Are human beings any different than the birds? Take the
case of rich oil executive Gerald D. and his beautiful wife, international
model Carole. Early on in the marriage, Carole had an adulterous
and productive affair with neighbor and friend Michael H. which
resulted in the birth of Victoria D. For a time, Carole lived
with Michael who held out Victoria as his biological daughter,
which indeed she was. Eventually, Carole and her baby left
Michael H, and returned to her legal husband, Gerald D. The
problem was that Michael refused to relinquish his role as father
and parent, despite the wishes of the now happily reunited Carole
and Gerald D. The question the court faced is who is the
family? Is it Michael, his biological daughter, and Carole,
his erstwhile wife? Or is Gerald, the true father, and along
with Carole and Vicky, the true family? Michael’s genetic
contribution to little Vicky D. is uncontested, but, under state
law, he had no legal standing to assert his parentage. A
child born to a married woman is presumed to be a child of the
marriage. Under California state law, this presumption could
not be rebutted as long as the husband was not impotent or sterile. This
means that, as long as the married parents accept a child as their
own, the real-life biological father has no ability to establish
paternity, or to have a relationship with her. Michael questioned
the legality of the statute, arguing that his right to have a relationship
with his biological daughter was a fundamental, constitutional
right – a liberty interest – that no state could strip
From the biological father’s perspective, the inability
to forge a bond with the child may not be as disastrous as Michael
H believes. Men, by nature, spend considerable resources
on mating efforts, rather than on parenting. Because of the
differences in male and female roles favored by natural selection,
males end up becoming mating specialists, while females invest
in parenting. Low, B.S., Why Sex Matters: A Darwinian
Look at Human Behavior, Princeton University Press, 2000,
Pages 46-48. Whether the male is able to provide parenting
energy may ultimately be insignificant to the success of the child
as long as the female is willing to do so, which apparently she
is in most cases. If the baby survives to reproductive age
and spawns its own children, dad’s “mating-specialty” genes
are passed on to another generation, despite his failure at nurturing.
SUPREME COURT OF THE UNITED STATES,
491 U.S. 110;
109 S. Ct. 2333; 105 L. Ed. 2d 91; 1989 U.S. LEXIS 2977; 57 U.S.L.W.
(October 11, 1988, Argued; June 15, 1989, Decided)
JUSTICE SCALIA announced the judgment of the Court and delivered
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
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 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 quasifamily
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 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
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 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.
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
"(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.
"(b) Notwithstanding the provisions of subdivision (a), if
the court finds that the conclusions of all the experts, as disclosed
by the evidence based upon blood tests performed pursuant to Chapter
2 (commencing with Section 890) of Division 7 are that the husband
is not the father of the child, the question of paternity of the
husband shall be resolved accordingly.
"(c) The notice of motion for blood tests under subdivision
(b) may be raised by the husband not later than two years from
the child's date of birth.
"(d) The notice of motion for blood tests under subdivision
(b) may be raised by the mother of the child not later than two
years from the child's date of birth if the child's biological
father has filed an affidavit with the court acknowledging paternity
of the child.
"(e) The provisions of subdivision (b) shall not apply to
any case coming within the provisions of Section 7005 of the Civil
Code [dealing with artificial insemination] or to any case in which
the wife, with the consent of the husband, conceived by means of
a surgical procedure."
We address first the claims of Michael. At the outset,
it is necessary to clarify what he sought and what he was denied.
California law, like nature itself, makes no provision for dual
fatherhood. Michael was seeking to be declared the father of Victoria.
The immediate benefit he evidently sought to obtain from that status
was visitation rights. See Cal. Civ. Code Ann. § 4601 (West
1983) (parent has statutory right to visitation "unless it
is shown that such visitation would be detrimental to the best
interests of the child"). But if Michael were successful in
being declared the father, other rights would follow -- most importantly,
the right to be considered as the parent who should have custody,
Cal. Civ. Code Ann. § 4600 (West 1983), a status which "embrace[s]
the sum of parental rights with respect to the rearing of a child,
including the child's care; the right to the child's services and
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 § 60.02[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 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
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. 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 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. 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 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.
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 [*125] husband
nor wife [could] be a witness to prove access or nonaccess." J.
Schouler, Law of the Domestic Relations § 225, p. 306 (3d
ed. 1882); R. Graveson & F. Crane, A Century of Family Law:
1857-1957, p. 158 (1957). The primary policy rationale underlying
the common law's severe restrictions on rebuttal of the presumption
appears to have been an aversion to declaring children illegitimate,
see Schouler, supra, § 225, at 306-307; M. Grossberg, Governing
the Hearth 201 (1985), thereby depriving them of rights of inheritance
and succession, 2 J. Kent, Commentaries on American Law *175, and
likely making them wards of the state. A secondary policy concern
was the interest in promoting the "peace and tranquillity
of States and families," Schouler, supra, § 225, at 304,
quoting Boullenois, Traite des Status, bk. 1, p. 62, a goal that
is obviously impaired by facilitating suits against husband and
wife asserting that their children are illegitimate. Even though,
as bastardy laws became less harsh, "[j]udges in both [England
and the United States] gradually widened the acceptable range of
evidence that could be offered by spouses, and placed restraints
on the 'four seas rule' . . . [,] the law retained a strong bias
against ruling the children of married women illegitimate." Grossberg,
supra, at 202.
We have found nothing in the older sources, nor in the older cases,
addressing specifically the power of the natural father to assert
parental rights over a child born into a woman's existing marriage
with another man. Since it is Michael's burden to establish that
such a power (at least where the natural father has established
a relationship with the child) is so deeply embedded within our
traditions as to be a fundamental right, the lack of evidence alone
might defeat his case. But the evidence shows that even in modern
times -- when, as we have noted, the rigid protection of the marital
family has in other respects been relaxed -- the ability of a person
in Michael's position to claim paternity has not been generally
acknowledged. For example, a 1957 annotation on the subject: "Who
may dispute presumption of legitimacy of 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.