491 U.S. 110
MICHAEL H. ET AL. v. GERALD D.
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
No. 87-746.
Argued October 11, 1988
Decided June 15, 1989
In May 1981, appellant Victoria D. was born to Carole D., who was married
to, and resided with, appellee Gerald D. in California. Although Gerald was
listed as father on the birth certificate and has always claimed Victoria as
his daughter, blood tests showed a 98.07% probability that appellant Michael
H., with whom Carole had had an adulterous affair, was Victoria's father.
During Victoria's first three years, she and her mother resided at times with
Michael, who held her out as his own, at times with another man, and at times
with Gerald, with whom they have lived since June 1984. In November 1982,
Michael filed a filiation action in California Superior Court to establish his
paternity and right to visitation. Victoria, through her court-appointed
guardian ad litem, filed a cross-complaint asserting that she was entitled to
maintain filial relationships with both Michael and Gerald. The court
ultimately granted Gerald summary judgment on the ground that there were no
triable issues of fact as to paternity under Cal. Evid. Code 621, which
provides that a child born to a married woman living with her husband, who is
neither impotent nor sterile, is presumed to be a child of the marriage, and
that this presumption may be rebutted only by the husband or wife, and then
only in limited circumstances. Moreover, the court denied Michael's and
Victoria's motions for visitation pending appeal under Cal. Civ. Code 4601,
which provides that a court may, in its discretion, grant "reasonable
visitation rights . . . to any . . . person having an interest in the [child's]
welfare." The California Court of Appeal affirmed, rejecting Michael's
procedural and substantive due process challenges to 621 as well as Victoria's
due process and equal protection claims. The court also rejected Victoria's
assertion of a right to continued visitation with Michael under 4601, on the
ground that California law denies visitation against the wishes of the mother
to a putative father who has been prevented by 621 from establishing his
paternity.
Held:
The judgment is affirmed.
191 Cal. App. 3d 995, 236 Cal. Rptr. 810, affirmed.
JUSTICE SCALIA, joined by THE CHIEF
JUSTICE, and in part by JUSTICE O'CONNOR and JUSTICE KENNEDY, concluded that: [491 U.S. 110, 111]
1. The 621 presumption does not infringe
upon the due process rights of a man wishing to establish his paternity of a
child born to the wife of another man. Pp. 118-130.
(a) Michael's contention that
procedural due process requires that he be afforded an opportunity to
demonstrate his paternity in an evidentiary hearing fundamentally misconceives
the nature of 621. Although phrased in terms of a presumption, 621 expresses
and implements a substantive rule of law declaring it to be generally
irrelevant for paternity purposes whether a child conceived during, and born
into, an existing marriage was begotten by someone other than the husband and
had a prior relationship with him, based on the state legislature's
determination as a matter of overriding social policy that the husband should
be held responsible for the child and that the integrity and privacy of the
family unit should not be impugned. Because Michael's complaint is that the
statute categorically denies all men in his circumstances an opportunity to
establish their paternity, his challenge is not accurately viewed as
procedural. Pp. 119-121.
(b) There is no merit to Michael's
substantive due process claim that he has a constitutionally protected
"liberty" interest in the parental relationship he has established
with Victoria, and that protection of Gerald's and Carole's marital union is an
insufficient state interest to support termination of that relationship.
Michael has failed to meet his burden of proving that his claimed
"liberty" interest is one so deeply imbedded within society's
traditions as to be a fundamental right. Not only has he failed to demonstrate
that the interest he seeks to vindicate has traditionally been accorded
protection by society, but the common-law presumption of legitimacy, and even
modern statutory and decisional law, demonstrate that society has historically
protected, and continues to protect, the marital family against the sort of
claim Michael asserts. Pp. 121-130.
2. The 621 presumption does not
infringe upon any constitutional right of a child to maintain a relationship
with her natural father. Victoria's assertion that she has a due process right
to maintain filial relationships with both Michael and Gerald is, at best, the
obverse of Michael's claim and fails for the same reasons. Nor is there any merit
to her claim that her equal protection rights have been violated because,
unlike her mother and presumed father, she had no opportunity to rebut the
presumption of her legitimacy, since the State's decision to treat her
differently from her parents pursues the legitimate end of preventing the
disruption of an otherwise peaceful union by the rational means of [491 U.S. 110, 112] not
allowing anyone but the husband or wife to contest legitimacy. Pp. 130-132.
JUSTICE STEVENS, although
concluding that a natural father might have a constitutionally protected
interest in his relationship with a child whose mother was married to, and
cohabiting with, another man at the time of the child's conception and birth,
also concluded that the California statutory scheme, as applied in this case,
is consistent with the Due Process Clause, since it did not deprive Michael of
a fair opportunity to prove that he is an "other person having an interest
in the welfare of the child" to whom "reasonable visitation
rights" may be awarded in the trial judge's discretion under 4601. The
plurality's interpretation of 621 as creating an absolute bar to such a
determination is not only an unnatural reading of the statute's plain language
but is also not consistent with the reading given by the courts below and
California courts in other cases, all of which, after deciding that the 621
presumption barred a natural father from proving paternity, have nevertheless
gone on to consider the separate question whether it would be proper to allow
the natural father visitation as an "other person" based on the best
interests of the child in the circumstances of the particular case. Here, where
the record shows that, after its shaky start, the marriage between Carole and
Gerald developed a stability that now provides Victoria with a loving and
harmonious family home, there was nothing fundamentally unfair in the trial
judge's exercise of his discretion to allow the mother to decide whether the
child's best interests would be served by allowing the natural father
visitation privileges. Pp. 132-136.
SCALIA, J., announced the judgment of the Court and
delivered an opinion, in which REHNQUIST, C. J., joined, and in all but n. 6 of
which O'CONNOR and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion
concurring in part, in which KENNEDY, J., joined, post, p. 132. STEVENS, J.,
filed an opinion concurring in the judgment, post, p. 132. BRENNAN, J., filed a
dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 136.
WHITE, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p.
157.
Robert A. W. Boraks argued the cause for appellants. With him on the briefs
for appellant Michael H. were George Kaufmann, Ronald K. Henry, Paul R.
Taskier, and Joel S. Aaronson. Leslie Ellen Shear filed briefs for appellant
Victoria D. [491 U.S. 110, 113]
Larry M. Hoffman argued the cause for appellee. With him on the brief was
Glen H. Schwartz. *
[ Footnote
* ] Michael L. Oddenino filed a brief for the National Council for
Children's Rights as amicus curiae urging reversal.
Paul Hoffman, Joan Howarth, John A. Powell, Helen Hershkoff, Steven R.
Shapiro, and Isabelle Katz Pinzler filed a brief for the American Civil
Liberties Union Foundation et al. as amici curiae.
JUSTICE SCALIA announced the judgment of the Court and delivered an opinion,
in which THE CHIEF JUSTICE joins, and in all but footnote 6 of which JUSTICE
O'CONNOR and JUSTICE KENNEDY join.
Under California law, a child born to a married woman living with her
husband is presumed to be a child of the marriage. Cal. Evid. Code Ann. 621
(West Supp. 1989). The presumption of legitimacy may be rebutted only by the
husband or wife, and then only in limited circumstances. Ibid. The instant
appeal presents the claim that this presumption infringes upon the due process
rights of a man who wishes to establish his paternity of a child born to the
wife of another man, and the claim that it infringes upon the constitutional
right of the child to maintain a relationship with her natural father.
The facts of this case are, we must hope, extraordinary. On May 9, 1976, in
Las Vegas, Nevada, Carole D., an international model, and Gerald D., a top
executive in a French oil company, were married. The couple established a home
in Playa del Rey, California, in which they resided as husband and wife when
one or the other was not out of the country on business. In the summer of 1978,
Carole became involved in an adulterous affair with a neighbor, Michael H. In
September 1980, she conceived a child, Victoria D., who was born on May 11,
1981. Gerald was listed as father on the birth certificate and has always held
Victoria out to the world as his [491
U.S. 110, 114] daughter. Soon after delivery of the child,
however, Carole informed Michael that she believed he might be the father.
In the first three years of her life, Victoria remained always with Carole,
but found herself within a variety of quasi-family units. In October 1981,
Gerald moved to New York City to pursue his business interests, but Carole chose
to remain in California. At the end of that month, Carole and Michael had blood
tests of themselves and Victoria, which showed a 98.07% probability that
Michael was Victoria's father. In January 1982, Carole visited Michael in St.
Thomas, where his primary business interests were based. There Michael held
Victoria out as his child. In March, however, Carole left Michael and returned
to California, where she took up residence with yet another man, Scott K. Later
that spring, and again in the summer, Carole and Victoria spent time with
Gerald in New York City, as well as on vacation in Europe. In the fall, they
returned to Scott in California.
In November 1982, rebuffed in his attempts to visit Victoria, Michael filed
a filiation action in California Superior Court to establish his paternity and
right to visitation. In March 1983, the court appointed an attorney and
guardian ad litem to represent Victoria's interests. Victoria then filed a
cross-complaint asserting that if she had more than one psychological or de
facto father, she was entitled to maintain her filial relationship, with all of
the attendant rights, duties, and obligations, with both. In May 1983, Carole
filed a motion for summary judgment. During this period, from March through
July 1983, Carole was again living with Gerald in New York. In August, however,
she returned to California, became involved once again with Michael, and
instructed her attorneys to remove the summary judgment motion from the
calendar.
For the ensuing eight months, when Michael was not in St. Thomas he lived
with Carole and Victoria in Carole's apartment in Los Angeles and held Victoria
out as his daughter. In April 1984, Carole and Michael signed a stipulation
that [491 U.S. 110, 115] Michael
was Victoria's natural father. Carole left Michael the next month, however, and
instructed her attorneys not to file the stipulation. In June 1984, Carole
reconciled with Gerald and joined him in New York, where they now live with
Victoria and two other children since born into the marriage.
In May 1984, Michael and Victoria, through her guardian ad litem, sought
visitation rights for Michael pendente lite. To assist in determining whether
visitation would be in Victoria's best interests, the Superior Court appointed
a psychologist to evaluate Victoria, Gerald, Michael, and Carole. The
psychologist recommended that Carole retain sole custody, but that Michael be
allowed continued contact with Victoria pursuant to a restricted visitation
schedule. The court concurred and ordered that Michael be provided with limited
visitation privileges pendente lite.
On October 19, 1984, Gerald, who had intervened in the action, moved for
summary judgment on the ground that under Cal. Evid. Code 621 there were no
triable issues of fact as to Victoria's paternity. This law provides that
"the issue of a wife cohabiting with her husband, who is not impotent or
sterile, is conclusively presumed to be a child of the marriage." Cal.
