blood
Ҥ 621. of the marriage; Child tests
“(a) (b), in subdivision the issue provided Except husband, her who is not impotent with cohabiting a wife to be a child of the conclusively sterile, presumed marriage.
“(b) Notwithstanding provisions (a), subdivision if the court finds that the conclusions of all the experts, as disclosed the evidence based by blood upon tests per- formed pursuant with Chapter (commencing Section 890) of Division 7 are that the husband is not the father of the child, the question paternity husband shall be resolved accordingly.
“(c) for The notice of motion blood tests under subdi- (b) vision raised may by husband not later than years two from the child’s date of birth.
“(d) The notice of motion for blood tests under subdi- (b) vision be raised the mother of the child not later than two from the years child’s date of birth if the child’s father has biological filed an affidavit with the court of the child. acknowledging paternity
“(e) (b) provisions subdivision shall not apply any case within the coming provisions of Section 7005 of the Civil Code [dealing artificial or to insemination] any wife, case which the with the consent of the hus- *8 band, conceived by means of a surgical procedure.”
Ill We address first the claims of Michael. At the outset, it is to necessary clarify what he sought and what he was denied. California law, itself, like nature makes no provision for dual fatherhood. Michael was declared the father of to be seeking Victoria. The immediate benefit he evidently sought to ob- tain from that status was visitation See Cal. rights. Civ. (West 1983) §4601 Code Ann. (parent has statutory to right visitation “unless it is shown that such visitation would be child”). detrimental to the best interests of the ifBut Mi- chael were successful declared the being father, other would rights follow—most the to be con- importantly, right sidered as the parent who should have custody, Cal. Civ. (West § Code Ann. 4600 1983), a status which the “embrace[s] sum of parental rights to the respect child, of rearing the including care; child’s the to right the child’s services and earnings; right right the to direct the child’sactivities; the to regarding control, education, make decisions and health right, duty, prepare and the as well as child; of obligations, teaching child for additional which includes the religious good standards, beliefs, moral and elements of citi- (C. Family zenship.” Markey §60.02[l][b] 4 California Law 1987)(footnotes omitted). parental rights, including All ed. automatically by denying visitation, were denied Michael sta- § places the father. tus as While Cal. Civ. Code Ann. 4601 it discretionary power within the of a court to award visitation rights nonparent, Superior to a here, Court affirmed Appeal, Court held that California law denies visita- against putative tion, mother, wishes of the to a father § prevented by establishing pater- who has been 621 from his nity. App. Rptr., 191 Cal. 3d, See 236 Cal. at 821, citing App. B. v. R., 3d, Joan Cal. Vincent 627-628 Rptr., 179 Cal. at 13. challenges
Michael raises two related constitutional- §621. ity requirements proce- First, he asserts that process prevent terminating dural due the State from his liberty with his child without af- fording opportunity paternity him an demonstrate his an evidentiary hearing. We believe this claim derives from a misconception fundamental of the nature of the California § phrased presumption, statute. While 621 is in terms of a implementation rule of evidence is the of a substantive except rule of law. California declares it to be, limited paternity purposes irrelevant circumstances, for whether a during, existing marriage child conceived into, and born begotten by was someone other than the husband and had prior relationship Appeal phrased with him. As the Court of it:
“ presumption actually ‘The conclusive is a substantive upon by Legisla- rule of law based determination the overriding policy, given ture as a matter of social that certain between the husband wife, responsible husband is to be held child, for the and that 120 integrity family im- unit should not be App. Rptr.,
pugned.’” 236 3d, 191 Cal. Cal. at supra, quoting B. 179 R., Vincent v. Joan Rptr., Cal. at 10. presumption only expresses
Of the conclusive not course policy excluding in- it, State’s substantive but also furthers quiries paternity that would be destructive of into the child’s family privacy.1 integrity and illegitimate “irrebut-
This Court has struck down as certain g., Stanley presumptions.” See, Illinois, table e. 405U. S. (1973); (1972); 412 441 Kline, Vlandis v. U. S. Cleveland (1974). LaFleur, Board Education v. U. S. Those of holdings upon procedural process. however, rest due not, did presumption per A does, course, conclusive foreclose the against demonstrating, par son whom it is invoked from proceeding, applying presumption him ticularized that governmental policy will in fact further the lawful not presumption designed to effectuate. But the same can be general any legal classifications, said rule that establishes presumption whether framed respect terms of a or not. this says difference a rule which there is no between irrebuttably presumed the marital husband shall be to be the says a rule which that the adulterous natural fa father, legal recognized ther father. Both shall not be as the rules deny hearing whether, someone Michael’ssituation a on particular policies case, circumstances of his California’s rights. giving parental Thus, would served him best be many g., observed, see, Bezanson, commentators have e. Thoughts Emerging Presumption Some on the Irrebuttable (1974); Realigning Nowak, L. Doctrine, 7 Ind. Rev. a natural father to In those circumstances which California allows woman, legitimacy a child born to a married rebut sterile, e. where the husband is impotent or where the husband and g., likely already cohabiting, it is more that the husband wife have not been his, likely paternity hear knows the child is not and thus less apparently exclusive marital disrupt will an otherwise harmonious and ing relationship.
121
Equal
the Standards of Review Under the
Protection Guar
antee-Prohibited, Neutral, and Permissive Classifications,
(1974);
62 Geo. L.
J.
1102-1106
Note, Irrebuttable
Presumptions:
Illusory Analysis,
An
27 Stan. L. Rev. 449
(1975);
Presumption
Note, The Irrebuttable
Doctrine in the
Supreme
Court, 87 Harv. L. Rev. 1534
our “irre-
presumption”
ultimately
analyzed
buttable
cases must
as
calling
question
adequacy
procedures
into
not the
but—
involving
like our cases
classifications framed in
terms,
other
g., Craig
(1976);
see, e.
Carrington
Boren,
v.
429 U.
190
S.
(1965)
adequacy
v. Rash,
Michael contends as a matter of substantive due parental relationship that, because he has established protection Victoria, of Gerald’s and Carole’s marital union is support an insufficient state interest to termination of that relationship. argument predicated This is, of course, on the constitutionally protected liberty assertion that Michael has a with Victoria. part jurisprudence It is an established of our constitutional “liberty” that the term in the Due Process Clause extends be- yond physical g., freedom from See, restraint. e. Pierce v. Society (1925); Meyer Sisters, 268 U. S. v. Nebraska, (1923). meaning 262 U. S. Without that core textual defining scope limitation, of the Due Process Clause giving “has at times been a treacherous field Court,” for this only judicial “reason for concern lest the limits to . . . inter- predilections happen vention become the of those who at the time to be Members of this Court.” Moore v. East Cleve- (1977). land, 431 U. S. The need for restraint has cogently expressed by been Justice White: ample precedent for creation of
“That has the Court rights repeat lead should not it to new constitutional *11 including process Judiciary, Court, The is will. this at illegitimacy and comes nearest to the most vulnerable having judge-made constitutional law when it deals with language cognizable in the or even little or no roots Realizing present design that the of the Constitution. represents Due a Process Clause construction of major judicial gloss on its as well as on the antici- terms, pation Framers . be ex- , of the . . the Court should tremely further substantive to breathe still reluctant so as strike down the Due Process Clause to content into by city promote adopted legislation to its wel- State or unavoidably Judiciary so, it fare. does Whenever pre-empts part governance of for itself another express authority.” country without constitutional opinion). (dissenting supra, 544 Moore, guide attempt interpretation Clause, limit and In an of merely as we have not that the interest denominated insisted (a “liberty” concept that, isolation, is be “fundamental” traditionally objectify), also it an interest hard to but by society.2 put protected Proc- it, we have the Due our As only protections those “so in the ess Clause affords rooted people as to be ranked as traditions and conscience our Snyder v. 291 105 Massachusetts, fundamental.” U. S. J.). (1934)(Cardozo, Our cases reflect “continual insistence teachings history recogni- upon respect [and] for the solid 2 by not what has in an in We do understand mind Brennan Justice society traditionally important pro has thought terest “that . . . without Post, protection tecting it.” at 140. need not take the form of provision statutory explicit guarantee, but it must at least constitutional case) (all necessary present to decide the societal tradition exclude denying why our enacting laws Nor do we understand interest. traditionally practice limiting protected the Due Process inter Clause 141. redundancy,” post, purpose turns the “into a Its is to ests Clause important generations lightly casting future from aside traditional prevent to enable this Court invent new ones. values —not
123 society. underlie our ...” Gris basic values that tion of the (1965) (Harlan, J., 501 Connecticut, 381 U. S. wold v. concurring judgment). liberty interest be rooted that the asserted
