Constitutional Law Cases: Rehnquist Court
1986 - 1989
U.S. Supreme Court
MICHAEL H. v. GERALD D., 491 U.S. 110 (1989)
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.
I
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).
II
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."
III
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 tranquility 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.
IV
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.
Footnotes
[ 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 decision-making 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
decision-making, I devote a substantial portion of my discussion to it.
I
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
decision-making 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.
II
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
lip service 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]
III
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.
A
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]
B
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
IV
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 that the adulterous natural father
shall not be recognized as the legal father." Ante, at 120. In the latter case, the
State has not made paternity the predominant concern in child-custody disputes and
then told some putative fathers that they may not prove their paternity.
[ Footnote 10 ] We recognized as much in Caban v. Mohammed, 441 U.S. 380, 385 , n.
3 (1979), in which we explicitly described Stanley v. Illinois, 405 U.S. 645 (1972),
as a case involving procedural due process. The plurality's bald statement that the
holding in Stanley did not rely on procedural due process is therefore incorrect.
See ante, at 120.
[ Footnote 11 ] Thus, in concluding that 621 "exclud[es] inquiries into the child's
paternity that would be destructive of family integrity and privacy," ante, at 120,
the plurality exaggerates the extent to which these interests would be threatened
by the elimination of 621's presumption. On the other hand, [491 U.S. 110, 156] if
the State's foremost interest is in protecting the husband from discovering that he
may not be the father of his wife's children, as the plurality suggests, see ante,
at 120, n. 1, then 621 is unhelpful indeed. Since "co-habitation" under California
law includes sharing the same roof but not the same bed and since a person need only
make a phone call in order to unsettle a husband's certainty in the paternity of his
wife's children, 621 will do little to prevent such discoveries. See also post, at
162 (WHITE, J., dissenting).
[ Footnote 12 ] The plurality's failure to see this point causes it to misstate Michael's
claim in the following way: "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." Ante, at 121. Michael does not claim that the State
may not, under any circumstance, terminate his relationship with Victoria; instead,
he simply claims that the State may not do so without affording him a hearing on the
issue - paternity - that it deems vital to the question whether their relationship
may be discontinued. The plurality makes Michael's claim easier to knock down by turning
it into such a big target.
The plurality's misunderstanding of Michael's claim also leads to its assertion that
"to provide protection to an adulterous natural father is to deny protection to a
marital father." Ante, at 130. To allow Michael a chance to prove his paternity, however,
in no way guarantees that Gerald's relationship with Victoria will be changed.
JUSTICE WHITE, with whom JUSTICE BRENNAN joins, dissenting.
California law, as the plurality describes it, ante, at 119, tells us that, except
in limited circumstances, California declares it to be "irrelevant for paternity purposes
whether a child conceived during, and born into, an existing marriage was begotten
by someone other than the husband" (emphasis in original). This I do not accept, for
the fact that Michael H. is the biological father of Victoria is to me highly relevant
to whether he has rights, as a father or otherwise, with respect to the child. Because
I believe that Michael H. has a liberty interest that cannot be denied without due
process of the law, I must dissent.
I
Like JUSTICES BRENNAN, MARSHALL, BLACKMUN, and STEVENS, I do not agree with the plurality
opinion's conclusion that a natural father can never "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). Prior cases here have recognized the liberty interest
of a father in his relationship with his child. In none of these cases did we indicate
that the father's rights were dependent on the marital status of the mother or biological
father. The basic principle enunciated [491 U.S. 110, 158] in the Court's unwed father
cases is that an unwed father who has demonstrated a sufficient commitment to his
paternity by way of personal, financial, or custodial responsibilities has a protected
liberty interest in a relationship with his child. 1
We have not before faced the question of a biological father's relationship with
his child when the child was born while the mother was married to another man. On
several occasions however, we have considered whether a biological father has a constitutionally
cognizable interest in an opportunity to establish paternity. Stanley v. Illinois,
405 U.S. 645 (1972), recognized the biological father's right to a legal relationship
with his illegitimate child, holding that the Due Process Clause of the Fourteenth
Amendment entitled the biological father to a hearing on his fitness before his illegitimate
children could be removed from his custody. We rejected the State's treatment of Stanley
"not as a parent but as a stranger to his children." Id., at 648.
Quilloin v. Walcott, 434 U.S. 246, 255 (1978), also expressly recognized due process
rights in the biological father, even while holding that those rights were not impermissibly
burdened by the State's application of a "best interests of the child" standard. Caban
v. Mohammed, 441 U.S. 380 [491 U.S. 110, 159] (1979), invalidated on equal protection
grounds a statute under which a man's children could be adopted by their natural mother
and her husband without the natural father's consent.