Evid. Code Ann. 621(a) (West Supp. 1989). The presumption may be rebutted by
blood tests, but only if a motion for such tests is made, within two years from
the date of the child's birth, either by the husband or, if the natural father
has filed an affidavit acknowledging paternity, by the wife. 621(c) and (d).
On January 28, 1985, having found that affidavits submitted by Carole and
Gerald sufficed to demonstrate that the two were cohabiting at conception and
birth and that Gerald was neither sterile nor impotent, the Superior Court
granted Gerald's motion for summary judgment, rejecting Michael's and
Victoria's challenges to the constitutionality of 621. The court also denied
their motions for continued visitation pending the appeal under Cal. Civ. Code
4601, which provides that a court may, in its discretion, grant "reasonable
[491 U.S. 110, 116] visitation
rights . . . to any . . . person having an interest in the welfare of the
child." Cal. Civ. Code Ann. 4601 (West Supp. 1989). It found that allowing
such visitation would "violat[e] the intention of the Legislature by impugning
the integrity of the family unit." Supp. App. to Juris. Statement A-91.
On appeal, Michael asserted, inter alia, that the Superior Court's
application of 621 had violated his procedural and substantive due process
rights. Victoria also raised a due process challenge to the statute, seeking to
preserve her de facto relationship with Michael as well as with Gerald. She
contended, in addition, that as 621 allows the husband and, at least to a
limited extent, the mother, but not the child, to rebut the presumption of
legitimacy, it violates the child's right to equal protection. Finally, she
asserted a right to continued visitation with Michael under 4601. After
submission of briefs and a hearing, the California Court of Appeal affirmed the
judgment of the Superior Court and upheld the constitutionality of the statute.
191 Cal. App. 3d 995, 236 Cal. Rptr. 810 (1987). It interpreted that judgment,
moreover, as having denied permanent visitation rights under 4601, regarding
that as the implication of the Superior Court's reliance upon 621 and upon an
earlier California case, Vincent B. v. Joan R., 126 Cal. App. 3d 619, 179 Cal.
Rptr. 9 (1981), appeal dism'd, 459
U.S. 807 (1982), which had held that once an assertion of biological
paternity is "determined to be legally impossible" under 621,
visitation against the wishes of the mother should be denied under 4601. 126
Cal. App. 3d, at 627-628, 179 Cal. Rptr., at 13.
The Court of Appeal denied Michael's and Victoria's petitions for rehearing,
and, on July 30, 1987, the California Supreme Court denied discretionary
review. On February 29, 1988, we noted probable jurisdiction of the present
appeal. 485
U.S. 903 . Before us, Michael and Victoria both raise equal protection and
due process challenges. We do not reach Michael's equal protection claim,
however, as it [491 U.S. 110, 117]
was neither raised nor passed upon below. See Bankers Life &
Casualty Co. v. Crenshaw, 486
U.S. 71 (1988).
The California statute that is the subject of this litigation is, in
substance, more than a century old. California Code of Civ. Proc. 1962(5),
enacted in 1872, provided that "[t]he issue of a wife cohabiting with her
husband, who is not impotent, is indisputably presumed to be legitimate."
In 1955, the legislature amended the statute by adding the preface:
"Notwithstanding any other provision of law." 1955 Cal. Stats., ch.
948, p. 1835, 3. In 1965, when California's Evidence Code was adopted, the
statute was codified as 621, with no substantive change except replacement of
the word "indisputably" with "conclusively," 1965 Cal.
Stats., ch. 299, 2, pp. 1297, 1308. When California adopted the Uniform
Parentage Act, 1975 Cal. Stats., ch. 1244, 11, pp. 3196-3201, codified at Cal.
Civ. Code Ann. 7000 et seq. (West 1983), it amended 621 by replacing the word
"legitimate" with the phrase "a child of the marriage" and
by adding nonsterility to nonimpotence and cohabitation as a predicate for the
presumption. 1975 Cal. Stats., ch. 1244, 13, p. 3202. In 1980, the legislature
again amended the statute to provide the husband an opportunity to introduce
blood-test evidence in rebuttal of the presumption, 1980 Cal. Stats., ch. 1310,
p. 4433; and in 1981 amended it to provide the mother such an opportunity, 1981
Cal. Stats., ch. 1180, p. 4761. In their present form, the substantive
provisions of the statute are as follows:
" 621. Child of the marriage;
notice of motion for blood tests
"(a) Except as provided in
subdivision (b), the issue of a wife cohabiting with her husband, who is not
impotent or sterile, is conclusively presumed to be a child of the marriage. [491 U.S. 110, 118]
"(b) Notwithstanding the
provisions of subdivision (a), if the court finds that the conclusions of all
the experts, as disclosed by the evidence based upon blood tests performed
pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the
husband is not the father of the child, the question of paternity of the
husband shall be resolved accordingly.
"(c) The notice of motion for
blood tests under subdivision (b) may be raised by the husband not later than
two years from the child's date of birth.
"(d) The notice of motion for
blood tests under subdivision (b) may be raised by the mother of the child not
later than two years from the child's date of birth if the child's biological
father has filed an affidavit with the court acknowledging paternity of the
child.
"(e) The provisions of
subdivision (b) shall not apply to any case coming within the provisions of
Section 7005 of the Civil Code [dealing with artificial insemination] or to any
case in which the wife, with the consent of the husband, conceived by means of
a surgical procedure."
We address first the claims of Michael. At the outset, it is necessary to
clarify what he sought and what he was denied. California law, like nature
itself, makes no provision for dual fatherhood. Michael was seeking to be
declared the father of Victoria. The immediate benefit he evidently sought to
obtain from that status was visitation rights. See Cal. Civ. Code Ann. 4601
(West 1983) (parent has statutory right to visitation "unless it is shown
that such visitation would be detrimental to the best interests of the
child"). But if Michael were successful in being declared the father,
other rights would follow - most importantly, the right to be considered as the
parent who should have custody, Cal. Civ. Code Ann. 4600 (West 1983), a status
which "embrace[s] the sum of parental rights with respect to the rearing
of a child, including the child's care; the right to the child's services and [491 U.S. 110, 119] earnings;
the right to direct the child's activities; the right to make decisions
regarding the control, education, and health of the child; and the right, as
well as the duty, to prepare the child for additional obligations, which
includes the teaching of moral standards, religious beliefs, and elements of
good citizenship." 4 California Family Law 60.021.[b] (C. Markey ed. 1987)
(footnotes omitted). All parental rights, including visitation, were
automatically denied by denying Michael status as the father. While Cal. Civ.
Code Ann. 4601 places it within the discretionary power of a court to award
visitation rights to a nonparent, the Superior Court here, affirmed by the
Court of Appeal, held that California law denies visitation, against the wishes
of the mother, to a putative father who has been prevented by 621 from
establishing his paternity. See 191 Cal. App. 3d, at 1013, 236 Cal. Rptr., at
821, citing Vincent B. v. Joan R., 126 Cal. App. 3d, at 627-628 179 Cal. Rptr.,
at 13.
Michael raises two related challenges to the constitutionality of 621.
First, he asserts that requirements of procedural due process prevent the State
from terminating his liberty interest in his relationship with his child
without affording him an opportunity to demonstrate his paternity in an
evidentiary hearing. We believe this claim derives from a fundamental
misconception of the nature of the California statute. While 621 is phrased in
terms of a presumption, that rule of evidence is the implementation of a
substantive rule of law. California declares it to be, except in limited
circumstances, irrelevant for paternity purposes whether a child conceived
during, and born into, an existing marriage was begotten by someone other than
the husband and had a prior relationship with him. As the Court of Appeal
phrased it:
"`The conclusive presumption
is actually a substantive rule of law based upon a determination by the
Legislature as a matter of overriding social policy, that given a certain
relationship between the husband and wife, the husband is to be held
responsible for the child, and that [491
U.S. 110, 120] the integrity of the family unit should not be
impugned.'" 191 Cal. App. 3d, at 1005, 236 Cal. Rptr., at 816, quoting
Vincent B. v. Joan R., supra, at 623, 179 Cal. Rptr., at 10.
Of course the conclusive presumption not only expresses the
State's substantive policy but also furthers it, excluding inquiries into the
child's paternity that would be destructive of family integrity and privacy. 1
This Court has struck down as illegitimate certain "irrebuttable
presumptions." See, e. g., Stanley v. Illinois, 405
U.S. 645 (1972); Vlandis v. Kline, 412
U.S. 441 (1973); Cleveland Board of Education v. LaFleur, 414
U.S. 632 (1974). Those holdings did not, however, rest upon procedural due
process. A conclusive presumption does, of course, foreclose the person against
whom it is invoked from demonstrating, in a particularized proceeding, that
applying the presumption to him will in fact not further the lawful
governmental policy the presumption is designed to effectuate. But the same can
be said of any legal rule that establishes general classifications, whether
framed in terms of a presumption or not. In this respect there is no difference
between a rule which says that the marital husband shall be irrebuttably
presumed to be the father, and a rule which says that the adulterous natural
father shall not be recognized as the legal father. Both rules deny someone in
Michael's situation a hearing on whether, in the particular circumstances of
his case, California's policies would best be served by giving him parental
rights. Thus, as many commentators have observed, see, e. g., Bezanson, Some
Thoughts on the Emerging Irrebuttable Presumption Doctrine, 7 Ind. L. Rev. 644
(1974); Nowak, Realigning [491
U.S. 110, 121] the Standards of Review Under the Equal Protection
Guarantee - Prohibited, Neutral, and Permissive Classifications, 62 Geo. L. J.
1071, 1102-1106 (1974); Note, Irrebuttable Presumptions: An Illusory Analysis,
27 Stan. L. Rev. 449 (1975); Note, The Irrebuttable Presumption Doctrine in the
Supreme Court, 87 Harv. L. Rev. 1534 (1974), our "irrebuttable
presumption" cases must ultimately be analyzed as calling into question
not the adequacy of procedures but - like our cases involving classifications
framed in other terms, see, e. g., Craig v. Boren, 429
U.S. 190 (1976); Carrington v. Rash, 380
U.S. 89 (1965) - the adequacy of the "fit" between the
classification and the policy that the classification serves. See LaFleur,
supra, at 652 (Powell, J., concurring in result); Vlandis, supra, at 456-459
(WHITE, J., concurring), 466-469 (REHNQUIST, J., dissenting); Weinberger v.
Salfi, 422
U.S. 749 (1975). We therefore reject Michael's procedural due process
challenge and proceed to his substantive claim.
Michael contends as a matter of substantive due process that, because he has
established a parental relationship with Victoria, protection of Gerald's and
Carole's marital union is an insufficient state interest to support termination
of that relationship. This argument is, of course, predicated on the assertion
that Michael has a constitutionally protected liberty interest in his
relationship with Victoria.