This insistence history evident, elsewhere, as our cases and tradition is parental rights. according protection to certain constitutional Stanley 405 Illinois, case of v. Michael reads the landmark (1972), subsequent Quilloin v. cases of S. 645 U. (1978), Mohammed, v. Walcott, Caban 434 U. S. Robertson, Lehr U. S. U. S. (1983), liberty establishing interest is created as that a plus parental biological relation- fatherhood an established present ship-factors case well. We that exist those cases. As we view think that distorts the rationale of *12 upon they upon factors but the them, rest not such isolated sanctity strong respect would not be too a historic indeed, — relationships traditionally to the that de- accorded term — unitary family.3 Stanley, supra, velop within the See at supra, supra, Caban, 389;Lehr, Quilloin, 254-255; 651; supra, Stanley, example, In we the de- at 261. for forbade family upon when, a the death of the struction of such sought to remove children from the mother, the State had custody supported had lived with and them of a father who years. As Powell stated for and their mother for 18 Justice supra, plurality Cleveland, in Moore v. East at 503: “Our only “pinched conception Brennan a of ‘the fam Justice asserts ” Post, Carole, Michael, protection. and Victoria from ily’ would exclude family respect in disagree. The unit accorded traditional our at 145. We “unitary family,” typified, of society, which we have referred to as the course, family, of unmarried by the marital but also includes household Perhaps concept expanded can be even be parents and their children. this, traditionally respected re yond but it will bear no resemblance any significance lationships will thus cease to have constitutional —if —and far to include the established between it is stretched so lover, woman, child, sojourn during a 3-month in St. her and their married when, Thomas, period happened if to be during subsequent 8-month he or Angeles, stayed with her and the child. in Los he sanctity protects the that the Constitution decisions establish family is family of the precisely the institution because history deeply tradition.” Nation’s in this rooted present reduces to legal case in the issue Thus, persons situation between whether family protected treated as has been Michael and Victoria society, on practices or whether of our unit historic under the protection. special We any accorded it has been other basis quite to the fact, impossible that it has. to find think it family protected marital contrary, have traditions our theirs) they acknowledge (Gerald, to be child Carole, and the against Michael asserts.4 the sort of claim principle legitimacy presumption was a fundamental Bastardy 1 Adulturine Nicholas, H. of the common law. (1836). Traditionally, rebutted could be incapable procreation only by proof was that a husband period. during the relevant his wife access to had had no Legibus (citing De et Consuetudinibus Bracton, at 9-10 Id., p. p. p. 32, ch. Angliae, ii, ch. 6; bk. i, bk. ch. (1569)). only explained could Blackstone, nonaccess As England kingdom proved be out of “if the husband quatuor loosely phrases (or, extra it, as the law somewhat seas]) [beyond . . .” nine months. for above maria the four 1826). (J. Chitty And, ed. 1 Blackstone’s Commentaries England here, “neither law both under the common *13 4 liberty determining whether a inter that in insists Brennan Justice isolation, in with Victoria at Michael’s est exists we must look was married that Victoria’s mother the circumstance without reference to conceived, woman and and that that the child was to someone else when post, at 145-146. the child as their own. See husband wish to raise her the procedure looking of at compels strange this imagine what We cannot in from its subject liberty interest isolation assertedly the of a act which is liberty inquiring whether there is a like upon people other effect —rather happens to involve its dis the case at hand firing gun a where interest posi body. logic The of Justice Brennan’s person's charge into another by rape, begotten Victoria if Michael had that tion leads to the conclusion liberty his way possession of a affect fact would no that relationship with her. prove access or [could] witness to wife be a nor
husband Relations Law of the Domestic Schouler, J. nonaccess.” (3d 1882); A Crane, Cen- p. F. R. & ed. Graveson §225, (1957). primary p. tury Family 1857-1957, Law: underlying restric- policy severe the common law’s rationale appears have been of thе tions on rebuttal illegitimate, declaring Schouler, see children aversion to Governing Grossberg, supra, M. 306-307; §225, rights thereby depriving of inheri- them of Hearth American on Kent, Commentaries succession, and J. tance likely making A them wards of the state. and *175, Law promoting secondary policy was the interest concern tranquillity “peace Schouler, families,” and of States supra, quoting Status, Traité des Boullenois, §225, facilitating obviously by p. goal impaired bk. a that is against asserting their children suits husband and wife bastardy illegitimate. though, became less laws are Even States] [England “[j]udges in and the United harsh, both range acceptable gradually of evidence widened the placed spouses, the 'four restraints on could be offered strong against rul- law retained a bias ...[,] seas rule’ illegitimate.” Grossberg, ing children of married women supra, at 202. nothing in the sources, in the older nor
We have found power addressing specifically the of the natural cases, older parental rights into a wom- over a child born to assert father marriage existing it Mi- man. Since is with another an’s (at power where that such a least burden to establish chael’s has established the natural father child) deeply as to be a within our traditions embedded so might right, defeat his lack of evidence alone fundamental — times that even in modern But the evidence shows case. rigid protection marital when, noted, as we have ability respects family relaxed—the been has other paternity position person has not been to claim in Michael’s example, acknowledged. generally 1957annotation on For legitimacy may dispute presumption subject: “Who *14 during child conceived or wedlock,” born R. A. L. 2d 572, California) (including shows three States with statutes limit- ing standing to the husband or and wife their descendants, (Louisiana) limiting one State with a statute it to the hus- (Florida Texas) judicial band, with two States and decisions (Illinois limiting standing husband, to the and two States and York) judicial denying standing New with decisions even to single specifically the mother. Not a decision is set forth ac- cording standing “express to natural father, indica- any upon standing tions of the nonexistence . . . limitation” only jurisdictions.” were “in a found few at 579. Id., posi Moreover, if even it were clear that one Michael’s generally possesses, generally always possessed, tion and has standing challenge legitimacy, the marital child’s that would still not establish Michael’s case. As noted earlier, pronounce what is at issue here not is entitlement to a state begotten by ment that Victoria was Michael. It no con right ceivable denial of constitutional for a State to decline to legal consequence hinges upon declare facts unless some requested right declaration. What Michael asserts here is a thereby to have himself declared natural father to ob parental prerogatives5 tain establish, What he must there society traditionally fore, is not that our has a allowed natural paternity, father in his circumstances to establish but that it traditionally parental rights, has accorded such a father or at traditionally least not has denied them. Even if the law in always all had States been the entire world could chal Brennan, According to Justice Michael not does claim—and order prevail right parental need not claim—a here substantive maintain Victoria, merely right but to “a hearing on the issue” Post, paternity. his n. challenge 12. “Michael’s . . . does told, depend,” ability ultimately not we are his “on to obtain visitation Post, rights.” depend upon ability at 147. To sure it does not his ulti mately rights, surely depends upon to obtain those but it asserting rights, precisely claim to which is those what Justice BRENNAN denies. concept “right We grasp hearing” part per cannot to a on of a son hearing assertedly who claims no substantive entitlement will vindicate.
lenge as to the marital and obtain a declaration father, was natural that would not Michael’s who the advance ultimately purposes of Thus, irrelevant, isit even for claim. alleged determining sub carretil: social attitudes the towards present right asserts, in num that the Michael law stantive including appears to thе natural of States allow ber father — has not established father who the natural power pre to rebut the marital child—the theoretical Rebutting Presumption: sumption, A Note, the Marital see Relationship Developed Test, 369, 373 SS Colum. L. Rev. (19SS). is award What counts whether the States fact rights parental child of a to the natural father substantive into, that within, and born an extant marital union conceived single child. We are not aware of a embrace the wishes to new, This stuff of case, that has done so. is not the old or rights qualifying liberty are interests which fundamental made.6 methodology using our tradi Bkkxnan criticizes historical Justice father, relating rights to the of an adulterous natural specifically
tions parenthood “whether is an interest generally more Inquiring rather than Pont, at 139. historically protection.” received our attention and that lias methodology is that this to no basis for contention seems us 'Hiere Hardwick, “nove[l|," 478 U. S. example, For in B owersv. at 140. post, (1986), was rati Fourteenth that at the time the Amendment we noted laws, sodomy all 50 of the criminal that ó of the 37 States had fied all but 19(31, and the District of prior to and that States had such laws States them; record, from that re and we concluded to have Columbia continued conduct, claim that a very aspect that “to garding specific of sexual that history ‘deeply in this Nation’s right in such conduct is rooted engage to best, is, liberty’ ’implicit concept in the face or ordered and tradition’ Wade, Id., spent we about In Roe v. 410 U. at 191. S. tious." longstanding was a negating proposition that there opinion a fifth of our Id., at 129-141. proscribing laws abortion. tradition of societal why, having rejected upon our focus We do understand not whose child rights father’s vis-a-vis a the natural regarding tradition man, to Justice Bkennan would choose to another mother married not Why category should the relevant upon “parenthood.” focus instead "family rela- relationships”; “personal or general perhaps be even more — general”? Though the dis- “emotional attachments'in even tionships"; or do; selеct, it We refer would we generality for level of sent has basis no 12S involving Robertson, a case a natural Lehr v. father’s
attempt adoption block his child’s unwed mother’s significance “[t]he husband, new we observed of the bio- logical oppor- the natural connection is that it offers fathér an tunity develop possesses no other male specific protecting, most level at which a relevant tradition deny- If, to, right ing protection can be identified. asserted for example, tradition, way, regarding either there were no societal the rights of the conceived, consult, child would natural father of a adulterouslv we have to *16 (if from, possible) regarding and the traditions reason natural fathers in tradition, specific general. But there is such a more unqualifiedly and it protection parent. denies to such a One would think that Justice Brennan appreciate would the value of available,
consulting specific the most tradition since he acknowledges that agree ‘family’ if . and ‘parenthood' ‘'[e]ven we can . . that part are life, good agree it is absurd to assume that we can on the content of those Pont, pretend terms and to that we do." at destructive 141. Because general imprecise guidance, provide they such traditions such permit need, judges society's to views. dictate rather than discern the ar- if avoided, bitrary decisionmaking adopt specific is be to the most to tradition announce, point —or at least to as the of reference as .Justice Bkennan do, selecting among declines to some other criterion for the innumerable enough —is Well exemplified by relevant traditions that could be consulted present opinion Justice Brennan's the fact that in the case and Justice 132, footnote, opinion, p. disapproves which this post, ap- O'Connor's both tradition, they peal opposite the basis of the tradition select to but on reach (if that) assuredly having the virtue it Although leaving results. of occurs, they when judges unanticipated free think best a to dеcide as by any particular, law text nor rule of that binds neither identifiable no at all. tradition is rule of law Finally, analysis is not may we that this inconsistent with the note result Connecticut, (1965), v. 381 S. 479 or such as U. cases Griswold (19721. Baird, of v. 405 S. 433 None those cases acknowl Eisenstadt U.