In Lehr v. Robertson, 463 U.S. 248, 261 -262 (1983), though holding against the father
in that case, the Court said clearly that fathers who have participated in raising
their illegitimate children and have developed a relationship with them have constitutionally
protected parental rights. Indeed, the Court in Lehr suggested that States must provide
a biological father of an illegitimate child the means by which he may establish his
paternity so that he may have the opportunity to develop a relationship with his child.
The Court upheld a stepparent adoption over the natural father's objections, but acknowledged
that "the existence or nonexistence of a substantial relationship between parent and
child is a relevant criterion in evaluating both the rights of the parent and the
best interests of the child." Id., at 266-267. There, however, the father had never
established a custodial, personal, or financial relationship with his child. Lehr
had never lived with the child or the child's mother after the birth of the child
and had never provided any financial support.
In the case now before us, Michael H. is not a father unwilling to assume his responsibilities
as a parent. To the contrary, he is a father who has asserted his interests in raising
and providing for his child since the very time of the child's birth. In contrast
to the father in Lehr, Michael had begun to develop a relationship with his daughter.
There is no dispute on this point. Michael contributed to the child's support. Michael
and Victoria lived together (albeit intermittently, given Carole's itinerant lifestyle).
There is a personal and emotional relationship between Michael and Victoria, who grew
up calling him "Daddy." Michael held Victoria out as his daughter and contributed
to the child's financial support. (Even appellee concedes that Michael has "made greater
efforts and had more success in establishing a [491 U.S. 110, 160] father-child relationship"
than did Mr. Lehr. Brief for Appellee 13, n. 6.) The mother has never denied, and
indeed has admitted, that Michael is Victoria's father. 2 Lehr was predicated on the
absence of a substantial relationship between the man and the child and emphasized
the "difference between the developed parent-child relationship that was implicated
in Stanley and Caban, and the potential relationship involved in Quilloin and [Lehr]."
Lehr, supra, at 261. "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,' Caban,
supra, at 392, his interest in personal contact with his child acquires substantial
protection under the Due Process Clause." Lehr, supra, at 261. The facts in this case
satisfy the Lehr criteria, which focused on the relationship between father and child,
not on the relationship between father and mother. Under Lehr a "mere biological relationship"
is not enough, but in light of Carole's vicissitudes, what more could Michael have
done? It is clear enough that Michael more than meets the mark in establishing the
constitutionally protected liberty interest discussed in Lehr and recognized in Stanley
v. Illinois, supra, and Caban v. Mohammed, supra. He therefore has a liberty interest
entitled to protection under the Due Process Clause of the Fourteenth Amendment.
II
California plainly denies Michael this protection, by refusing him the opportunity
to rebut the State's presumption that the mother's husband is the father of the child.
California law not only deprives Michael of a legal parent-child relationship with
his daughter Victoria but even denies him the opportunity to introduce blood-test
evidence to rebut the demonstrable [491 U.S. 110, 161] fiction that Gerald is Victoria's
father. 3 Unlike Lehr, Michael has not been denied notice. He has, most definitely,
however, been denied any real opportunity to be heard. The grant of summary judgment
against Michael was based on the conclusive presumption of Cal. Evid. Code Ann. 621
(West Supp. 1989), which denied him the opportunity to prove that he is Victoria's
biological father. The Court gives its blessing to 621 by relying on the State's asserted
interests in the integrity of the family (defined as Carole and Gerald) and in protecting
Victoria from the stigma of illegitimacy and by balancing away Michael's interest
in establishing that he is the father of the child.
The interest in protecting a child from the social stigma of illegitimacy lacks any
real connection to the facts of a case where a father is seeking to establish, rather
than repudiate, paternity. The "stigma of illegitimacy" argument harks back to ancient
common law when there were no blood tests to ascertain that the husband could not
"by the laws of nature" be the child's father. Judicial process refused to declare
that a child born in wedlock was illegitimate unless the proof was positive. The only
such proof was physical absence or impotency. But we have now clearly recognized the
use of blood tests as an authoritative means of evaluating allegations of paternity.
See, e. g., Little v. Streater, 452 U.S. 1, 6 -7 (1981). I see no reason to debate
the plurality's multilingual explorations into "spousal nonaccess" and ancient policy
concerns behind bastardy laws. It may be true that a child conceived in an extramarital
relationship would [491 U.S. 110, 162] be considered a "bastard" in the literal sense
of the word, but whatever stigma remains in today's society is far less compelling
in the context of a child of a married mother, especially when there is a father asserting
paternity and seeking a relationship with his child. It is hardly rare in this world
of divorce and remarriage for a child to live with the "father" to whom her mother
is married, and still have a relationship with her biological father.