It is an established part of our constitutional jurisprudence that the term
"liberty" in the Due Process Clause extends beyond freedom from
physical restraint. See, e. g., Pierce v. Society of Sisters, 268
U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923). Without that core textual meaning as a limitation,
defining the scope of the Due Process Clause "has at times been a
treacherous field for this Court," giving "reason for concern lest
the only limits to . . . judicial intervention become the predilections of
those who happen at the time to be Members of this Court." Moore v. East
Cleveland, 431
U.S. 494, 502 (1977). The need for restraint has been cogently expressed by
JUSTICE WHITE: [491 U.S. 110, 122]
"That the Court has ample
precedent for the creation of new constitutional rights should not lead it to
repeat the process at will. The Judiciary, including this Court, is the most
vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language or even
the design of the Constitution. Realizing that the present construction of the
Due Process Clause represents a major judicial gloss on its terms, as well as
on the anticipation of the Framers . . ., the Court should be extremely
reluctant to breathe still further substantive content into the Due Process
Clause so as to strike down legislation adopted by a State or city to promote its
welfare. Whenever the Judiciary does so, it unavoidably pre-empts for itself
another part of the governance of the country without express constitutional
authority." Moore, supra, at 544 (dissenting opinion).
In an attempt to limit and guide interpretation of the
Clause, we have insisted not merely that the interest denominated as a
"liberty" be "fundamental" (a concept that, in isolation,
is hard to objectify), but also that it be an interest traditionally protected
by our society. 2
As we have put it, the Due Process Clause affords only those protections
"so rooted in the traditions and conscience of our people as to be ranked
as fundamental." Snyder v. Massachusetts, 291
U.S. 97, 105 (1934) (Cardozo, J.). Our cases reflect "continual
insistence upon respect for the teachings of history [and] solid recognition [491 U.S. 110, 123] of the
basic values that underlie our society. . . ." Griswold v. Connecticut, 381
U.S. 479, 501 (1965) (Harlan, J., concurring in judgment).
This insistence that the asserted liberty interest be rooted in history and
tradition is evident, as elsewhere, in our cases according constitutional protection
to certain parental rights. Michael reads the landmark case of Stanley v.
Illinois, 405
U.S. 645 (1972), and the subsequent cases of Quilloin v. Walcott, 434
U.S. 246 (1978), Caban v. Mohammed, 441
U.S. 380 (1979), and Lehr v. Robertson, 463
U.S. 248 (1983), as establishing that a liberty interest is created by
biological fatherhood plus an established parental relationship - factors that
exist in the present case as well. We think that distorts the rationale of
those cases. As we view them, they rest not upon such isolated factors but upon
the historic respect - indeed, sanctity would not be too strong a term -
traditionally accorded to the relationships that develop within the unitary
family. 3
See Stanley, supra, at 651; Quilloin, supra, at 254-255; Caban, supra, at
389; Lehr, supra, at 261. In Stanley, for example, we forbade the destruction
of such a family when, upon the death of the mother, the State had sought to
remove children from the custody of a father who had lived with and supported
them and their mother for 18 years. As Justice Powell stated for the plurality
in Moore v. East Cleveland, supra, at 503: "Our [491 U.S. 110, 124] decisions establish
that the Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nation's history and
tradition."
Thus, the legal issue in the present case reduces to whether the
relationship between persons in the situation of Michael and Victoria has been
treated as a protected family unit under the historic practices of our society,
or whether on any other basis it has been accorded special protection. We think
it impossible to find that it has. In fact, quite to the contrary, our
traditions have protected the marital family (Gerald, Carole, and the child
they acknowledge to be theirs) against the sort of claim Michael asserts. 4
The presumption of legitimacy was a fundamental principle of the common law.
H. Nicholas, Adulturine Bastardy 1 (1836). Traditionally, that presumption
could be rebutted only by proof that a husband was incapable of procreation or
had had no access to his wife during the relevant period. Id., at 9-10 (citing
Bracton, De Legibus et Consuetudinibus Angliae, bk. i, ch. 9, p. 6; bk. ii, ch.
29, p. 63, ch. 32, p. 70 (1569)). As explained by Blackstone, nonaccess could
only be proved "if the husband be out of the kingdom of England (or, as
the law somewhat loosely phrases it, extra quatuor maria [beyond the four
seas]) for above nine months. . . ." 1 Blackstone's Commentaries 456 (J.
Chitty ed. 1826). And, under the common law both in England and here, "neither
[491 U.S. 110, 125] husband
nor wife [could] be a witness to prove access or nonaccess." J. Schouler,
Law of the Domestic Relations 225, p. 306 (3d ed. 1882); R. Graveson & F.
Crane, A Century of Family Law: 1857-1957, p. 158 (1957). The primary policy
rationale underlying the common law's severe restrictions on rebuttal of the
presumption appears to have been an aversion to declaring children
illegitimate, see Schouler, supra, 225, at 306-307; M. Grossberg, Governing the
Hearth 201 (1985), thereby depriving them of rights of inheritance and
succession, 2 J. Kent, Commentaries on American Law *175, and likely making
them wards of the state. A secondary policy concern was the interest in
promoting the "peace and tranquillity of States and families,"
Schouler, supra, 225, at 304, quoting Boullenois, Traite des Status, bk. 1, p.
62, a goal that is obviously impaired by facilitating suits against husband and
wife asserting that their children are illegitimate. Even though, as bastardy
laws became less harsh, "[j]udges in both [England and the United States]
gradually widened the acceptable range of evidence that could be offered by
spouses, and placed restraints on the `four seas rule' . . . [,] the law
retained a strong bias against ruling the children of married women
illegitimate." Grossberg, supra, at 202.
We have found nothing in the older sources, nor in the older cases,
addressing specifically the power of the natural father to assert parental
rights over a child born into a woman's existing marriage with another man.
Since it is Michael's burden to establish that such a power (at least where the
natural father has established a relationship with the child) is so deeply
embedded within our traditions as to be a fundamental right, the lack of
evidence alone might defeat his case. But the evidence shows that even in
modern times - when, as we have noted, the rigid protection of the marital
family has in other respects been relaxed - the ability of a person in
Michael's position to claim paternity has not been generally acknowledged. For
example, a 1957 annotation on the subject: "Who may dispute presumption of
legitimacy of [491 U.S. 110, 126]
child conceived or born during wedlock," 53 A. L. R. 2d 572,
shows three States (including California) with statutes limiting standing to
the husband or wife and their descendants, one State (Louisiana) with a statute
limiting it to the husband, two States (Florida and Texas) with judicial
decisions limiting standing to the husband, and two States (Illinois and New
York) with judicial decisions denying standing even to the mother. Not a single
decision is set forth specifically according standing to the natural father,
and "express indications of the nonexistence of any . . . limitation"
upon standing were found only "in a few jurisdictions." Id., at 579.
Moreover, even if it were clear that one in Michael's position generally
possesses, and has generally always possessed, standing to challenge the
marital child's legitimacy, that would still not establish Michael's case. As
noted earlier, what is at issue here is not entitlement to a state
pronouncement that Victoria was begotten by Michael. It is no conceivable
denial of constitutional right for a State to decline to declare facts unless
some legal consequence hinges upon the requested declaration. What Michael
asserts here is a right to have himself declared the natural father and thereby
to obtain parental prerogatives. 5
What he must establish, therefore, is not that our society has
traditionally allowed a natural father in his circumstances to establish
paternity, but that it has traditionally accorded such a father parental
rights, or at least has not traditionally denied them. Even if the law in all
States had always been that the entire world could challenge [491 U.S. 110, 127] the
marital presumption and obtain a declaration as to who was the natural father,
that would not advance Michael's claim. Thus, it is ultimately irrelevant, even
for purposes of determining current social attitudes towards the alleged
substantive right Michael asserts, that the present law in a number of States
appears to allow the natural father - including the natural father who has not
established a relationship with the child - the theoretical power to rebut the
marital presumption, see Note, Rebutting the Marital Presumption: A Developed
Relationship Test, 88 Colum.L.Rev. 369, 373 (1988). What counts is whether the
States in fact award substantive parental rights to the natural father of a
child conceived within, and born into, an extant marital union that wishes to
embrace the child. We are not aware of a single case, old or new, that has done
so. This is not the stuff of which fundamental rights qualifying as liberty
interests are made. 6
[491 U.S. 110, 128]
In Lehr v. Robertson, a case involving a natural father's attempt to block
his child's adoption by the unwed mother's new husband, we observed that
"[t]he significance of the biological connection is that it offers the
natural father an opportunity that no other male possesses to develop a
relationship [491 U.S. 110, 129]
with his offspring," 463
U.S., at 262 , and we assumed that the Constitution might require some
protection of that opportunity, id., at 262-265. Where, however, the child is
born into an extant marital family, the natural father's unique opportunity
conflicts with the similarly unique opportunity of the husband of the marriage;
and it is not unconstitutional for the State to give categorical preference to
the latter. In Lehr we quoted approvingly from Justice Stewart's dissent in
Caban v. Mohammed, 441
U.S., at 397 , to the effect that although "`[i]n some circumstances
the actual relationship between father and child may suffice to create in the
unwed father parental interests comparable to those of the married
father,'" "`the absence of a legal tie with the mother may in such
circumstances appropriately place a limit on whatever substantive
constitutional claims might otherwise exist.'" 463
U.S., at 260 , n. 16. In accord with our traditions, a limit is also
imposed by the circumstance that the mother is, at the time of the child's
conception and birth, married to, and cohabitating with, another man, both of
whom wish to raise the child as the offspring of their union. 7
It is a question of legislative policy and not constitutional law whether [491 U.S. 110, 130] California
will allow the presumed parenthood of a couple desiring to retain a child
conceived within and born into their marriage to be rebutted.
We do not accept JUSTICE BRENNAN's criticism that this result
"squashes" the liberty that consists of "the freedom not to
conform." Post, at 141. It seems to us that reflects the erroneous view
that there is only one side to this controversy - that one disposition can
expand a "liberty" of sorts without contracting an equivalent
"liberty" on the other side. Such a happy choice is rarely available.
Here, to provide protection to an adulterous natural father is to deny
protection to a marital father, and vice versa. If Michael has a "freedom
not to conform" (whatever that means), Gerald must equivalently have a
"freedom to conform." One of them will pay a price for asserting that
"freedom" - Michael by being unable to act as father of the child he
has adulterously begotten, or Gerald by being unable to preserve the integrity
of the traditional family unit he and Victoria have established. Our disposition
does not choose between these two "freedoms," but leaves that to the
people of California. JUSTICE BRENNAN's approach chooses one of them as the
constitutional imperative, on no apparent basis except that the unconventional
is to be preferred.
We have never had occasion to decide whether a child has a liberty interest,
symmetrical with that of her parent, in maintaining her filial relationship. We
need not do so here because, even assuming that such a right exists, Victoria's
claim must fail. Victoria's due process challenge is, if anything, weaker than
Michael's. Her basic claim is not that California has erred in preventing her
from establishing that Michael, not Gerald, should stand as her legal father.