edged extant societal tradition longstanding withholding and still very subject liberty of a right pronounced to be the interest and then re case, In jected Justice Brennan must do so here. this the existence it. tradition, day, any continuing present possible to the refutes con of such a alleged right is “so rooted the traditions and tention that the conscience fundamental," Massachusetts, Snyder be ranked as v. people as to of our 97, “implicit concept liberty,” in the ordered 291 105 of U. S. (1937). Connecticut, U. S. Palko offspring,” that assumed 463 U. at and we S., with his protection oppor- require might some the Constitution tunity, born however, the child is Where, 262-265. id., at unique family, father’s marital the natural into an extant similarly unique opportunity of opportunity with conflicts marriage; for is not and it unconstitutional husband categorical In give preference the latter. to the State to quoted approvingly dissent from Justice Stewart’s Lehr we the effect Mohammed, S., 397, to in Caban v. U. “‘[i]n although circumstances actual some may in the unwed child suffice create between father and comparable parental the married those of father interests legal tie with the mother father,”’ “‘the absence of place appropriately a limit on whatever such circumstances might constitutional claims otherwise exist.’” substantive traditions, a n. 16. accord our S.,U. imposed by is, that the mother limit also circumstance conception to, birth, and married at the time the child’s cohabitating man, both of whom wish with, another ques- offspring It is their union.7 raise the child policy legislative law constitutional whether tion of not which, Justice Brennan as here, the husband chides us for thus wife *17 limiting wish to our raise her child holding to situations jointly. limitation we would be unable to that without this The dissent believes ‘unitary family’ in “rely protecting on the State’s asserted interest Post, deprived liberty.” Michael and Victoria have been denying that clear, however, sought have and as the dissent 147. we to make at As understand, 139,140-141,145,147, we rest post, to see seems elsewhere interests, “balancing” upon independent of such but not our our decision protected right legal parentage any constitutionally to upon the absence situation, evi natural in Michael’s part of an adulterous father on “balancing” has reflects a that by long tradition. That tradition denced by society pronouncement limit our to the already made itself. We been possible it that our traditions of this case because is at least relevant facts fathering with to adulterous of a child regard to conclusion lead a different It un parents raise as their own. seems whom marital do not wish to holding among to their criti disagree for who with our include fair those broadly. holding more have extended the cisms that we not of a de- parenthood couple California will allow the presumed to retain a child conceived within and born into their siring to be rebutted. marriage that
We do not criticism this accept Brennan’s Justice that “the liberty result consists of freedom “squashes” Post, 141. It seems us that reflects not to conform.” that there is one side to this contro- only erroneous view can a of sorts expand “liberty” one versy disposition —that side. an on the other contracting equivalent “liberty” without Here, rarely provide a choice is available. happy Such natural father is to deny protec- adulterous protection and vice versa. If Michael has a father, tion to a marital (whatever means), that “freedom not to conform” Gerald have a “freedom to conform.” One of must equivalently that “freedom” —Michael asserting them will for pay price father has adulter- unable to act as of the child he by being in- unable to by being preserve or Gerald ously begotten, unit have es- family of the traditional he and Victoria tegrity does not choose between these tablished. Our disposition “freedoms,” two but leaves that to the of California. people them as the chooses one of approach Justice Brennan’s on no basis that apparent except constitutional imperative, the unconventional is to be preferred.
(t— > have never had occasion to decide whether a child has We interest, symmetrical that of her liberty parent, her filial We need not do so here relationship. maintaining because, exists, even that Victoria’s assuming right such if is, fail. due process challenge any- claim must Victoria’s weaker than Michael’s. Her basic claim is not thing, her establishing has erred from preventing California Rather, Michael, Gerald, not should stand as her father. legal *18 a due to maintain filial relation- right she claims process merits with both Michael and Gerald. This assertion ships the merits of the discussion, for, guardian whatever little arrangement great that such ad litem’s belief can of psychological child, benefit to a the claim a that State must multiple support recognize history has no in the fatherhood country. this Moreover, or traditions of if we even were to argument forwarding propo- construe lesser Victoria’s sition whatever her that, Gerald, status vis-a-vis she has a liberty maintaining relationship a filial with her that, natural claim father, Michael, best, we find her is the obverse of Michael’sand for the same reasons. fails equal protection rights
Victoria claims her addition that presumed have been her violated unlike mother and because, opportunity presumption father, she had no to rebut the legitimacy. argument wholly her We find this without merit. reject, suggestion equal We the outset, Victoria’s that her protection challenge must be assessed under standard a scrutiny denying right strict because, her the to maintain a discriminating filial Michael, with the State is against illegitimacy. her on the basis of her See Gomez v. (1973). Illegitimacy legal Perez, S.U. is a con- struct, a natural law, not trait. California Under Victoria is illegitimate, not she is treated the same manner as all legitimate other children: is еntitled she to maintain a filial legal parents. her apply, ordinary relationship” We therefore, “rational equal protection challenge. primary test to Victoria’s §621’s underlying may rationale limitation on those who legitimacy rebut is a concern that allow- ing person's may other than the husband wife to so un- do integrity dermine the of marital union. When the hus- legitimacy band or contests child, wife their stability marriage already has been shaken. con- allowing illegitimacy pressed by trast, claim of to be accurately, by court-appointed guardian or, more ad child— disrupt peaceful well an otherwise union. Since litem— pursues legitimate it means, end rational California’sde- *19 132 differently parents
cisión to treat Victoria from her is not a equal protection. denial of judgment Appeal of the California Court of is
Affirmed. Kennedy joins, Justice O’Connor, with whom Justice concurring part. opinion.
I all concur in but 6 of footnote Justice Scalia’s analysis This sketches a footnote mode historical to be used identifying liberty protected by when interests the Due Proc ess Clause of Fourteenth Amendment that be some past what inconsistent with our decisions area. this See Connecticut, Griswold v. 381 U. S. 479 Eisenstadt (1965); v. Baird, U. S. 438 On occasion the Court has (1972). 405 protecting rights characterized relevant traditions asserted generality might specific at levels of not be most “the Loving Ante, level” available. n. 6. v. Vir See 127-128, ginia, Safley, U. S. 12 (1967); Turner v. 482 U. S. 1, 388 Stanley, cf. United States 483 U. S. (1987); 94 concurring part dissenting (1987) 709 (O’Connor, J., part). by unanticipated prior I would not foreclose the imposition single analysis. aof mode historical Poe v. Ull (Harlan, dissenting). man, S. 497, 542, U. (1961) J., Stevens, Justice concurring the judgment. questions As I case, understand this it raises two different validity statutory about the of California’s First, scheme. (West Supp. 1989) Cal. Code Evid. Ann. unconstitu- §621 prevents tional it because Michael and Victoria from obtain- ing judicial biological he determination that is her father- legal rights even if no would be affected determina- deny appellants Second, tion? does the California statute opportunity prove fair that Victоria’s best interests would by granting rights? be served Michael visitation agree On the first issue with Justice that the I Scalia imposes obligation upon no Federal Constitution a State to legal consequence hinges upon unless “declare facts some requested Ante, declaration.” at 126. “The actions of judges genetic neither create nor Lehr sever bonds.” v. Rob- (1983). ertson, U. S. *20 agree On the I second issue do not with Justice Scalia’s
analysis.
reject
possibility
He seems to
the
that a natural
might
constitutionally protected
father
ever have a
relationship
in his
with a child whose mother was married to,
cohabiting with,
man at
another
the
of
time
the child’s
conception
Stanley
I
and birth.