The State's professed interest in the preservation of the existing marital unit is
a more significant concern. To be sure, the intrusion of an outsider asserting that
he is the father of a child whom the husband believes to be his own would be disruptive
to say the least. On the facts of this case, however, Gerald was well aware of the
liaison between Carole and Michael. The conclusive presumption of evidentiary rule
621 virtually eliminates the putative father's chances of succeeding in his effort
to establish paternity, but it by no means prevents him from asserting the claim.
It may serve as a deterrent to such claims but does not eliminate the threat. Further,
the argument that the conclusive presumption preserved the sanctity of the marital
unit had more sway in a time when the husband was similarly prevented from challenging
paternity. 4 [491 U.S. 110, 163]
"The emphasis of the Due Process Clause is on `process.'" Moore v. East Cleveland,
431 U.S. 494, 542 (1977) (WHITE, J., dissenting). I fail to see the fairness in the
process established by the State of California and endorsed by the Court today. Michael
has evidence which demonstrates that he is the father of young Victoria. Yet he is
blocked by the State from presenting that evidence to a court. As a result, he is
foreclosed from establishing his paternity and is ultimately precluded, by the State,
from developing a relationship with his child. "A fundamental requirement of due process
is `the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394 . It is an
opportunity which must be granted at a meaningful time and in a meaningful manner."
Armstrong v. Manzo, 380 U.S. 545, 552 (1965). I fail to see how Michael was granted
any meaningful opportunity to be heard when he was precluded at the very outset from
introducing evidence which would support his assertion of paternity. Michael has never
been afforded an opportunity to present his case in any meaningful manner.
As the Court has said: "The significance of the biological connection is that it
offers the natural father an opportunity that no other male possesses to develop a
relationship with his offspring. If he grasps that opportunity and accepts some measure
of responsibility for the child's future, he may enjoy the blessings of the parent-child
relationship and make uniquely valuable contributions to the child's development."
Lehr, 463 U.S., at 262 . It is as if this passage was addressed to Michael. Yet the
plurality today recants. Michael eagerly grasped the opportunity to have a relationship
with his daughter (he lived with her; he declared her to be his child; he provided
financial support for her) and still, with today's opinion, his opportunity has vanished.
He has been rendered a stranger to his child.
Because Cal. Evid. Code Ann. 621, as applied, should be held unconstitutional under
the Due Process Clause of the Fourteenth Amendment, I respectfully dissent.
[ Footnote 1 ] Lehr v. Robertson, 463 U.S. 248, 259 -260 (1983), emphasized the distinction
between "a mere biological relationship and an actual relationship of parental responsibility."
In the dissent to Lehr, I said: "As Jessica's biological father, Lehr either had an
interest protected by the Constitution or he did not. If the entry of the adoption
order in this case deprived Lehr of a constitutionally protected interest, he is entitled
to notice and an opportunity to be heard before the order can be accorded finality."
Id., at 268 (footnote omitted). I rejected the majority's approach which purported
to analyze the particular facts of the case in order to determine whether Mr. Lehr
had a constitutionally protected liberty interest. I stressed the interest that a
natural parent has in his child, "one that has long been recognized and accorded constitutional
protection." Id., at 270. Whether or not the majority in Lehr was in error, on the
facts of the instant case, even Lehr's more demanding standard is clearly satisfied.
[ Footnote 2 ] As the plurality concedes, Carole signed a stipulation in April 1984
acknowledging that Michael was Victoria's father. Ante, at 114-115.
[ Footnote 3 ] While the ultimate resolution of Michael's case, were he permitted
to introduce such evidence, might well be visitation rights or even custody of the
child, it is important to keep in mind that the question at issue here is not whether
he should be granted visitation or custody but simply whether he can take the first
step in any such proceeding. Whatever the end result, Michael is simply asking that
he be permitted to offer proof that he is Victoria's father. In the instant case,
that is likely to mean that he would introduce the blood tests that he and Carole
took and which show that Michael is Victoria's father.
[ Footnote 4 ] Even in the last quarter century, under California law, a husband
whose blood test definitively showed he could not be the father of the child born
to his wife was nonetheless not permitted to present this evidence to a court in order
to refute the conclusive presumption of paternity. In 1967, however, the California
courts began to erode the presumption as it applied to the husband, providing the
husband with at least some opportunity to demonstrate that he was not the child's
father. Jackson v. Jackson, 67 Cal. 2d 245, 430 P.2d 289 (1967). In 1980, the California
Legislature amended 621 of its Evidence Code in order to permit the husband an opportunity
to overcome the presumption that he is the father of his wife's child if he raises
the notice of motion for blood tests not later than two years from the birth of the
child. (So much for the State's interest in protecting the child from the stigma of
illegitimacy!) [491 U.S. 110, 164]