Rather, she claims a due process right to maintain filial relationships with
both Michael and Gerald. This assertion merits little discussion, for, whatever
the merits of the guardian [491
U.S. 110, 131] ad litem's belief that such an arrangement can be
of great psychological benefit to a child, the claim that a State must
recognize multiple fatherhood has no support in the history or traditions of
this country. Moreover, even if we were to construe Victoria's argument as
forwarding the lesser proposition that, whatever her status vis-a-vis Gerald,
she has a liberty interest in maintaining a filial relationship with her
natural father, Michael, we find that, at best, her claim is the obverse of
Michael's and fails for the same reasons.
Victoria claims in addition that her equal protection rights have been violated
because, unlike her mother and presumed father, she had no opportunity to rebut
the presumption of her legitimacy. We find this argument wholly without merit.
We reject, at the outset, Victoria's suggestion that her equal protection
challenge must be assessed under a standard of strict scrutiny because, in
denying her the right to maintain a filial relationship with Michael, the State
is discriminating against her on the basis of her illegitimacy. See Gomez v.
Perez, 409
U.S. 535, 538 (1973). Illegitimacy is a legal construct, not a natural
trait. Under California law, Victoria is not illegitimate, and she is treated
in the same manner as all other legitimate children: she is entitled to
maintain a filial relationship with her legal parents.
We apply, therefore, the ordinary "rational relationship" test to
Victoria's equal protection challenge. The primary rationale underlying 621's
limitation on those who may rebut the presumption of legitimacy is a concern
that allowing persons other than the husband or wife to do so may undermine the
integrity of the marital union. When the husband or wife contests the
legitimacy of their child, the stability of the marriage has already been
shaken. In contrast, allowing a claim of illegitimacy to be pressed by the
child - or, more accurately, by a court-appointed guardian ad litem - may well
disrupt an otherwise peaceful union. Since it pursues a legitimate end by
rational means, California's decision [491
U.S. 110, 132] to treat Victoria differently from her parents is
not a denial of equal protection.
The judgment of the California Court of Appeal is
Affirmed.
[ Footnote
1 ] In those circumstances in which California allows a natural father to
rebut the presumption of legitimacy of a child born to a married woman, e. g.,
where the husband is impotent or sterile, or where the husband and wife have
not been cohabiting, it is more likely that the husband already knows the child
is not his, and thus less likely that the paternity hearing will disrupt an
otherwise harmonious and apparently exclusive marital relationship.
[ Footnote
2 ] We do not understand what JUSTICE BRENNAN has in mind by an interest
"that society traditionally has thought important . . . without protecting
it." Post, at 140. The protection need not take the form of an explicit
constitutional provision or statutory guarantee, but it must at least exclude
(all that is necessary to decide the present case) a societal tradition of
enacting laws denying the interest. Nor do we understand why our practice of
limiting the Due Process Clause to traditionally protected interests turns the
Clause "into a redundancy," post, at 141. Its purpose is to prevent
future generations from lightly casting aside important traditional values -
not to enable this Court to invent new ones.
[ Footnote
3 ] JUSTICE BRENNAN asserts that only a "pinched conception of `the
family'" would exclude Michael, Carole, and Victoria from protection.
Post, at 145. We disagree. The family unit accorded traditional respect in our
society, which we have referred to as the "unitary family," is typified,
of course, by the marital family, but also includes the household of unmarried
parents and their children. Perhaps the concept can be expanded even beyond
this, but it will bear no resemblance to traditionally respected relationships
- and will thus cease to have any constitutional significance - if it is
stretched so far as to include the relationship established between a married
woman, her lover, and their child, during a 3-month sojourn in St. Thomas, or
during a subsequent 8-month period when, if he happened to be in Los Angeles,
he stayed with her and the child.
[ Footnote
4 ] JUSTICE BRENNAN insists that in determining whether a liberty interest
exists we must look at Michael's relationship with Victoria in isolation,
without reference to the circumstance that Victoria's mother was married to
someone else when the child was conceived, and that that woman and her husband
wish to raise the child as their own. See post, at 145-146. We cannot imagine
what compels this strange procedure of looking at the act which is assertedly
the subject of a liberty interest in isolation from its effect upon other
people - rather like inquiring whether there is a liberty interest in firing a
gun where the case at hand happens to involve its discharge into another
person's body. The logic of JUSTICE BRENNAN's position leads to the conclusion
that if Michael had begotten Victoria by rape, that fact would in no way affect
his possession of a liberty interest in his relationship with her.
[ Footnote
5 ] According to JUSTICE BRENNAN, Michael does not claim - and in order to
prevail here need not claim - a substantive right to maintain a parental
relationship with Victoria, but merely the right to "a hearing on the
issue" of his paternity. Post, at 156, n. 12. "Michael's challenge .
. . does not depend," we are told, "on his ability ultimately to
obtain visitation rights." Post, at 147. To be sure it does not depend
upon his ability ultimately to obtain those rights, but it surely depends upon
his asserting a claim to those rights, which is precisely what JUSTICE BRENNAN
denies. We cannot grasp the concept of a "right to a hearing" on the
part of a person who claims no substantive entitlement that the hearing will
assertedly vindicate.
[ Footnote
6 ] Justice Brennan criticized our methodology in using historical
traditions specifically relating to the rights of an adulterous natural father,
rather than inquiring more generally "whether parenthood is an interest
that historically has received our attention and protection." Post, at
139, 105 L.Ed.2d, at 116. There seems to us no basis for the contention that
this methodology is "nove[l]," post, at 140, 105 L.Ed.2d, at 117. For
example, in Bowers v. Hardwick, 478
U.S. 186, 92 L.Ed.2d 140 (1986), we noted that at the time the Fourteenth
Amendment was ratified all but 5 of the 37 States had criminal sodomy laws,
that all 50 of the States had such laws prior to 1961, and that 24 States and
the District of Columbia continued to have them; and we concluded from that
record, regarding that very specific aspect of sexual conduct, that "to
claim that a right to engage in such conduct is `deeply rooted in this Nation's
history and tradition' or `implicit in the concept of ordered liberty' is, at
best, facetious." Id., at 194. In Roe v. Wade, 410
U.S. 113, 35 L.Ed.2d 147 (1973), we spent about a fifth of our opinion
negating the proposition that there was a longstanding tradition of laws
proscribing abortion, Id., at 129-141.
We do not understand why, having rejected our focus upon the societal
tradition regarding the natural father's rights vis-a-vis a child whose mother
is married to another man, Justice Brennan would choose to focus instead upon
"parenthood." Why should the relevant category not be even more
general - perhaps "family relationships"; or "personal
relationships"; or even "emotional attachments in general"?
Though the dissent has no basis for the level of generality it would select, we
do: We refer to the most specific level at which a relevant tradition
protecting, or denying protection to, the asserted right can be identified. If,
for example, there were no societal tradition, either way, regarding the rights
of the natural father of a child adulterously conceived, we would have to consult,
and ((if possible) reason from, the traditions regarding natural fathers in
general. But there is such a more specific tradition, and it unqualifiedly
denies protection to such a parent.
One would think that Justice Brennan would appreciate the value of
consulting the most specific tradition available, since he acknowledges that
"[e]ven if we can agree . . . that `family' and `parenthood' are part of
the good life, it is absurd to assume that we can agree on the content of those
terms and destructive to pretend that we do." Post, at 141, 105 L.Ed.2d,
at 117. Because such general traditions provide such imprecise guidance, they
permit judges to dictate rather than discern the society's views. The need, if
arbitrary decisionmaking is to be avoided, to adopt the most specific tradition
as the point of reference - or at least to announce, as Justice Brennan
declines to do, some other criterion for selecting among the innumerable
relevant traditions that could be consulted - is well enough exemplified by the
fact that in the present case Justice Brennan's opinion and Justice O'Connor's
opinion, post, p 132, 105 L.Ed.2d, at 111-112, which disapproves this footnote,
both appeal to the tradition, but on the basis of the tradition they select
reach opposite results. Although assuredly having the virtue (if it be that) of
leaving judges free to decide as they think best when the unanticipated occurs,
a rule of law that binds neither by text nor by any particular, identifiable
tradition is no rule of law at all.
Finally, we may note that this analysis is not inconsistent with the result
in cases such as Griswold v. Connecticut, 381
U.S. 479, 14 L.Ed.2d 510 (1965), or Eisenstadt v Baird, 405
U.S. 438, 31 L.Ed.2d 349 (1972). None of those cases acknowledged a
longstanding and still extant societal tradition withholding the very right
pronounced to be the subject of a liberty interest and then rejected it.
Justice Brennan must do so here. In this case, the existence of such a
tradition, continuing to the present day, refutes any possible contention that
the alleged right is "so rooted in the traditions and conscience of our
people as to be ranked as fundamental," Snyder v Massachusetts, 291
U.S. 97, 105 L.Ed. 674, 90 ALR 575 (1934), or "implicit in the concept
of ordered liberty," Palko v. Connecticut, 302
U.S. 319, 325 , 82 L.Ed. 288 (1937.
[ Footnote
7 ] JUSTICE BRENNAN chides us for thus limiting our holding to situations
in which, as here, the husband and wife wish to raise her child jointly. The
dissent believes that without this limitation we would be unable to "rely
on the State's asserted interest in protecting the `unitary family' in denying
that Michael and Victoria have been deprived of liberty." Post, at 147. As
we have sought to make clear, however, and as the dissent elsewhere seems to
understand, see post, at 139, 140-141, 145, 147, we rest our decision not upon
our independent "balancing" of such interests, but upon the absence
of any constitutionally protected right to legal parentage on the part of an
adulterous natural father in Michael's situation, as evidenced by long
tradition. That tradition reflects a "balancing" that has already
been made by society itself. We limit our pronouncement to the relevant facts of
this case because it is at least possible that our traditions lead to a
different conclusion with regard to adulterous fathering of a child whom the
marital parents do not wish to raise as their own. It seems unfair for those
who disagree with our holding to include among their criticisms that we have
not extended the holding more broadly.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins, concurring in part.
I concur in all but footnote 6 of JUSTICE SCALIA's opinion. This footnote
sketches a mode of historical analysis to be used when identifying liberty
interests protected by the Due Process Clause of the Fourteenth Amendment that
may be somewhat inconsistent with our past decisions in this area. See Griswold
v. Connecticut, 381
U.S. 479 (1965); Eisenstadt v. Baird, 405
U.S. 438 (1972). On occasion the Court has characterized relevant
traditions protecting asserted rights at levels of generality that might not be
"the most specific level" available. Ante, at 127-128, n. 6. See
Loving v. Virginia, 388
U.S. 1, 12 (1967); Turner v. Safley, 482
U.S. 78, 94 (1987); cf. United States v. Stanley, 483
U.S. 669, 709 (1987) (O'CONNOR, J., concurring in part and dissenting in
part). I would not foreclose the unanticipated by the prior imposition of a
single mode of historical analysis. Poe v. Ullman, 367
U.S. 497, 542 , 544 (1961) (Harlan, J., dissenting).