think cases
Illinois,
like
(1972),
“[Rjeasonable rights [shall awarded] visitation be to a parent unless it is shown the visitation would be to the detrimental best interests of the child. the dis- rights may court, cretion of the reasonable visitation granted any person having other an interest in the added.) (Emphasis the child.” ivelfare §621 presumption established denied Michael § benefit of the first 4601 sentence of a matter because, as “parent.” prevent law, he not, however, is not a It does him person proving having from that he an is “other interest in face, therefore, welfare of the child.” its On statute authority plainly judge grant gave Michael trial rights.” “reasonable visitation § my colleagues interpreted recognize have
I as prevеnt creating that would a California trial an absolute bar “parent” judge regarding father either a the natural from § “any meaning first sentence of 4601 or as within the meaning person” of the second sentence. other within post, ante, J., at 148-151 dis 116, 119; See (Brennan, reading only senting). of the stat That is not an unnatural plain language, it also not consistent with the Cali ute’s but reading Thus, the statute. Vincent B. v. courts’ fornia (1981), Rptr. appeal App. Joan R., 619,179 3d Cal. 126Cal. Appeal, California Court dism’d, 459 U. S. § deciding barred a natural after that the paternity, sepa proving went on to consider father from *21 proper question it would be to allow visitation rate whether §4601: pursuant sentence of to the second “Finally, appellant if Frank contends that even is con- appellant clusively presumed father, to be Z.’s should rights, 4601 since Civil Code section allowed visitation rights ‘any gives grant visitation to other discretion person having interest in the welfare of the child.’ that in the circumstances this case We think it obvious be detrimental such court-ordered visitation would Appellant’s interests of the child. best appellant visiting is the child is based on his claim that legally claim is now determined to be Z.’s father. Such impossible. the child to be The mother does not wish uncertainty, by appellant. and em- Confusion, visited likely a court to the child would result from barrassment biological appellant, fa- that who claims to be Z.’s order against wishes of the ther, to visitation is entitled (Petitioner Respondent supra, R., 430 A. F. v. mother. 1080.)” App. 179 3d, 627-628, at Cal. 1075, 126 Cal. 2d added). Rptr., (emphasis at 13 rights granting visitation Supporting decision the court’s contrary was child’sbest interests to the would be to Vincent Stanley [v. Illi- putative fathers that “unlike the fact re] (1972),] [In [, Lisa R. 13 Cal. and nois, 405 U. S. (1975)],appellant never lived with has 532 P. 2d 3d supported the child.” he ever has child, nor mother and Rptr., 12. App. 179 Cal. 3d, 126 Cal. only judge
Similarly, found the not case, the trial this separately applicable, also con but conclusive § expressly “that, at found the effect of 4601 sidered present interests of the child it not in the best time, that the ex The Court believes Plaintiff have visitation. (2) аuthority figures will con as male istence of two ‘fathers’ counter-productive inter to her best child and be fuse the App. In its Supp. A-90—A-91. to Juris. Statement ests.” Appeal “is opinion, that Michael also concluded the Court of rights see 4601,” visitation under section entitled not Rptr. App. 995, 1013, Cal. 3d 191 Cal. opinion excerpt in Vin quoted from the above
and then sup opinion, not it does I read that R. As cent B. v. Joan per an “other port father cannot be a natural the view that meaning it indicates that §4601; rather, son” within th[e] largely depends “the circumstances on the outcome case.”* us, Michael of the case before circumstances
Under the
nat-
given
opportunity
is Victoria’s
to show that he
fair
was
developed
her,
had
father, that he
ural
by granting him visi-
would be served
that her interests
*22
that
rights.
also shows
hand, the record
On the other
tation
marriage
shaky
and
between Carole
start, the
its rather
after
stability
provides
developed
with
Victoria
that now
a
Gerald
§621
willingness to decide
courts’
showing the California
*For cases
W.,
g., Michelle W. v. Ronald
basis, see,
39 Cal.
e.
case-by-case
on a
cases
(1986);
In re Lisa
dism’d,
S. 1043
app.
U.
3d
I concur therefore Court’s of affirmance. Brennan, Justice with whom Justice Marshall and join, dissenting. Justice Blackmun yielded many opinions In a case that has so one, has this begin emphasizing ground it is fruitful to the common by majority shared of this Court. Five Members of the possibility Court refuse to foreclose “the that a natural fathеr might constitutionally protected ever have a interest in his relationship with a child whose mother to, was married cohabiting with, another man at the time of the child’s con- ception (Stevens, concurring Ante, birth.” at J., judgment); (White, post, see infra, at 141-147; J., dissenting). agree inhering Five Justices that the flaw constitutionally a conclusive terminates protected any hearing proce- interest without whatsoever is a (White, post, dural one. See infra, 153; J., at 163 dis- senting); (Stevens, concurring judgment). ante, J., at 132 agree Four Members of the Court H. Michael has a lib- erty in his Victoria, see infra, (White, post, dissenting), at 143; J., at 157 and one assumes (Ste- purposes for does, ante, of this case that he see at 133 concurring judgment). vens, J., only fully In contrast, one other Member of the Court en- proper dorses Justice view Scalia’s method of an- alyzing questions arising under the Due Process Clause. *23 concurring 113; ante, at ante, See (O’Connor, J., plurality opinion’s part). ex- the Nevertheless, because analysis significant portends clusively and unfor- historical prior departure cases and from sound consti- from our tunate my decisionmaking, portion I a substantial devote tutional to it. discussion
I “liberty” protected by recognized the that the Once we Amendment encom- of the Fourteenth Due Process Clause bodily today’s plu- passes restraint, than freedom from more concept rality opinion emphasizes, was cut loose from one the paved meaning. on its This innovation natural limitation way, plurality judges to their own hints, so the for substitute preferences Dissatisfied with for those of elected officials. supposedly affairs, this unbridled and uncertain state concept plurality limitation on the casts about for another liberty. Apparently in “tradition.” oblivi- finds this limitation
It concept this can be as malleable and as to the fact that ous “liberty” plurality pretends tradi- itself, elusive as places a border around the Constitution. tion discernible comforting pretense to believe seductive; is it would nothing idiosyn- involves more that a search for “tradition” dusty poring through complicated than volumes on cratic or history. Yet, observed American White Justice Cleveland, in Moore v. East U. S. dissent (1977): country deeply traditions of the are rooted “What begin arguable.” I for an wherever would to look Indeed, country’s thing “deeply traditions,” one rooted (as plurality) stop Bracton, I would not does is certain: Reports the American Law Blackstone, Kent, or or even my people conducting reasonable can search. Because particular disagree and be- traditions, content of about the they disagree about which traditions are rele- can even cause plurality “liberty,” has not found vant to the definition objective boundary it seeks. *24 agree, sig- moreover, Even if we on the content and could particular we traditions, nificance of still would be forced to identify point enough the a tradition firm which becomes liberty be relevant to and the our definition moment at any longer. which it to be becomes too obsolete relevant plurality supplies objective might no means which we plurality Indeed, make these determinations. as soon as the signs upon sees (the that the tradition which it bases its decision denying putative standing
laws
fathers like Michael
paternity)
crumbling,
ground
says
it
assert
shifts
and
nothing
to do with that tradition,
case has
after all.
plurality
“[W]hat
here,”
is at issue
asserts after can-
vassing
paternity suits,
the law on
“is not entitlement
ato
pronouncement
begotten by
state
that Victoria was
Michael.”
precisely
Ante,
here,
at 126. But that is
what is at issue
and
plurality’s
dramatically
last-minute denial of this fact
il-
subjectivity
analysis.
lustrates the
of its own
approach
utterly dependent
It is ironic that an
so
on tradi-
precedents. Citing barely
tion is
so indifferent
our
defining
scope
handful of this Court’s numerous decisions
liberty protected by
support
the Due Process Clause to
plurality
though English
tradition,
its reliance on
acts as
legal
Reports always
treatises and the American Law
have
provided
principles.
the sole source for our constitutional
They
longer
have not. Just as common-lawnotions no
define
“property”
protects,
Goldberg
that the Constitution
see
(1970),
Kelly,
they
v.
It is
important
decisionmaking
Throughout
in this
our
sions.
—
practices
interests and
that certain
runs the theme
area
childbearing,
marriage,
physical restraint,
freedom from
childrearing,
the core of our definition
and others—form
partly
“liberty.”
the re-
interests is
for these
Our solicitude
seem
Due Process Clause would
of the fact that the
sult
partly
protect
empty promise
the re-
them, and
if it
not
did
*25
importance
inter-
these
traditional
of
sult of the historical and
deciding
arising
society.
Due
under the
in
cases
ests
our
whether
therefore, we have considered
Clause,
Process
impermissibly im-
under consideration
concrete limitation
upon
generalized
pinges
interests.
one of these more
parent-
Today’s plurality,
whether
however, does not ask
historically
attention
has received our
hood is an interest
question
protection;
is too clear for
the answer to
and
specific
plurality
dispute.
va-
asks whether the
Instead, the
riety
parenthood
natural father’s
under consideration—a
married to another
child whose mother is
with a
protection.
enjoyed such
man—has
specificity
past
in
with such
to tradition
If we had looked
many
a different result.
would have reached
a decision
cases,
by
couples,
contraceptives
Surely
unmarried
the use of
(1972),
by married
438
or even
Baird, 405 U. S.
Eisenstadt v.
(1965);
couples,
Connecticut, 381 U. S.
v.
Griswold
Ingraham
punishment
corporal
in
v.
schools,
freedom from
arbitrary
(1977);
Wright,
the freedom from an
430 U. S.
psychiatric
prison
v.
