Michael H. v. Gerald D./Dissent Brennan

by William J. Brennan, Jr.

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. See ante, at 113; ante, at 132 (O'CONNOR, J., concurring in part). Nevertheless, because the plurality opinion's exclusively historical analysis portends a significant and unfortunate departure from our prior cases and from sound constitutional decisionmaking, I devote a substantial portion of my discussion to it.

* Once we recognized that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment encompasses more than freedom from bodily restraint, today's plurality opinion emphasizes, the concept was cut loose from one natural limitation on its meaning. This innovation paved the way, so the plurality hints, for judges to substitute their own preferences for those of elected officials. Dissatisfied with this supposedly unbridled and uncertain state of affairs, the plurality casts about for another limitation on the concept of liberty.

It finds this limitation in "tradition." Apparently oblivious to the fact that this concept can be as malleable and as elusive as "liberty" itself, the plurality pretends that tradition places a discernible border around the Constitution. The pretense is seductive; it would be comforting to believe that a search for "tradition" involves nothing more idiosyncratic or complicated than poring through dusty volumes on American history. Yet, as Justice WHITE observed in his dissent in Moore v. East Cleveland, 431 U.S. 494, 549, 97 S.Ct. 1932, 1961, 52 L.Ed.2d 531 (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.

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, 90 S.Ct. 1011, 25 L.Ed.2d 287 (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, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), quoting National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1209, 93 L.Ed. 1556 (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, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), or even by married couples, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); the freedom from corporal punishment in schools, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); the freedom from an arbitrary transfer from a prison to a psychiatric institution, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); and even the right to raise one's natural but illegitimate childre , Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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 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 of the Due Process Clause is to confirm the importance of interests already protected by a majority of the States. Transforming the protection afforded by the Due Process Clause into a redundancy mocks those who, with care and purpose, wrote the Fourteenth Amendment.

In construing the Fourteenth Amendment to offer shelter only to those interests specifically protected by historical practice, moreover, the plurality ignores the kind of society in which our Constitution exists. We are not an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else's unfamiliar or even repellent practice because the same tolerant impulse protects our own idiosyncracies. Even if we can agree, therefore, that "family" and "parenthood" are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do. In a community such as ours, "liberty" must include the freedom not to conform. The plurality today squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty.

The document that the plurality construes today is unfamiliar to me. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past. This Constitution does not recognize that times change, does not see that sometimes a practice or rule outlives its foundations. I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.

The plurality's reworking of our interpretive approach is all the more troubling because it is unnecessary. This is not a case in which we face a "new" kind of interest, one that requires us to consider for the first time whether the Constitution protects it. On the contrary, we confront an interest-that of a parent and child in their relationship with each 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, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (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, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); and Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (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 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, 103 S.Ct., at 2993, quoting Caban v. Mohammed, supra, 441 U.S., at 392, 389, n. 7, 99 S.Ct., at 1768, 1766, 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 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; 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 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. Virgi ia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), to Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), and from Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), to Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (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, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982). By stressing the need to preserve the "unitary 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 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]

Because the plurality decides that Michael and Victoria have no liberty interest in their relationship with each other, it need consider neither the effect of § 621 on their relationship nor the State's interest in bringing about that effect. It is obvious, however, that the effect of § 621 is to terminate the relationship between Michael and Victoria before affording any hearing whatsoever on the issue whether Michael is Victoria's father. This refusal to hold a hearing is properly analyzed under our procedural due process cases, which instruct us to consider the State's interest in curtailing the procedures accompanying the termination of a constitutionally protected interest. California's interest, minute in comparison with a father's interest in his relationship with his child, cannot justify its refusal to hear Michael out on his claim that he is Victoria's father.

We must first understand the nature of the challenged statute: it is a law that stubbornly insists that Gerald is Victoria's father, in the face of evidence showing a 98 percent probability that her father is Michael. ^[6] What Michael wants is a chance to show that he is Victoria's father. By depriving him of this opportunity, California prevents Michael from taking advantage of the best-interest standard embodied in § 4601 of California's Civil Code, which directs that parents be given visitation rights unless "the visitation would be detrimental to the best interests of the child." Cal.Civ.Code Ann. § 4601 (West Supp.1989). ^[7]

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, 103 S.Ct. 31, 74 L.Ed.2d 45 (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.

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 Delawar § 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]

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, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Weinberger v. Salfi, 422 U.S. 749, 770-772, 95 S.Ct. 2457, 2469-2470, 45 L.Ed.2d 522 (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.) 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, 91 S.Ct. 1586, 29 L.Ed.2d 90 (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 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, 95 S.Ct., at 2470. 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]

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, 70 S.Ct. 652, 656, 94 L.Ed. 865 (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, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (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 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 preempts 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 thu does not measure up to Michael's and Victoria's interest in maintaining their relationship with each other. ^[11]

Make no mistake: to say that the State must provide Michael with a hearing to prove his paternity is not to express any opinion of the ultimate state of affairs between Michael and Victoria and Carole and Gerald. In order to change the current situation among these people, Michael first must convince a court that he is Victoria's father, and even if he is able to do this, he will be denied visitation rights if that would be in Victoria's best interests. See Cal.Civ.Code Ann. § 4601 (West Supp.1989). It is elementary that a determination that a State must afford procedures before it terminates a given right is not a prediction about the end result of those procedures. ^[12]

The atmosphere surrounding today's decision is one of make-believe. Beginning with the suggestion that the situation 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.

Notes