JUSTICE STEVENS, concurring in the judgment.
As I understand this case, it raises two different questions about the
validity of California's statutory scheme. First, is Cal. Evid. Code Ann. 621
(West Supp. 1989) unconstitutional because it prevents Michael and Victoria
from obtaining a judicial determination that he is her biological father - even
if no legal rights would be affected by that determination? Second, does the
California statute deny appellants a fair opportunity to prove that Victoria's
best interests would be served by granting Michael visitation rights?
On the first issue I agree with JUSTICE SCALIA that the Federal Constitution
imposes no obligation upon a State to [491
U.S. 110, 133] "declare facts unless some legal consequence
hinges upon the requested declaration." Ante, at 126. "The actions of
judges neither create nor sever genetic bonds." Lehr v. Robertson, 463
U.S. 248, 261 (1983).
On the second issue I do not agree with JUSTICE SCALIA's analysis. He seems
to reject the possibility that a natural father might ever have a
constitutionally protected interest in his relationship with a child whose
mother was married to, and cohabiting with, another man at the time of the
child's conception and birth. I think cases like Stanley v. Illinois, 405
U.S. 645 (1972), and Caban v. Mohammed, 441
U.S. 380 (1979), demonstrate that enduring "family" relationships
may develop in unconventional settings. I therefore would not foreclose the
possibility that a constitutionally protected relationship between a natural
father and his child might exist in a case like this. Indeed, I am willing to
assume for the purpose of deciding this case that Michael's relationship with
Victoria is strong enough to give him a constitutional right to try to convince
a trial judge that Victoria's best interest would be served by granting him
visitation rights. I am satisfied, however, that the California statute, as
applied in this case, gave him that opportunity.
Section 4601 of the California Civil Code Annotated (West Supp. 1989)
provides:
"[R]easonable visitation
rights [shall be awarded] to a parent unless it is shown that the visitation
would be detrimental to the best interests of the child. In the discretion of
the court, reasonable visitation rights may be granted to any other person
having an interest in the welfare of the child." (Emphasis added.)
The presumption established by 621 denied Michael the
benefit of the first sentence of 4601 because, as a matter of law, he is not a
"parent." It does not, however, prevent him from proving that he is
an "other person having an interest in the welfare of the child." On
its face, therefore, the statute [491
U.S. 110, 134] plainly gave the trial judge the authority to
grant Michael "reasonable visitation rights."
I recognize that my colleagues have interpreted 621 as creating an absolute
bar that would prevent a California trial judge from regarding the natural
father as either a "parent" within the meaning of the first sentence
of 4601 or as "any other person" within the meaning of the second
sentence. See ante, at 116, 119; post, at 148-151 (BRENNAN, J., dissenting).
That is not only an unnatural reading of the statute's plain language, but it
is also not consistent with the California courts' reading of the statute.
Thus, in Vincent B. v. Joan R., 126 Cal. App. 3d 619, 179 Cal. Rptr. 9 (1981),
appeal dism'd, 459
U.S. 807 (1982), the California Court of Appeal, after deciding that the
621 presumption barred a natural father from proving paternity, went on to
consider the separate question whether it would be proper to allow visitation
pursuant to the second sentence of 4601:
"Finally, appellant contends
that even if Frank is conclusively presumed to be Z.'s father, appellant should
be allowed visitation rights, since Civil Code section 4601 gives discretion to
grant visitation rights to `any other person having an interest in the welfare
of the child.' We think it obvious that in the circumstances of this case such
court-ordered visitation would be detrimental to the best interests of the
child. Appellant's interest in visiting the child is based on his claim that
appellant is Z.'s father. Such claim is now determined to be legally
impossible. The mother does not wish the child to be visited by appellant.
Confusion, uncertainty, and embarrassment to the child would likely result from
a court order that appellant, who claims to be Z.'s biological father, is
entitled to visitation against the wishes of the mother. (Petitioner F. v.
Respondent R., supra, 430 A. 2d 1075, 1080.)" 126 Cal. App. 3d, at
627-628, 179 Cal. Rptr., at 13 (emphasis added). [491 U.S. 110, 135]
Supporting the court's decision that granting visitation
rights to Vincent would be contrary to the child's best interests was the fact
that "unlike the putative fathers in Stanley [v. Illinois, 405
U.S. 645 (1972),] and [In re] Lisa R. [, 13 Cal. 3d 636, 532 P.2d 123
(1975)], appellant has never lived with the mother and child, nor has he ever
supported the child." 126 Cal. App. 3d, at 626, 179 Cal. Rptr., at 12.
Similarly, in this case, the trial judge not only found the conclusive
presumption applicable, but also separately considered the effect of 4601 and
expressly found "that, at the present time, it is not in the best
interests of the child that the Plaintiff have visitation. The Court believes
that the existence of two (2) `fathers' as male authority figures will confuse
the child and be counter-productive to her best interests." Supp. App. to
Juris. Statement A-90 - A-91. In its opinion, the Court of Appeal also
concluded that Michael "is not entitled to rights of visitation under
section 4601," see 191 Cal. App. 3d 995, 1013, 236 Cal. Rptr. 810, 821
(1987), and then quoted the above excerpt from the opinion in Vincent B. v.
Joan R. As I read that opinion, it does not support the view that a natural
father cannot be an "other person" within the meaning of 4601;
rather, it indicates that the outcome depends largely on "the
circumstances of th[e] case." *
Under the circumstances of the case before us, Michael was given a fair
opportunity to show that he is Victoria's natural father, that he had developed
a relationship with her, and that her interests would be served by granting him
visitation rights. On the other hand, the record also shows that after its
rather shaky start, the marriage between Carole and Gerald developed a
stability that now provides Victoria with [491 U.S. 110, 136] a loving and harmonious family
home. In the circumstances of this case, I find nothing fundamentally unfair
about the exercise of a judge's discretion that, in the end, allows the mother
to decide whether her child's best interests would be served by allowing the
natural father visitation privileges. Because I am convinced that the trial
judge had the authority under state law both to hear Michael's plea for
visitation rights and to grant him such rights if Victoria's best interests so
warranted, I am satisfied that the California statutory scheme is consistent
with the Due Process Clause of the Fourteenth Amendment.
I therefore concur in the Court's judgment of affirmance.
[ Footnote
* ] For cases showing the California courts' willingness to decide 621
cases on a case-by-case basis, see, e. g., Michelle W. v. Ronald W., 39 Cal. 3d
354, 703 P.2d 88 (1985), app. dism'd, 474
U.S. 1043 (1986); In re Lisa R., 13 Cal. 3d 636, 532 P.2d 123, cert. denied
sub nom. Porzuczek v. Towner, 421
U.S. 1014 (1975).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join,
dissenting.
In a case that has yielded so many opinions as has this one, it is fruitful
to begin by emphasizing the common ground shared by a majority of this Court.
Five Members of the Court refuse to foreclose "the possibility that a
natural father might ever have a constitutionally protected interest in his
relationship with a child whose mother was married to, and cohabiting with,
another man at the time of the child's conception and birth." Ante, at 133
(STEVENS, J., concurring in judgment); see infra, at 141-147; post, at 157
(WHITE, J., dissenting). Five Justices agree that the flaw inhering in a conclusive
presumption that terminates a constitutionally protected interest without any
hearing whatsoever is a procedural one. See infra, at 153; post, at 163 (WHITE,
J., dissenting); ante, at 132 (STEVENS, J., concurring in judgment). Four
Members of the Court agree that Michael H. has a liberty interest in his
relationship with Victoria, see infra, at 143; post, at 157 (WHITE, J.,
dissenting), and one assumes for purposes of this case that he does, see ante,
at 133 (STEVENS, J., concurring in judgment).
In contrast, only one other Member of the Court fully endorses JUSTICE
SCALIA's view of the proper method of analyzing questions arising under the Due
Process Clause. [491 U.S. 110,
137] See ante, at 113; ante, at 132 (O'CONNOR, J., concurring in
part). Nevertheless, because the plurality opinion's exclusively historical
analysis portends a significant and unfortunate departure from our prior cases
and from sound constitutional decisionmaking, I devote a substantial portion of
my discussion to it.
Once we recognized that the "liberty" protected by the Due Process
Clause of the Fourteenth Amendment encompasses more than freedom from bodily
restraint, today's plurality opinion emphasizes, the concept was cut loose from
one natural limitation on its meaning. This innovation paved the way, so the
plurality hints, for judges to substitute their own preferences for those of
elected officials. Dissatisfied with this supposedly unbridled and uncertain
state of affairs, the plurality casts about for another limitation on the
concept of liberty.
It finds this limitation in "tradition." Apparently oblivious to
the fact that this concept can be as malleable and as elusive as
"liberty" itself, the plurality pretends that tradition places a
discernible border around the Constitution. The pretense is seductive; it would
be comforting to believe that a search for "tradition" involves
nothing more idiosyncratic or complicated than poring through dusty volumes on
American history. Yet, as JUSTICE WHITE observed in his dissent in Moore v.
East Cleveland, 431
U.S. 494, 549 (1977): "What the deeply rooted traditions of the
country are is arguable." Indeed, wherever I would begin to look for an
interest "deeply rooted in the country's traditions," one thing is
certain: I would not stop (as does the plurality) at Bracton, or Blackstone, or
Kent, or even the American Law Reports in conducting my search. Because reasonable
people can disagree about the content of particular traditions, and because
they can disagree even about which traditions are relevant to the definition of
"liberty," the plurality has not found the objective boundary that it
seeks. [491 U.S. 110, 138]
Even if we could agree, moreover, on the content and significance of
particular traditions, we still would be forced to identify the point at which
a tradition becomes firm enough to be relevant to our definition of liberty and
the moment at which it becomes too obsolete to be relevant any longer. The
plurality supplies no objective means by which we might make these
determinations. Indeed, as soon as the plurality sees signs that the tradition
upon which it bases its decision (the laws denying putative fathers like
Michael standing to assert paternity) is crumbling, it shifts ground and says
that the case has nothing to do with that tradition, after all. "[W]hat is
at issue here," the plurality asserts after canvassing the law on
paternity suits, "is not entitlement to a state pronouncement that
Victoria was begotten by Michael." Ante, at 126. But that is precisely
what is at issue here, and the plurality's last-minute denial of this fact
dramatically illustrates the subjectivity of its own analysis.