institution, Vitek
to a
transfer from a
(1980);
right
even the
to raise one’s
misguided. ignores good limiting It reasons for the role interpreting deliberately “tradition” the Constitution’s capacious language. plurality’s In the constitutional uni- may original verse, we not take notice of the fact that the paternity reasons for the conclusive are out of place prove virtually a world which blood tests can be- yond particular of a shadow doubt who sired a child and illegitimacy longer plays which fact no the burdensome stigmatizing plurality’s role it once Nor, did. deny scope by pointing world, we “tradition” its full out changed that the rationale for the conventional rule has over years, § as has the rationale for Cal. Evid. Code Ann. 621 (West Supp. 1989);1 simply identify instead, our task is denying rule the asserted interest and not to ask whether the basis for that rule—which is the true reflection of the values undergirding changed recently it—has too often or too to call embodying the rule that rationale a *26 Moreover, “tradition.” by describing question the decisive as whether Michael’sand “traditionally pro- Victoria’s is one that has been by society,” (emphasis added), tected our ante, at 122 rather society traditionally thought important than one that has (with it), protecting by suggesting or without and that our society’s sole function is to “discern the views,” ante, at added), (emphasis plurality only pur- n. 6 if acts as Marriage Sharyne B., See In re Stephen App. and 124 Cal. 3d of 528-531, (1981) Rptr. (noting 177 Cal. 431-433 that California courts initially justified paternity ground conclusive of on the biological paternity impossible prove, preservation was but that the of family integrity paramount justification paternity became rule’s when reliable). tests became importance pose the Due Process Clause is confirm the by majority already protected interests States. by Transforming protection afforded Due Process redundancy care and who, into a mocks those Clause purpose, wrote the Fourteenth Amendment. construing
In the Fourteenth Amendment to offer shelter only specifically protected by interests to 'those historical practice, plurality ignores society moreover, the the kind of exists. We which our Constitution are not an assimila- homogeneous society, pluralistic but a tive, facilitative, one, willing in which we must be to abide someone else’s unfamil- repellent practice iar im- or even because the same tolerant idiosyncracies. pulse protects if our own Even we can agree, “family” part “parenthood” therefore, that are good agree life, it is absurd to assume that we can on the pretend content of those terms and destructive to that we do. community “liberty” ours, such as must include the free- plurality today squashes dom not to conform. The this free- by approval history requiring specific pro- from dom before tecting anything liberty. in the name of plurality today
The document that the construes is unfamil- living I iar to me. It is not the charter that have taken to be stagnant, our it is instead a hidebound Constitution; archaic, steeped prejudices superstitions document of a long past. recognize time This Constitution does not change, practice times see that rule does not sometimes accept interpretive I its cannot outlives foundations. method that does such violence to the charter that I am uphold. oath to bound
II plurality’s reworking interpretive approach of our troubling unnecessary. all thе because it is more This is not interest, a case which we face a “new” kind of that re- one quires us to consider for the first time whether the Constitu- *27 — protects contrary, tion it. On the we confront an interest parent relationship that of a and child their with each 142 among this Court acknowl- the first that
other—that was by “liberty” protected defining edged the Con- in its cases Meyer g., 390, 399 Nebraska, 262 U. S. v. see, e. stitution, (1942); (1923); 316 U. S. Oklahoma, v. Skinner I 158, 166 Massachusetts, 321 U. S. Prince v. saying or that no one doubts the wisdom think I am safe validity the interest under consid- Where those decisions. relationship, parent-child ask, over we need not is a eration society again, one that tra- that interest is whether and over ditionally protects. as whether the rela- this case the issue Thus, to describe existing “has been tionship and Victoria Michael between practices family protected the historic unit under treated as a any society, it has been ac- other basis whether on our special protection,” to reinvent the ante, is corded approach commanded the one indeed, wheel. The better — by prior to ask whether common sense—is cases and our relationship is specific parent-child consideration under already protected enough have that we the interests close “liberty” aspect the facts be- as well. On to be deemed general- question “level of is not what therefore, the us, fore ity” relationship Mi- between describe the be used to should 6, n. but whether ante, see Victoria, chael and sufficiently relationship substantial to under consideration liberty prior qualify cases. interest under our as a prior whether we have considered occasions, On four constitutionally protected fathers have unwed Stanley relationships v. Illi- their children. See their (1972); Quilloin Walcott, v. 434 U. S. nois, 405 U. S. (1979); (1978); Lehr Mohammed, U. S. 380 v. Caban (1983). Though in fac- different Robertson, 463 U. S. produced legal circumstances, these cases have tual and biological although link to unifying an unwed father’s theme: guarantee him a constitu- itself, in and of not, child does link child, suсh a with that in his tional stake parent-child will do combined with a substantial *28 a full commit- father demonstrates an unwed “When so.2 by ‘com[ing] parenthood for- responsibilities of to the ment rearing inter- participate child,’... his his in the ward to acquires personal substantial his child contact with est point that it protection Process Clause. At the Due under ‘act[s] children.’” a father toward his he as said that quoting supra, v. Moham- 261, at Caban Robertson, Lehr why Mr. supra, This commitment is n. 7. 392, 389, at med, why Stanley Mr. Lehr Mr. and won; Quilloin and Mr. Caban today. prevail why H. is Michael H. should Michael lost; and certainly with father, has lived D.’s natural Victoria almost support, and has to her has contributed father, her as her strengthen beginning sought maintain his from the relationship with her. protect
Claiming cases was to that the intent of these Stanley, plurality “unitary family,” 123, at waves ante, plurali- evaluating Lehr aside. Quilloin, Caban, and identify ty’s precedents, it its of these is essential to dismissal acknowledging “unitary family.” by conception If, relationships sought protect Stanley “the that et al. that plurality unitary family,” develop ibid., the meant within relationships develop when only that the kinds of to describe informally) (formally together as parents children live plurality’s family, would be vision of these cases then Though plurality’s message. it But that is not correct. marriage lipservice crucial fact pays is not the the idea that relationship protection denying be- to the constitutional plurality ante, 3, n. Victoria, Michael and tween says. it mean what cannot undisputed Victoria, and Michael,
The evidence they family; together shared the is, live did Carole [my] position leads to the con logic of plurality’s “[t]he claim that The in no rape, that fact would begotten Victoria that if Michael had clusion her,” liberty interest his possession of a way affect his ante, biological that a mere connection my observation ignores n. part an unwed father. liberty interest on the is insufficient to establish “Daddy,” Michael called Michael household, same Victoria support, eager to and he is continue contributed to Victoria’s plurality’s they are in the not, with her. Yet “unitary family,” Gerald, Carole, whereas and Vic- view, a family. only compose between toria such a difference do *29 relationships, however, is the fact of mar- these two sets of expressly recognizes riage. plurality, that mar- indeed, The constitutionally denying riage in fact is the critical Michael protected relationship no fewer stake Victoria: plurality “adulter- than the refers to Michael as the times, six added) (emphasis Ante, the like. at ous natural father” ante, n. at 124 120; 6; 129, 7; n. n. 130. See also 6; family” (referring Vic- Gerald, Carole, the “marital and to toria) added); (plurality’s holding (emphasis ante, 129 lim- in which there is “an mari- ited to those situations extant very premise Stanley family”).3 However, tal following marriage it is that is not decisive an- cases swering question protects whether the Constitution parental relationship These are, under consideration. cases they important precisely rights involve the all, after because important It remember, moreover, unwed fathers. is to putative Caban, Lehr, Quilloin, that in father’s de- disrupted “unitary family” plural- mands would have as the ity case, defines in each the husband of the child’smother it; adopt objections sought the child over the of the natural to way Significantly, our decisions in those cases in no father. protect family. to the marital Hence the relied on the need Stanley, plurality’s Quilloin, Caban, claim that and Lehr plurality opinion appears place, suggest length that the one question together time and Victoria lived is relevant to the that Michael liberty they have a interest in their with each other. whether ante, however, any point pursued, n. 3. The and in See is not plurality which the otherwise event I am unable to find the traditions on exclusively any emphasis on the duration of the between relies putative father and child. “unitary family,” family were about the as that is defined today’s plurality, surprising is indeed. plurality’s exclusive rather than inclusive definition of “unitary family” step is out of with other as decisions pinched conception family,”
well. This
of “the
crucial as
rejecting
liberty
it is in
Michael’s and Victoria’s claims of a
jarring
light
many
preventing
interest,
of our
cases
denying important
the States from
interests or statuses to
government’s
those whose situations do not fit the
narrow
family.