It is ironic that an approach so utterly dependent on tradition is so
indifferent to our precedents. Citing barely a handful of this Court's numerous
decisions defining the scope of the liberty protected by the Due Process Clause
to support its reliance on tradition, the plurality acts as though English
legal treatises and the American Law Reports always have provided the sole
source for our constitutional principles. They have not. Just as common-law
notions no longer define the "property" that the Constitution
protects, see Goldberg v. Kelly, 397
U.S. 254 (1970), neither do they circumscribe the "liberty" that
it guarantees. On the contrary, "`[l]iberty' and `property' are broad and
majestic terms. They are among the `[g]reat [constitutional] concepts . . .
purposely left to gather meaning from experience. . . . [T]hey relate to the
whole domain of social and economic fact, and the statesmen who founded this
Nation knew too well that only a stagnant society remains unchanged.'"
Board of Regents of State Colleges v. Roth, 408
U.S. 564, 571 (1972), quoting National [491 U.S. 110, 139] Ins. Co. v. Tidewater Co., 337
U.S. 582, 646 (1949) (Frankfurter, J., dissenting).
It is not that tradition has been irrelevant to our prior decisions.
Throughout our decisionmaking in this important area runs the theme that
certain interests and practices - freedom from physical restraint, marriage,
childbearing, childrearing, and others - form the core of our definition of
"liberty." Our solicitude for these interests is partly the result of
the fact that the Due Process Clause would seem an empty promise if it did not
protect them, and partly the result of the historical and traditional importance
of these interests in our society. In deciding cases arising under the Due
Process Clause, therefore, we have considered whether the concrete limitation
under consideration impermissibly impinges upon one of these more generalized
interests.
Today's plurality, however, does not ask whether parenthood is an interest
that historically has received our attention and protection; the answer to that
question is too clear for dispute. Instead, the plurality asks whether the
specific variety of parenthood under consideration - a natural father's
relationship with a child whose mother is married to another man - has enjoyed
such protection.
If we had looked to tradition with such specificity in past cases, many a
decision would have reached a different result. Surely the use of
contraceptives by unmarried couples, Eisenstadt v. Baird, 405
U.S. 438 (1972), or even by married couples, Griswold v. Connecticut, 381
U.S. 479 (1965); the freedom from corporal punishment in schools, Ingraham
v. Wright, 430
U.S. 651 (1977); the freedom from an arbitrary transfer from a prison to a
psychiatric institution, Vitek v. Jones, 445
U.S. 480 (1980); and even the right to raise one's natural but illegitimate
children, Stanley v. Illinois, 405
U.S. 645 (1972), were not "interest[s] traditionally protected by our
society," ante, at 122, at the time of their consideration by this Court.
If we had asked, therefore, in Eisenstadt, Griswold, Ingraham, Vitek, or
Stanley itself whether [491 U.S.
110, 140] the specific interest under consideration had been
traditionally protected, the answer would have been a resounding
"no." That we did not ask this question in those cases highlights the
novelty of the interpretive method that the plurality opinion employs today.
The plurality's interpretive method is more than novel; it is misguided. It
ignores the good reasons for limiting the role of "tradition" in
interpreting the Constitution's deliberately capacious language. In the
plurality's constitutional universe, we may not take notice of the fact that
the original reasons for the conclusive presumption of paternity are out of
place in a world in which blood tests can prove virtually beyond a shadow of a
doubt who sired a particular child and in which the fact of illegitimacy no
longer plays the burdensome and stigmatizing role it once did. Nor, in the
plurality's world, may we deny "tradition" its full scope by pointing
out that the rationale for the conventional rule has changed over the years, as
has the rationale for Cal. Evid. Code Ann. 621 (West Supp. 1989); 1
instead, our task is simply to identify a rule denying the asserted
interest and not to ask whether the basis for that rule - which is the true
reflection of the values undergirding it - has changed too often or too
recently to call the rule embodying that rationale a "tradition."
Moreover, by describing the decisive question as whether Michael's and
Victoria's interest is one that has been "traditionally protected by our
society," ante, at 122 (emphasis added), rather than one that society
traditionally has thought important (with or without protecting it), and by
suggesting that our sole function is to "discern the society's
views," ante, at 128, n. 6 (emphasis added), the plurality acts as if the
only purpose [491 U.S. 110, 141]
of the Due Process Clause is to confirm the importance of
interests already protected by a majority of the States. Transforming the
protection afforded by the Due Process Clause into a redundancy mocks those
who, with care and purpose, wrote the Fourteenth Amendment.
In construing the Fourteenth Amendment to offer shelter only to those
interests specifically protected by historical practice, moreover, the plurality
ignores the kind of society in which our Constitution exists. We are not an
assimilative, homogeneous society, but a facilitative, pluralistic one, in
which we must be willing to abide someone else's unfamiliar or even repellent
practice because the same tolerant impulse protects our own idiosyncracies.
Even if we can agree, therefore, that "family" and
"parenthood" are part of the good life, it is absurd to assume that
we can agree on the content of those terms and destructive to pretend that we
do. In a community such as ours, "liberty" must include the freedom
not to conform. The plurality today squashes this freedom by requiring specific
approval from history before protecting anything in the name of liberty.
The document that the plurality construes today is unfamiliar to me. It is
not the living charter that I have taken to be our Constitution; it is instead
a stagnant, archaic, hidebound document steeped in the prejudices and
superstitions of a time long past. This Constitution does not recognize that
times change, does not see that sometimes a practice or rule outlives its
foundations. I cannot accept an interpretive method that does such violence to
the charter that I am bound by oath to uphold.
The plurality's reworking of our interpretive approach is all the more
troubling because it is unnecessary. This is not a case in which we face a
"new" kind of interest, one that requires us to consider for the
first time whether the Constitution protects it. On the contrary, we confront
an interest - that of a parent and child in their relationship with each [491 U.S. 110, 142] other
- that was among the first that this Court acknowledged in its cases defining
the "liberty" protected by the Constitution, see, e. g., Meyer v.
Nebraska, 262
U.S. 390, 399 (1923); Skinner v. Oklahoma, 316
U.S. 535, 541 (1942); Prince v. Massachusetts, 321
U.S. 158, 166 (1944), and I think I am safe in saying that no one doubts
the wisdom or validity of those decisions. Where the interest under
consideration is a parent-child relationship, we need not ask, over and over
again, whether that interest is one that society traditionally protects.
Thus, to describe the issue in this case as whether the relationship
existing between Michael and Victoria "has been treated as a protected
family unit under the historic practices of our society, or whether on any
other basis it has been accorded special protection," ante, at 124, is to
reinvent the wheel. The better approach - indeed, the one commanded by our
prior cases and by common sense - is to ask whether the specific parent-child
relationship under consideration is close enough to the interests that we
already have protected to be deemed an aspect of "liberty" as well.
On the facts before us, therefore, the question is not what "level of
generality" should be used to describe the relationship between Michael
and Victoria, see ante, at 127, n. 6, but whether the relationship under
consideration is sufficiently substantial to qualify as a liberty interest
under our prior cases.
On four prior occasions, we have considered whether unwed fathers have a
constitutionally protected interest in their relationships with their children.
See Stanley v. Illinois, 405
U.S. 645 (1972); Quilloin v. Walcott, 434
U.S. 246 (1978); Caban v. Mohammed, 441
U.S. 380 (1979); and Lehr v. Robertson, 463
U.S. 248 (1983). Though different in factual and legal circumstances, these
cases have produced a unifying theme: although an unwed father's biological
link to his child does not, in and of itself, guarantee him a constitutional
stake in his relationship with that child, such a link combined with a
substantial parent-child relationship will do [491 U.S. 110, 143] so. 2
"When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by `com[ing] forward to participate in the
rearing of his child,' . . . his interest in personal contact with his child
acquires substantial protection under the Due Process Clause. At that point it
may be said that he `act[s] as a father toward his children.'" Lehr v.
Robertson, supra, at 261, quoting Caban v. Mohammed, supra, at 392, 389, n. 7.
This commitment is why Mr. Stanley and Mr. Caban won; why Mr. Quilloin and Mr.
Lehr lost; and why Michael H. should prevail today. Michael H. is almost
certainly Victoria D.'s natural father, has lived with her as her father, has
contributed to her support, and has from the beginning sought to strengthen and
maintain his relationship with her.
Claiming that the intent of these cases was to protect the "unitary
family," ante, at 123, the plurality waves Stanley, Quilloin, Caban, and
Lehr aside. In evaluating the plurality's dismissal of these precedents, it is
essential to identify its conception of the "unitary family." If, by
acknowledging that Stanley et al. sought to protect "the relationships that
develop within the unitary family," ibid., the plurality meant only to
describe the kinds of relationships that develop when parents and children live
together (formally or informally) as a family, then the plurality's vision of
these cases would be correct. But that is not the plurality's message. Though
it pays lipservice to the idea that marriage is not the crucial fact in denying
constitutional protection to the relationship between Michael and Victoria,
ante, at 123, n. 3, the plurality cannot mean what it says.
The evidence is undisputed that Michael, Victoria, and Carole did live
together as a family; that is, they shared the [491 U.S. 110, 144] same household, Victoria
called Michael "Daddy," Michael contributed to Victoria's support,
and he is eager to continue his relationship with her. Yet they are not, in the
plurality's view, a "unitary family," whereas Gerald, Carole, and
Victoria do compose such a family. The only difference between these two sets
of relationships, however, is the fact of marriage. The plurality, indeed,
expressly recognizes that marriage is the critical fact in denying Michael a
constitutionally protected stake in his relationship with Victoria: no fewer
than six times, the plurality refers to Michael as the "adulterous natural
father" (emphasis added) or the like. Ante, at 120; 127, n. 6; 128, n. 6;
129, n. 7; 130. See also ante, at 124 (referring to the "marital
family" of Gerald, Carole, and Victoria) (emphasis added); ante, at 129
(plurality's holding limited to those situations in which there is "an
extant marital family"). 3
However, the very premise of Stanley and the cases following it is that
marriage is not decisive in answering the question whether the Constitution
protects the parental relationship under consideration. These cases are, after
all, important precisely because they involve the rights of unwed fathers. It
is important to remember, moreover, that in Quilloin, Caban, and Lehr, the
putative father's demands would have disrupted a "unitary family" as
the plurality defines it; in each case, the husband of the child's mother
sought to adopt the child over the objections of the natural father. Significantly,
our decisions in those cases in no way relied on the need to protect the
marital family. Hence the plurality's claim that Stanley, Quilloin, Caban, and
Lehr [491 U.S. 110, 145] were
about the "unitary family," as that family is defined by today's
plurality, is surprising indeed.