Loving Virginia,
view of the
From
The focus on the is misdirected question for another reason. It conflates the whether a lib- erty question procedures may interest exists with the what be used to terminate or curtail it. It is no coincidence that relationship we never before have looked at the that the un- disrupt, wed father seeks to rather than the one he seeks to preserve, determining liberty in whether he has interest in relationship with his child. To do otherwise is to allow terminating relationship play the in the State’s interest to defining “liberty” protected by in role that is the Con- According stitution. to our established framework under Clause, however, the Due Process we first ask whether the person claiming protection constitutional has interest that recognizes; if find that does, Constitution we he or she we limiting next consider the State’s interest the extent of the procedures deprivation that will attend the of that interest. g., Logan See, Co., 422, e. v. Zimmerman Brush 455 U. S. (1982). By “unitary stressing preserve the need family” just focusing relationship not on and between on their well, ante, Michael and Victoria but “situation” as opinion today’s plurality steps both takes of these once. plurality’s premature
The consideration in- of California’s holding terests is evident its careful limitation from of its those mother is, cases which “the at the time of child’s conception cohabitating to, married birth, with, and an- man, wish other spring both whom to raise the as the child off- added). (emphasis Ante, at their union.” See (describing liberty also at 127 ante, Michael’s interest as the parental rights [of] “substantive natural father of child within, into, an extant conceived and born marital union that child”). highlighted language wishes to embrace suggests if that Carole Gerald alone raise wished to Vic- if both toria, or were dead and the her, State wished to raise might liberty Michaeland Victoria be found to have a interest in their each other.4 But that would say liberty that whether Michael Victoria have a interest recognizing varies with the interest in State’s interest, protecting family— for it is the State’s interest the marital and not Michael and Victoria’s their with each other—that varies with the status of Carole and relationship. day process Gerald’s It is a bad for due when plurality presumably 4 Note disapprove would the California R., holdings courts’ App. Vincent B. Joan 126 Cal. 3d 179 Cal. (1981) (§ Rptr. putative 621 defeated father’s where interest even hus band and wife time paternity action), divorced at the and Michelle (1985) (§621 W., W. v. Ronald 39 Cal. 3d 703 P. puta 2d 88 defeated *31 tive putative father’s even where mother had married father and divorced conception man whom she had been married time of birth). moreover, suggest, possible To that “it is at least our tradi tions a in lead to different conclusion” such B. cases as Vincent and Mi W., ante, express chelle optimism ability n. is to an about our identify share, microscopic precision with “traditions” that I do not and a willingness society pieces, only up to slice into minuscule on based tradi tion, I cannot endorse. terminating parent-child relationship the State’s interest part is reason to conclude that that is not “liberty” protected by the Fourteenth Amendment. plurality wedged
The has itself between a rock hard and a place. holding If it limits its to those situations in which a together, wife and husband wish to raise the child then it nec- essarily defining takes the State’s interest into account “liberty”; yet approach if it extends that to circumstances in already which the marital union has dissolved, been then it longer rely protect- no on the State’s asserted interest in ing “unitary family” denying that Michael and Victoria deprived liberty. have been plurаlity’s proper analysis confusion about the involving procedural process
claims due also becomes obvious plurality’s emphasis when one examines the shift in from the putative standing ability parental father’s to his to obtain prerogatives. announcing ante, See at 126. that what ability paternity, matters is not the father’s to claim but his ability parental rights,” to obtain “substantive ante, at 127, plurality procedural process upside turns due down. Mi- challenge depend ability chael’s this Court does not on his ultimately rights; strange to obtain visitation it would be granted hearing, indeed if, before one could be one were required prove prevail that one would on the merits. The point procedural process give litigant due is to prevailing, particular fair chance at not to ensure a substan- challenge depend tive outcome. Nor does Michael’s on the obtaining parental rights success of fathers like him in past procedural process large, cases; is, due an indi- guarantee, depend vidual not one that should on the success prior having nothing or failure of cases little or to do with the claimant’s own suit.5 Quilloin Walcott, only One need look as far as 434 U. S. why to understand might having unwed father lose for reasons
nothing there, to do with his own approved the child: we standard, standard, the use of a “best interest” rather than an “unfitness”
(1— plurality Because Michael decides that and Victoria liberty relationship have no in their with each other, interest § it need consider the effect of 621 on their neither relation- ship bringing nor the interest about State’s that effect. It § is obvious, however, that the effect of 621 is to terminate Michael between and Victoria before afford- ing any hearing on the is whatsoever issue whether Michael hearing properly Victoria’s This father. refusal to hold a is analyzed procedural process under our due cases, which in- curtailing pro- struct us to consider State’s interest accompanying constitutionally cedures of a termination protected compari- interest, interest. California’s minute son with a his child, father’s justify cannot its refusal hear Michael out on his claim that he is Victoria’s father.
A challenged We must first understand the nature stubbornly statute: it is a law that insists that Gerald is Vic- showing percent toria’s father, in face of evidence a 98 probability father that her is Michael.6 What Michael wants By depriving is chance to show that he is Victoria’s father. opportunity, prevents him of this California Michael from taking advantage best-interest standard embodied in § parents 4601 of Code, California’s Civil directs which given rights unless visitation “the visitation would be det- rimental to the best interests of the child.” Cal. Civ. Code (West 1989).7 §4601 Supp. Ann. objected
for unwed adoption father who to the of his child another man. 6Justice given opportunity claim “Michael a fair was Stevens’ father,” ante, that he ignores show natural Victoria’s the fact that case precisely this is before because law us California refuses to allow men like Michael opportunity. such an 7Showing startling misunderstanding case, of the stakes this plurality hearing characterizes the issue at the that Michael seeks as
As interpreted by California courts, § however, 621 not Michael only deprives of the benefits of the best-interest stand- it also him ard; deprives chance of any his rela- maintaining with the tionship child he claims to be his own. When, as § result of 621, father putative may not establish his pater- nity, neither he obtain discretionary visitation as a rights 4601. See Vincent B. v. Joan § under “nonparent” R., 126 Cal. 3d App. 619, 627-628, 179 Cal. Rptr. 9, (1981), appeal dism’d, 459 U. S. 807 (1982); see also ante, at 116. Justice assertion to the contrary, ante, at is 134-135, mere Stevens’ wishful thinking. that the concluding California courts af- ford putative fathers like Michael a meaningful opportunity show that visitation would be in rights the best interests of their children, he fastens “in the words upon circumstances supra, of this case” in Vincent B. R., Joan 627, at 179 Cal. Ante, at 134-135. His at 13. Rptr., is suggestion that the in court that case conducted an individualized assessment of the effect on the child of visitation granting rights Vincent B. “whether, particular in case, circumstances of his pоlicies California’s parental would best be giving rights.” Ante, served him at 120. The hearing plurality merely that the describes is one that the California courts response in hold challenges here, see, constitutional such lodged as those g., W., 3d, e. Michelle 363, 2d, W. v. Ronald 93; 39 Cal. at 703 P. it at hearing not the that Michael as the seeks end result of this lawsuit. The plurality’s confusion is further evident its announcement that “what is at pronouncement issue here is not entitlement to a state that Victoria was added). begotten by Ante, (emphasis Michael.” precisely at 126 That is hearing what is at issue that Michael seeks.
Justice Stevens exhibits the same
misunderstanding
pointing to Mi-
R.,
636,
chelle W. and In re Lisa
13 Cal. 3d
Justice Stevens’ § putative opportunity to all whom 621has fathers denied the paternity. began by to show The court Vincent B. stress ing objected the fact that the child’s mother to visits from present every single Vincent. This circumstance is case § falling Granting under the conclusive of 621. rights person visitation to a who claimed to be the child’s father, tainty, on, court went also would cause “confusion,uncer App. 3d, embarrassment.” 126 Cal. Rptr., Again, unacceptable Cal. at 13. the notion that con awarding person fusion would result from visitation to a who *34 equally applicable any claims to be the child’sfather is case §4601 “nonparent” §621. in which the under has lost under Finally, approvingly in B. court Vincent cited Petitioner Respondent F. v. R., 1076, 430 A. 2d 1080 in which Supreme rejected putative Court of Delaware a father’s argument presumption pater that Delаware’s conclusive of nity Equal violated the Protection Clause of the Federal Con App. Rptr., stitution. 126 3d, Cal. 179 Cal. at 13. Emphasizing “permanent stigma and distress” that would granting parental rights putative result from to a father whose child born was to the wife of man, another the Dela given “guard that, ware court decided the State’s interest ing] against upon family appli [t]he assaults unit[,] . . . presumption legitimacy cation of the of of a child born to a practically married woman would be the child’sinterest in added). (emphasis all 2d, cases.” 430 A. at 1080 Vincent signal S.’s reliance on Petitioner F. sends a clear that the issuing ruling applicable any California court was case §621’s presumption, that fit into conclusive and that justice” § “rough prevailed that under 621 also would suffice §4601. cry under This kind of determination is a far from the individualized assessment that Justice Stevens would seem to demand. Ante, at 135.8 the court Vincent B. incorrectly suggests
8 Justice Stevens that §4601 rights partly based its denial of visitation under on the lack of an finding Likewise, us, the case before the court’s (2) authority figures “the existence of two ‘fathers’ as male counter-productive will confuse the child and be to her best Supp. App. interests,” Statement A-91, Juris. A-90— not evaluation of the between Michael and policies § underlying but a Victoria, restatement of the 621it- may interpreta- self. It well be that the California courts’ § precluding rights putative tion of 4601 as visitation for a fa- reading” provision, ther is “an unnatural ante, but it is not for us to decide what California’s statute means.
Section 621 as construed the California courts thus cuts liberty off the between Michael and Victoria—a protected by the Due Process Clause—without af- fording process. the least bit case, This words, other involves conclusive that is used to terminate constitutionally protected interest —the kind of rule that our preoccupation procedural fairness has caused us to con- g., (1973); demn. e. See, Vlandis v. Kline, U. S. 441 Board Cleveland Education v. LaFleur, U. S. 632 (1975). (1974);Weinberger v. Salfi, U. S. 770-772 plurality eye D. and the Gerald turn a blind to the true na- § by protesting being ture that, instead of a conclusive presumption, it is a “substantive rule of law.” Ante, at 119. § This facile observation cannot save 621. It be that all *35 presumptions are, conclusive in a sense, substantive rules of § belongs special category 621 law; but then of sub- presumes stantive rules that a fact relevant to a certain class litigation, § suspect and it is that feature that renders 621 prior put point differently, under our cases. To a conclu- presumption sive takes form of “no X’s are Y’s,” is typically accompanied by only as, a rule such “. . . and Y’s (There may obtain a driver’s license.” would be no need for something hinged pre- unless on the fact Ante, B. established between Vincent and the child. at 135. fact, In specific relationship the court did not even mention the between people § in coming App. these two to its-decision under 4601. See Cal. 3d, Rptr., at 179 Cal. at 13. sumed.) §621 Ignoring takes the form of “no the fact plurality upon fix fol- the rule X’s D. and Y’s,” are Gerald parental rights only lowing call assert Y’s §621 —and — strategy ignores § both of law. This 621 a substantive rule §621. and the effect of form § conclusive that 621 is not a In a further effort to show plurality agrees, presumption, see D. claims—and the Gerald biological man is the father of a whether a ante, at 119—that family places putative father within situation child whose Appellee § simply 14. to the State. Brief for 621is irrelevant implications attempt to avoid the of our I is, surmise, This condemning presumption of a fact that a State has cases particular g., See, decision. e. made relevant or decisive to (1971). Yet the claim that Burson, Bell v. 402 U. S. paternity patently factual California does not care about very paternity much factual false. cares about California impotent sterile, Evid. when the husband is or see Cal. Code 621(a) (West 1989); very § Supp. it cares much about it Ann. see home, when the wife and husband do not share the same App. 3d, 623-624, Vincent B. 179Cal. R., v. Joan Cal. Rptr., very it much about it when the hus- 11; and cares father, band himself that he is not the see Evid. declares Cal. 621(c) (West 1989). § Supp. Ann. Indeed, Code under Cali- currently paternity structured, fornia law as is decisive deny- choosing granting the standard that will be used ing custody though State, or visitation. The selective its paternity, certainly concern for factual is not indifferent fundamentally, purported it.9 indifference More California’s § paternity to factual not show that 621 is not a conclu- does no respect, plurality suggesting is mistaken in that “there is this says difference between a rule which that the marital husband shall father, says that the irrebuttably presumed to be the and a rule which recognized legal natural not be as the father.” adulterous father shall Ante, case, pre paternity the at 120. In the latter the State has not made putative fa child-custody disputes and then told some dominant concern they may prove paternity. thers that not their *36 say presumption. that California sive To does not care paternity factual in limited about circumstances of this impotent case—where the is neither nor husband sterile nor living apart simply way from his wife—is another of describ- ing presumption. its conclusive §621
Not content to rest not, on its assertion does plurality presumption, goes fact, establish a conclusive on argue challenge presumption that a to a conclusive must procedural process. rest on substantive rather than due See simply Weinberger ante, 120-121. This is not so. v. supra, the Salfi, Court identified two lines of cases involv- ing challenges legislation: to social-welfare those in which legislative challenged arbitrary a classification was those which a conclusive was attacked. The complaint category fit Court into the former on Salfi ground challenged deprive anyone that the law did not constitutionally protected of a interest. 422 U. S., 772. Today’s plurality, in contrast, classifies this case as one in- voking process substantive due it considers the nature before support of the interest at stake. Its for this in- innovation commentaries, cludes several law-review two concurrences judgment, dissent, itself. Ante, at 120- Salfi disturbing plurality’s 121. Even more than the reliance on recognize infirm these foundations is its failure to that the presumptions proce- defect from which conclusive suffer is a dural one: the State has declared a certain fact in- relevant, controlling, yet particular litigants deed has denied class of hearing precisely to establish that fact. This is the kind of procedural process designed flaw that due to correct.10 recognized Mohammed, 10 We 380, 385, as much in Caban v. 441 U. S. (1979), in explicitly Stanley Illinois, n. 3 which we described 405 U. S. as a involving procedural process. case due plurality’s bald holding Stanley rely procedural statement did not on due ante, process is therefore incorrect. See at 120.
B question The before us, therefore, is whether California powerful justifies has an granting interest so that it Michael hearing terminating parental no rights. before
“Many raged cryptic controversies about have and ab- stract words of the Due Process Clause but there can be no they require deprivation doubt that at a minimum that life, liberty property by adjudication preceded by or notice and opportunity hearing appropriate for to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 (1950). U. proce- S. When a State seeks to limit the deprivation dures constitutionally that will attend the of a protected only interest, it is the State’s interest streamlin- ing procedures g., is relevant. See, e. Mathews v. (1976).
Eldridge, U. S. A State not, in justify procedures other ground words, abbreviated on the pay that it people wishes to welfare benefits to fewer professors wants to pay- reduce the number of tenured on its strange roll. It pro- would be if indeed a State could curtail explanation cedures with the that it was hostile to the under- lying, constitutionally protected interest. purported primar- state interests here, however, stem
ily antagonism from the State’s to Michael’s and Victoria’s constitutionally protected relationship their any each procedures. other and not from desire to streamline § explains promotes marriage, Gerald D. that 621 maintains presumed between the child and father, and protects integrity privacy family. of the matrimonial Appellee Brief for not, 24. It is however, §621, but the principle, protects best-interest a stable marital rela- tionship and maintains the between the child and presumed implicated by father. These interests are gets parental rights, by determination of who not the deter- hearing mination of who father; is the in the that Michael parental rights objectives seeks, are not the issue. Of the only preservation stresses, that Gerald therefore, of fam- hearing by promoted ily privacy itself. the refusal to hold only partially. objective §621 this furthers even Yet pro- proportions privacy gives generous to the D. Gerald protects couple § asserting provision that this tected answering questions such from on like Gerald and Carole practices other habits and with each as “their sexual matters marriage, their finances, their their and outside *38 concerning opinions thoughts, their beliefs, and Yet invali- Id., at 25. with Victoria.” each other and subject § suggests, Gerald not, as Gerald dation of 621 would scrutiny private public these matters. to all of and Carole Family family dynamics pa- relevant, are not to and finances ternity, child’s to the child—and the but the best interests of hear- stressed, as I have issue at the not, interests are best touching ing only private on The matter that Michael seeks. § couple’s by paternity presumed sex 621 is the married § by interpreted inter- Even 621 as California’s there, life. couple’s appellate pre-empts inquiry into a courts mediate living simply of since “cohabitation” consists relations, sexual together; need not wife and husband the same roof under g., R., B. v. See, bed. e. Vincent Joan even share same (1981). Admittedly, App. Rptr. 9 619, 3d Cal. 126 Cal. fertility inquiry §621 into the husband’s does not foreclose ordinarily virility thought are of as the that —matters day age, private couple’s however, In this business. asking questions paternity by proving intimate and detailed couple’s decidedly anachronis- would be about establishing method of on earth would choose this tic. Who certainty prove tests it with far when blood more fatherhood protect- purported The State’s and far less fuss? up privacy ing Mi- thus not measure matrimonial does maintaining interest in their relation- and Victoria’s chael’s ship with each other.11 pa § Thus, inquiries child’s concluding “excludes] into the ante, family integrity privacy,”
ternity that destructive would be plurality exaggerates the extent to which these interests would hand, § presumption. On the other threatened the elimination 621’s say provide
Make no mistake: to the State must Mi- hearing prove paternity express chael with a is not to any opinion of the ultimate state of affairs between Michael change and Victoria and Carole and Gerald. In order to among people, current situation these Michaelfirst must con- vince court that he is if father, Victoria’s and even he is able rights this, do he will be denied visitation if that would be § in Victoria’s best interests. See Cal. Ann. Civ. Code (West 1989). Supp. elementary It is that a determination procedures that a State must afford before it terminates a given right prediction is not a about the end result of those procedures.12
IV atmosphere surrounding today’s decision is one of Beginning suggestion make-believe. with the that the situa- if the protecting State’s foremost interest is in the husband from discover- ing children, that he plurality not be the father of his wife’s as the ante, suggests, § see n. then 621 unhelpful indeed. Since “co- habitation” sharing under California law includes the same roof but not the *39 person only same bed phone and since a need a make call order to unset- tle a certainty paternity children, § husband’s the of his wife’s 621 will do prevent little to (White, J., such discoveries. post, See also at 162 dissenting). plurality’s The point failure to see this causes it to misstate Michael’s way: claim in following “Michael contends aas matter of substantive that, process due parental relationship because he has established a with Victoria, protection of Gerald’s and Carole’s marital union is аn insufficient support state Ante, interest to termination relationship.” of that at 121. not, may Michael does claim that any circumstance, not the State under Victoria; instead, relationship terminate simply his with he claims that the State affording not do so without him hearing pater a on the issue — nity question it vital relationship may deems whether their be —that plurality discontinued. The makes Michael’s claim easier to knock down by turning big target. it into such a plurality’s misunderstanding of Michael’s claim also leads to its as- provide protection
sertion that “to to an adulterous natural father is to Ante, deny protection to a marital father.” at 130. To allow Michael a however, prove paternity, way guarantees chance to in no that Gerald’s will changed. with Victoria every day repeat confronting itself us here does not tion moving country, on to every ante, of the corner supplies the details that it is tradition alone claim that finally passing protects, liberty and the Constitution cramped recognized always has Court the notion family,” today’s California’s lets stand decision of “the vision to a show tests pronouncement blood that Michael—whom not Victoria’s probability percent father—is to be Victoria’s reality, find it will awakes and if the Court father. When expects. very it from the one a world different joins, Brennan White, with whom Justice Justice dissenting. plurality ante, at it, describes law, as the
California except de- circumstances, California that, us limited tells purposes paternity whether it to be “irrelevant for clares marriage existing during, into, an and born child conceived (emphasis begotten than husband” someone other was accept, original). for the fact that Michael I not This do highly biological is to me relevant father of Victoria H. is rights, with re- otherwise, a father or he has to whether H. has spect I that Michael Because believe to the child. process of liberty without due that cannot be denied interest law, I must dissent. I Blackmun, Marshall, Brennan, Like Justices opinion’s plurality agree conclu- I Stevens, do not constitutionally “have a natural father can never that a sion whose with a child protected in his cohabiting man at with, another to, was married mother Ante, conception at 133 and birth.” *40 of the child’s the time (Stevens, judgment). concurring cases here Prior in J., liberty recognized a father his relation- interest have indicate cases did we ship of these child. none with his rights dependent status on the marital were the father’s TVip nrinpi'nlp prmn- nf I-Lo mntLav m» Hinlncnníil fitfhav hnsir> 158
ciated the Court’s unwed father an cases fa- unwed ther who has a demonstrated sufficient commitment his paternity by way personal, respon- financial, or custodial protected liberty relationship a sibilities has interest with his child.1 question biological
We have not before faced the of a fa- relationship ther’s with his when child the child born was while the mother was married to another man. On several biological occasions we however, have considered whether constitutionally cognizable oppor- father has a interest an tunity paternity. Stanley to establish Illinois, v. 405 U. S. (1972), recognized biological right legal father’s to a illegitimate holding child, that the Due Process Clause of the Fourteenth Amendment entitled the biological hearing illegiti- father to a on his fitness before his custody. mate children could be removed from his We re- jected Stanley parent the State’s treatment of “not aas but stranger as a Id., his children.” at 648. (1978),
Quilloin Walcott, v. 434 U. S. ex- also pressly recognized process rights biological due ill the father, holding rights impermissibly even while that those were not application burdened the State’s of a “best interests of the child” standard. Caban v. Mohammed, 441 U. S. Robertson, Lehr 463 U. emphasized S. 259-260 the dis biological relationship tinction between “a mere and an actual Lehr, parental responsibility.” In the dissent to I “As said: Jessica’s father, biological Lehr protected by either had the Constitution entry adoption or he not. If the did of the deprived order in this case Lehr constitutionally protected interest, of a he is entitled to notice and an opportunity Id., to be heard before order finality.” can be accorded (footnote omitted). I rejected majority’s approach pur which ported analyze particular facts of the case order to determine Mr. protected whether Lehr a constitutionally liberty had I interest. parent child, stressed the interest that natural has in his “one that has long recognized protection.” Id., been constitutional accorded 270. majority error, Whether not in Lehr inwas on the facts in case, stant demanding even Lehr's more clearly standard is satisfied. *41 (1979), equal protection grounds invalidated on a statute adopted by man’s under which a children could their natu- ral mother and her husband without the natural father’s consent.