The plurality's exclusive rather than inclusive definition of the
"unitary family" is out of step with other decisions as well. This
pinched conception of "the family," crucial as it is in rejecting
Michael's and Victoria's claims of a liberty interest, is jarring in light of
our many cases preventing the States from denying important interests or
statuses to those whose situations do not fit the government's narrow view of
the family. From Loving v. Virginia, 388
U.S. 1 (1967), to Levy v. Louisiana, 391
U.S. 68 (1968), and Glona v. American Guarantee & Liability Ins. Co., 391
U.S. 73 (1968), and from Gomez v. Perez, 409
U.S. 535 (1973), to Moore v. East Cleveland, 431
U.S. 494 (1977), we have declined to respect a State's notion, as manifested
in its allocation of privileges and burdens, of what the family should be.
Today's rhapsody on the "unitary family" is out of tune with such
decisions.
The plurality's focus on the "unitary family" is misdirected for
another reason. It conflates the question whether a liberty interest exists
with the question what procedures may be used to terminate or curtail it. It is
no coincidence that we never before have looked at the relationship that the
unwed father seeks to disrupt, rather than the one he seeks to preserve, in
determining whether he has a liberty interest in his relationship with his
child. To do otherwise is to allow the State's interest in terminating the
relationship to play a role in defining the "liberty" that is
protected by the Constitution. According to our established framework under the
Due Process Clause, however, we first ask whether the person claiming
constitutional protection has an interest that the Constitution recognizes; if
we find that he or she does, we next consider the State's interest in limiting
the extent of the procedures that will attend the deprivation of that interest.
See, e. g., Logan v. Zimmerman Brush Co., 455
U.S. 422, 428 (1982). By stressing the need to preserve the "unitary [491 U.S. 110, 146] family"
and by focusing not just on the relationship between Michael and Victoria but
on their "situation" as well, ante, at 124, today's plurality opinion
takes both of these steps at once.
The plurality's premature consideration of California's interests is evident
from its careful limitation of its holding to those cases in which "the
mother is, at the time of the child's conception and birth, married to, and
cohabitating with, another man, both of whom wish to raise the child as the
offspring of their union." Ante, at 129 (emphasis added). See also ante,
at 127 (describing Michael's liberty interest as the "substantive parental
rights [of] the natural father of a child conceived within, and born into, an
extant marital union that wishes to embrace the child"). The highlighted
language suggests that if Carole or Gerald alone wished to raise Victoria, or
if both were dead and the State wished to raise her, Michael and Victoria might
be found to have a liberty interest in their relationship with each other. 4
But that would be to say that whether Michael and Victoria have a liberty
interest varies with the State's interest in recognizing that interest, for it
is the State's interest in protecting the marital family - and not Michael and
Victoria's interest in their relationship with each other - that varies with
the status of Carole and Gerald's relationship. It is a bad day for due process
when [491 U.S. 110, 147] the
State's interest in terminating a parent-child relationship is reason to
conclude that that relationship is not part of the "liberty"
protected by the Fourteenth Amendment.
The plurality has wedged itself between a rock and a hard place. If it
limits its holding to those situations in which a wife and husband wish to
raise the child together, then it necessarily takes the State's interest into
account in defining "liberty"; yet if it extends that approach to
circumstances in which the marital union already has been dissolved, then it
may no longer rely on the State's asserted interest in protecting the
"unitary family" in denying that Michael and Victoria have been
deprived of liberty.
The plurality's confusion about the proper analysis of claims involving
procedural due process also becomes obvious when one examines the plurality's
shift in emphasis from the putative father's standing to his ability to obtain
parental prerogatives. See ante, at 126. In announcing that what matters is not
the father's ability to claim paternity, but his ability to obtain
"substantive parental rights," ante, at 127, the plurality turns
procedural due process upside down. Michael's challenge in this Court does not
depend on his ability ultimately to obtain visitation rights; it would be
strange indeed if, before one could be granted a hearing, one were required to
prove that one would prevail on the merits. The point of procedural due process
is to give the litigant a fair chance at prevailing, not to ensure a particular
substantive outcome. Nor does Michael's challenge depend on the success of
fathers like him in obtaining parental rights in past cases; procedural due
process is, by and large, an individual guarantee, not one that should depend
on the success or failure of prior cases having little or nothing to do with
the claimant's own suit. 5
[491 U.S. 110, 148]
Because the plurality decides that Michael and Victoria have no liberty
interest in their relationship with each other, it need consider neither the
effect of 621 on their relationship nor the State's interest in bringing about
that effect. It is obvious, however, that the effect of 621 is to terminate the
relationship between Michael and Victoria before affording any hearing
whatsoever on the issue whether Michael is Victoria's father. This refusal to
hold a hearing is properly analyzed under our procedural due process cases,
which instruct us to consider the State's interest in curtailing the procedures
accompanying the termination of a constitutionally protected interest. California's
interest, minute in comparison with a father's interest in his relationship
with his child, cannot justify its refusal to hear Michael out on his claim
that he is Victoria's father.
We must first understand the nature of the challenged statute: it is a law
that stubbornly insists that Gerald is Victoria's father, in the face of
evidence showing a 98 percent probability that her father is Michael. 6
What Michael wants is a chance to show that he is Victoria's father. By
depriving him of this opportunity, California prevents Michael from taking
advantage of the best-interest standard embodied in 4601 of California's Civil
Code, which directs that parents be given visitation rights unless "the
visitation would be detrimental to the best interests of the child." Cal.
Civ. Code Ann. 4601 (West Supp. 1989). 7
[491 U.S. 110, 149]
As interpreted by the California courts, however, 621 not only deprives
Michael of the benefits of the best-interest standard; it also deprives him of
any chance of maintaining his relationship with the child he claims to be his
own. When, as a result of 621, a putative father may not establish his
paternity, neither may he obtain discretionary visitation rights as a
"nonparent" under 4601. See Vincent B. v. Joan R., 126 Cal. App. 3d
619, 627-628, 179 Cal. Rptr. 9, 13 (1981), appeal dism'd, 459
U.S. 807 (1982); see also ante, at 116. JUSTICE STEVENS' assertion to the contrary,
ante, at 134-135, is mere wishful thinking. In concluding that the California
courts afford putative fathers like Michael a meaningful opportunity to show
that visitation rights would be in the best interests of their children, he
fastens upon the words "in the circumstances of this case" in Vincent
B. v. Joan R., supra, at 627, 179 Cal. Rptr., at 13. Ante, at 134-135. His
suggestion is that the court in that case conducted an individualized
assessment of the effect on the child of granting visitation rights to Vincent
B. [491 U.S. 110, 150]
The California appellate court's decision will not support JUSTICE STEVENS'
reading, as the court's reasoning applies to all putative fathers whom 621 has
denied the opportunity to show paternity. The court in Vincent B. began by
stressing the fact that the child's mother objected to visits from Vincent.
This circumstance is present in every single case falling under the conclusive
presumption of 621. Granting visitation rights to a person who claimed to be the
child's father, the court went on, also would cause "confusion,
uncertainty, and embarrassment." 126 Cal. App. 3d, at 628, 179 Cal. Rptr.,
at 13. Again, the notion that unacceptable confusion would result from awarding
visitation to a person who claims to be the child's father is equally
applicable to any case in which the "nonparent" under 4601 has lost
under 621. Finally, the court in Vincent B. approvingly cited Petitioner F. v.
Respondent R., 430 A. 2d 1075, 1080 (1981), in which the Supreme Court of
Delaware rejected a putative father's argument that Delaware's conclusive
presumption of paternity violated the Equal Protection Clause of the Federal
Constitution. 126 Cal. App. 3d, at 627, 179 Cal. Rptr., at 13. Emphasizing the
"permanent stigma and distress" that would result from granting
parental rights to a putative father whose child was born to the wife of
another man, the Delaware court decided that, given the State's interest in
"guard[ing] against assaults upon the family unit[,] . . . [t]he application
of the presumption of legitimacy of a child born to a married woman would be in
the child's interest in practically all cases." 430 A. 2d, at 1080
(emphasis added). Vincent B.'s reliance on Petitioner F. sends a clear signal
that the California court was issuing a ruling applicable to any case that fit
into 621's conclusive presumption, and that the "rough justice" that
prevailed under 621 also would suffice under 4601. This kind of determination
is a far cry from the individualized assessment that JUSTICE STEVENS would seem
to demand. Ante, at 135. 8
[491 U.S. 110, 151]
Likewise, in the case before us, the court's finding that "the existence
of two (2) `fathers' as male authority figures will confuse the child and be
counter-productive to her best interests," Supp. App. to Juris. Statement
A-90 - A-91, is not an evaluation of the relationship between Michael and
Victoria, but a restatement of the policies underlying 621 itself. It may well
be that the California courts' interpretation of 4601 as precluding visitation
rights for a putative father is "an unnatural reading" of that
provision, ante, at 134, but it is not for us to decide what California's
statute means.
Section 621 as construed by the California courts thus cuts off the
relationship between Michael and Victoria - a liberty interest protected by the
Due Process Clause - without affording the least bit of process. This case, in
other words, involves a conclusive presumption that is used to terminate a
constitutionally protected interest - the kind of rule that our preoccupation
with procedural fairness has caused us to condemn. See, e. g., Vlandis v.
Kline, 412
U.S. 441 (1973); Cleveland Board of Education v. LaFleur, 414
U.S. 632 (1974); Weinberger v. Salfi, 422
U.S. 749, 770 -772 (1975).
Gerald D. and the plurality turn a blind eye to the true nature of 621 by
protesting that, instead of being a conclusive presumption, it is a
"substantive rule of law." Ante, at 119. This facile observation
cannot save 621. It may be that all conclusive presumptions are, in a sense,
substantive rules of law; but 621 then belongs in that special category of
substantive rules that presumes a fact relevant to a certain class of
litigation, and it is that feature that renders 621 suspect under our prior
cases. To put the point differently, a conclusive presumption takes the form of
"no X's are Y's," and is typically accompanied by a rule such as,
". . . and only Y's may obtain a driver's license." (There would be
no need for the presumption unless something hinged on the fact presumed.) [491 U.S. 110, 152] Ignoring
the fact that 621 takes the form of "no X's are Y's," Gerald D. and
the plurality fix upon the rule following 621 - only Y's may assert parental
rights - and call 621 a substantive rule of law. This strategy ignores both the
form and the effect of 621.
In a further effort to show that 621 is not a conclusive presumption, Gerald
D. claims - and the plurality agrees, see ante, at 119 - that whether a man is
the biological father of a child whose family situation places the putative
father within 621 is simply irrelevant to the State. Brief for Appellee 14.
This is, I surmise, an attempt to avoid the implications of our cases
condemning the presumption of a fact that a State has made relevant or decisive
to a particular decision. See, e. g., Bell v. Burson, 402
U.S. 535 (1971). Yet the claim that California does not care about factual
paternity is patently false. California cares very much about factual paternity
when the husband is impotent or sterile, see Cal. Evid. Code Ann. 621(a) (West
Supp. 1989); it cares very much about it when the wife and husband do not share
the same home, see Vincent B. v. Joan R., 126 Cal. App. 3d, at 623-624, 179
Cal. Rptr., at 11; and it cares very much about it when the husband himself
declares that he is not the father, see Cal. Evid. Code Ann. 621(c) (West Supp.