In Lehr v. Robertson, 463 U. S. 261-262 though holding against in that case, the father the Court said clearly participated raising that fathers who have their il- developed legitimate relationship children and have a constitutionally protected parental rights. have In- them suggested provide deed, the Court Lehr that States must a biological illegitimate father of an child the means which paternity may oppor- he establish his that he have the so tunity develop relationship a with his child. The Court upheld stepparent objec- adoption over the natural father’s acknowledged tions, but that “the existence or nonexistence relationship parent of a substantial between and child a rel- evaluating rights parent evant criterion both the the best interests of Id,., the child.” 266-267. There, per- however, the father had never established a custodial, relationship or financial sonal, with his child. Lehr had never lived with the child or the child’smother after the birth provided any support. of the child and had never financial In the case now before Michael H. us, is not a father un- willing responsibilities parent. to assume his aas To the contrary, he is a father who has asserted his interests rais- ing providing very for his child since time of the in Lehr, child’sbirth. contrast to the father Michael had begun develop daughter. with his There is point. dispute nо on this Michael contributed to the child’s (albeit support. together Michael and Victoria lived inter- mittently, given lifestyle). Carole’s itinerant There is a personal and emotional between Michael and grew up “Daddy.” calling Victoria, who him Michael held daughter fi- Victoria out as his and contributed to the child’s (Even support. appellee nancial concedes that Michael has greater establishing “made efforts and had more success Ap- relationship” did Mr. Brief for than Lehr. father-child 6.) pellee denied, has never and indeed 13, n. The mother *42 Lehr admitted, has that Michael Victoria’s father.2 was relationship predicated be- on the of substantial absence emphasized and the “difference tween the man and the child developed parent-child that was between the potential implicated Stanley Caban, and relation- in and the supra, [Lehr].” ship Lehr, in and 261. Quilloin involved a full commitment to “When an unwed father demonstrates by ‘com[ing] parenthood responsibilities forward to the of supra, rearing participate Caban, his child,’ in the of acquires personal in contact child interest with his 392, his ” protection Lehr, the Due under Process Clause. substantial satisfy supra, in this case the Lehr crite- at 261. The facts father and focused between ria, which on relationship between and on the father mother. child, not relationship” enough, biological is not Lehr a “mere Under light vicissitudes, Michael in what more could but of Carole’s enough that more than meets have done? It is clear Michael liberty establishing constitutionally protected mark in recognized Stanley v. Illi- and in interest discussed Lehr supra, supra. there- He nois, Mohammed, and Caban v. liberty protection entitled to under the has a interest fore the Fourteenth Amendment. Due Process Clause of
II plainly protection, refus- Michael this denies California opportunity ing him to rebut State’s California the father the child. the mother’s husband is legal only deprives parent-child rela- of a Michael law not tionship daughter him but Victoria even denies оpportunity the de- to rebut blood-test evidence introduce concedes, April 1984 signed stipulation plurality Carole As the Ante, at 114-115. Victoria’s father. acknowledging that Michael was is Victoria’s father.3 Unlike fiction Gerald monstrable def- has, not been denied notice. He most Michael has Lehr, any opportunity initely, to be however, denied real been summary judgment against grant Michael The heard. presumption of Cal. Evid. Code on the conclusive (West was based 1989), opportu- § Supp. him which denied Ann. biological nity prove The father. that he is Victoria’s §621 by relying blessing gives on the State’s its Court (defined family integrity in the interests asserted Gerald) protecting Victoria from and as Carole by balancing away illegitimacy stigma Michael’sinter- establishing the father of the child. that he is est stigma protecting child from the social any illegitimacy a case to the facts of lacks real connection *43 repudiate, seeking establish, rather than where a father is “stigma illegitimacy” argument paternity. harks The there were no blood tests back to ancient common law when “by na- could not the laws of to ascertain that the husband process to de- refused ture” be the child’s father. Judicial illegitimate in wedlock was unless clare that a child born only proof physical positive. proof ab- such was was clearly recognized impotency. now But we have sence or evaluating authoritative means of tests as an the use of blood g., paternity. allegations Streater, Little See, e. (1981). plurality’s I no reason to debate the see U. S. 6-7 “spousal multilingual explorations an- nonaccess” and into bastardy policy It be true laws. concerns behind cient relationship would in an extramarital that a child conceived case, permitted to Michael’s were he ultimate resolution of While the evidence, custody of rights or even might well be visitation such introduce is question at issue here child, important keep in mind that it is custody simply whether but granted he should be visitation not whether the end re any proceeding. Whatеver step in such he can take the first he is permitted proof to offer sult, simply asking that he be Michael is case, likely that he would that is to mean In the instant Victoria’s father. Mi and which show he and Carole took the blood tests that introduce father. is Victoria’s chael in the literal word, considered “bastard” sense of the but stigma today’s society compel-
whatever remains in is far less ling especially in the context a child of a married mother, paternity asserting seeking when there is a father a rela- tionship hardly with his It rare in child. this world of di- remarriage vorce and live for a child to with the “father” to married, whom her mother is and still have a biological with her father. professed preservation
The State’s in the existing significant marital unit is a more concern. To be asserting sure, the intrusion of an outsider that he is the fa- ther of a child whom the husband believes to be his own disruptive say would be the least. On the facts of this case, however, Gerald was well aware of the liaison between Carole and Michael. The conclusive of eviden- §621 tiary virtually putative rule eliminates father’s succeeding paternity, chances of his effort to establish but prevents asserting it no means him from the claim. It may serve as a deterrent to such claims but does not elimi- argument Further, nate the threat. that the conclusive presumption preserved sanctity of the marital unit had sway similarly pre- more a time when the husband was challenging paternity.4 vented from *44 law, quarter century, Even in the last under California a husband definitively whose blood test showed he could not be the father of the child present permitted born to his wife was nonetheless not to a this evidence to 1967, presumption paternity. court in to refute the In order conclusive however, began presumption ap the California courts to erode the as it husband, plied providing opportunity to the the husband with at least some Jackson, to demonstrate that he father. v. 67 was not the child’s Jackson (1967). 245, 1980, Legislature 430 P. Cal. 2d 2d 289 the California permit § amended 621 of its Evidence Code order to the husband an opportunity to overcome the that he is the father of his wife’s child if he raises the notice of motion for blood tests not later than two (So years pro the birth of the child. much for the State’s interest in from stigma illegitimacy!) tecting the child from the emphasis ‘process.’” of the Due “The Process Clause is on (1977) Cleveland, 494, Moore v. East 431 U. S. (White, dissenting). process I fail to J., see the fairness estab- by by lished the State of California and endorsed the Court today. Michael has evidence which demonstrates that he is young the father Victoria. Yet he is blocked the State presenting from that evidence to a court. As a result, he is establishing paternity ultimately foreclosed from his and is precluded, by developing relationship State, from with requirement process his “A fundamental child. of due is ‘the opportunity be heard.’ Ordean, Grannis v. U. S. opportunity granted 394. an It is which must be at a mean- ingful meaningful Armstrong time and manner.” (1965). Manzo, 380 U. S. I fail to see how Michael granted any meaningful opportunity was to be heard when he precluded very introducing was at the outset from evidence support paternity. which would his assertion of Michael has opportunity present any never been afforded an his case in meaningful manner. significance biological
As the Court has said: “The of the opportunity that it offers the connection is natural father possesses develop relationship that no other male with offspring. grasps opportunity accepts If his he responsibility some measure of for the child’sfuture, he enjoy blessings parent-child relationship and make uniquely development.” valuable contributions to the child’s passage Lehr, at 262. It is as if this S., U. was ad- plurality today dressed to Michael. Yet the recants. Mi- eagerly grasped opportunity chael to have a (he daughter lived with her her; with his he declared to be his her) provided support child; still, he financial for today’s opinion, opportunity has vanished. He has been stranger to his rendered a child. § applied,
Because Cal. Evid. Code Ann. should be under the Due held unconstitutional Process Clause of the respectfully Amendment, I dissent. Fourteenth