1989). Indeed, under California law as currently structured, paternity is
decisive in choosing the standard that will be used in granting or denying
custody or visitation. The State, though selective in its concern for factual
paternity, certainly is not indifferent to it. 9
More fundamentally, California's purported indifference to factual
paternity does not show that 621 is not a conclusive [491 U.S. 110, 153] presumption. To say
that California does not care about factual paternity in the limited
circumstances of this case - where the husband is neither impotent nor sterile
nor living apart from his wife - is simply another way of describing its
conclusive presumption.
Not content to rest on its assertion that 621 does not, in fact, establish a
conclusive presumption, the plurality goes on to argue that a challenge to a
conclusive presumption must rest on substantive rather than procedural due
process. See ante, at 120-121. This is simply not so. In Weinberger v. Salfi,
supra, the Court identified two lines of cases involving challenges to
social-welfare legislation: those in which a legislative classification was
challenged as arbitrary and those in which a conclusive presumption was
attacked. The Court fit the complaint in Salfi into the former category on the
ground that the challenged law did not deprive anyone of a constitutionally
protected interest. 422
U.S., at 772 . Today's plurality, in contrast, classifies this case as one
invoking substantive due process before it considers the nature of the interest
at stake. Its support for this innovation includes several law-review
commentaries, two concurrences in the judgment, a dissent, and Salfi itself.
Ante, at 120-121. Even more disturbing than the plurality's reliance on these
infirm foundations is its failure to recognize that the defect from which
conclusive presumptions suffer is a procedural one: the State has declared a
certain fact relevant, indeed controlling, yet has denied a particular class of
litigants a hearing to establish that fact. This is precisely the kind of flaw
that procedural due process is designed to correct. 10
[491 U.S. 110, 154]
The question before us, therefore, is whether California has an interest so
powerful that it justifies granting Michael no hearing before terminating his
parental rights.
"Many controversies have raged
about the cryptic and abstract words of the Due Process Clause but there can be
no doubt that at a minimum they require that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case." Mullane v. Central Hanover Bank
& Trust Co., 339
U.S. 306, 313 (1950). When a State seeks to limit the procedures that will
attend the deprivation of a constitutionally protected interest, it is only the
State's interest in streamlining procedures that is relevant. See, e. g.,
Mathews v. Eldridge, 424
U.S. 319, 335 (1976). A State may not, in other words, justify abbreviated
procedures on the ground that it wishes to pay welfare benefits to fewer people
or wants to reduce the number of tenured professors on its payroll. It would be
strange indeed if a State could curtail procedures with the explanation that it
was hostile to the underlying, constitutionally protected interest.
The purported state interests here, however, stem primarily
from the State's antagonism to Michael's and Victoria's constitutionally
protected interest in their relationship with each other and not from any
desire to streamline procedures. Gerald D. explains that 621 promotes marriage,
maintains the relationship between the child and presumed father, and protects
the integrity and privacy of the matrimonial family. Brief for Appellee 24. It
is not, however, 621, but the best-interest principle, that protects a stable
marital relationship and maintains the relationship between the child and
presumed father. These interests are implicated by the determination of who
gets parental rights, not by the determination of who is the father; in the
hearing that Michael seeks, parental rights are not the issue. Of the
objectives that Gerald stresses, therefore, only the preservation of family [491 U.S. 110, 155] privacy
is promoted by the refusal to hold a hearing itself. Yet 621 furthers even this
objective only partially.
Gerald D. gives generous proportions to the privacy protected by 621,
asserting that this provision protects a couple like Gerald and Carole from
answering questions on such matters as "their sexual habits and practices
with each other and outside their marriage, their finances, and their thoughts,
beliefs, and opinions concerning their relationship with each other and with
Victoria." Id., at 25. Yet invalidation of 621 would not, as Gerald
suggests, subject Gerald and Carole to public scrutiny of all of these private
matters. Family finances and family dynamics are relevant, not to paternity, but
to the best interests of the child - and the child's best interests are not, as
I have stressed, in issue at the hearing that Michael seeks. The only private
matter touching on the paternity presumed by 621 is the married couple's sex
life. Even there, 621 as interpreted by California's intermediate appellate
courts pre-empts inquiry into a couple's sexual relations, since
"cohabitation" consists simply of living under the same roof
together; the wife and husband need not even share the same bed. See, e. g.,
Vincent B. v. Joan R., 126 Cal. App. 3d 619, 179 Cal. Rptr. 9 (1981).
Admittedly, 621 does not foreclose inquiry into the husband's fertility or
virility - matters that are ordinarily thought of as the couple's private
business. In this day and age, however, proving paternity by asking intimate
and detailed questions about a couple's relationship would be decidedly
anachronistic. Who on earth would choose this method of establishing fatherhood
when blood tests prove it with far more certainty and far less fuss? The
State's purported interest in protecting matrimonial privacy thus does not
measure up to Michael's and Victoria's interest in maintaining their
relationship with each other. 11
[491 U.S. 110, 156]
Make no mistake: to say that the State must provide Michael with a hearing
to prove his paternity is not to express any opinion of the ultimate state of
affairs between Michael and Victoria and Carole and Gerald. In order to change
the current situation among these people, Michael first must convince a court
that he is Victoria's father, and even if he is able to do this, he will be
denied visitation rights if that would be in Victoria's best interests. See
Cal. Civ. Code Ann. 4601 (West Supp. 1989). It is elementary that a
determination that a State must afford procedures before it terminates a given
right is not a prediction about the end result of those procedures. 12
The atmosphere surrounding today's decision is one of make-believe.
Beginning with the suggestion that the situation [491 U.S. 110, 157] confronting us here does not
repeat itself every day in every corner of the country, ante, at 113, moving on
to the claim that it is tradition alone that supplies the details of the
liberty that the Constitution protects, and passing finally to the notion that
the Court always has recognized a cramped vision of "the family,"
today's decision lets stand California's pronouncement that Michael - whom
blood tests show to a 98 percent probability to be Victoria's father - is not
Victoria's father. When and if the Court awakes to reality, it will find a
world very different from the one it expects.
[ Footnote
1 ] See In re Marriage of Sharyne and Stephen B., 124 Cal. App. 3d 524,
528-531, 177 Cal. Rptr. 429, 431-433 (1981) (noting that California courts
initially justified conclusive presumption of paternity on the ground that
biological paternity was impossible to prove, but that the preservation of family
integrity became the rule's paramount justification when paternity tests became
reliable).
[ Footnote
2 ] The plurality's claim that "[t]he logic of [my] position leads to
the conclusion that if Michael had begotten Victoria by rape, that fact would
in no way affect his possession of a liberty interest in his relationship with
her," ante, at 124, n. 4, ignores my observation that a mere biological
connection is insufficient to establish a liberty interest on the part of an
unwed father.
[ Footnote
3 ] In one place, the plurality opinion appears to suggest that the length
of time that Michael and Victoria lived together is relevant to the question
whether they have a liberty interest in their relationship with each other. See
ante, at 123, n. 3. The point is not pursued, however, and in any event I am
unable to find in the traditions on which the plurality otherwise exclusively
relies any emphasis on the duration of the relationship between the putative
father and child.
[ Footnote
4 ] Note that the plurality presumably would disapprove the California
courts' holdings in Vincent B. v. Joan R., 126 Cal. App. 3d 619, 179 Cal. Rptr.
9 (1981) ( 621 defeated putative father's interest even where husband and wife
divorced at the time of the paternity action), and Michelle W. v. Ronald W., 39
Cal. 3d 354, 703 P.2d 88 (1985) ( 621 defeated putative father's interest even
where mother had married putative father and divorced man to whom she had been
married at time of conception and birth). To suggest, moreover, that "it
is at least possible that our traditions lead to a different conclusion"
in cases such as Vincent B. and Michelle W., ante, at 129, n. 7, is to express
an optimism about our ability to identify "traditions" with
microscopic precision that I do not share, and a willingness to slice society
up into minuscule pieces, based only on tradition, that I cannot endorse.
[ Footnote
5 ] One need only look as far as Quilloin v. Walcott, 434
U.S. 246, 255 (1978), to understand why an unwed father might lose for
reasons having nothing to do with his own relationship with the child: there,
we approved the use of a "best interest" standard, rather than an
"unfitness" standard, [491
U.S. 110, 148] for an unwed father who objected to the adoption
of his child by another man.
[ Footnote
6 ] JUSTICE STEVENS' claim that "Michael was given a fair opportunity
to show that he is Victoria's natural father," ante, at 135, ignores the
fact that this case is before us precisely because California law refuses to
allow men like Michael such an opportunity.
[ Footnote
7 ] Showing a startling misunderstanding of the stakes in this case, the
plurality characterizes the issue at the hearing that Michael seeks as [491 U.S. 110, 149] "whether,
in the particular circumstances of his case, California's policies would best
be served by giving him parental rights." Ante, at 120. The hearing that
the plurality describes is merely one that the California courts hold in
response to constitutional challenges such as those lodged here, see, e. g.,
Michelle W. v. Ronald W., 39 Cal. 3d, at 363, 703 P.2d, at 93; it is not the
hearing that Michael seeks as the end result of this lawsuit. The plurality's
confusion is further evident in its announcement that "what is at issue
here is not entitlement to a state pronouncement that Victoria was begotten by
Michael." Ante, at 126 (emphasis added). That is precisely what is at
issue in the hearing that Michael seeks.
JUSTICE STEVENS exhibits the same misunderstanding in pointing to Michelle
W. and In re Lisa R., 13 Cal. 3d 636, 532 P.2d 123 (1975), as evidence of
"the California courts' willingness to decide 621 cases on a case-by-case
basis." Ante, at 135, n. This "case-by-case" analysis is not the
result of a flexible interpretation of 621, but is the courts' response to the
many constitutional challenges brought against 621. Similarly, Michael was
given an opportunity to show that "he had developed a relationship with
[Victoria]," ante, at 135, only because he launched this constitutional
attack on 621.
[ Footnote
8 ] JUSTICE STEVENS incorrectly suggests that the court in Vincent B. based
its denial of visitation rights under 4601 partly on the lack of an [491 U.S. 110, 151] established
relationship between Vincent B, and the child. Ante, at 135. In fact, the court
did not even mention the specific relationship between these two people in
coming to its decision under 4601. See 126 Cal. App. 3d, at 628, 179 Cal.
Rptr., at 13.
[ Footnote 9 ] In this respect, the plurality is mistaken in suggesting that "there is no difference between a rule which says that the marital husband shall be irrebuttably presumed to be the father, and a rule which says