MICHAEL H VS GERALD D. : CASE SUMMRAY

The Supreme Court in Michael H. v. Gerald D., 491 U.S. 110 (1989) considered whether a biological father has a constitutionally protected liberty interest in establishing his paternity and maintaining a parental relationship with his child when the child was conceived and born while the mother was married to another man. The Court, by a 5–4 judgment, upheld the application of California’s statutory presumption that a child born to a married woman living with her husband is presumed to be a child of the marriage. The decision produced several separate opinions and became an important authority in the Supreme Court’s jurisprudence concerning substantive due process and the constitutional protection of family relationships.

FACTS OF THE CASE

Carole D., an international model, and Gerald D., an executive of a French oil company, were married in Las Vegas, Nevada, in 1976. The couple established their matrimonial home in Playa del Rey, California. Although their relationship involved periods of separation, Gerald continued to hold himself out as the father of Carole’s child and the family relationship was ultimately maintained.

During the marriage, Carole became involved in an adulterous relationship with Michael H., a neighbour. In September 1980, Carole conceived a child, Victoria D., who was born on May 11, 1981. Gerald was identified as the father on the child’s birth certificate. Carole informed Michael that he might be Victoria’s biological father. Blood testing subsequently indicated a 98.07 percent probability that Michael was Victoria’s biological father.

During Victoria’s early years, her relationship with the adults involved was complicated. At different times, Carole and Victoria stayed with Michael, with another man, and with Gerald. Ultimately, Carole and Gerald reconciled, and by June 1984 Carole, Gerald and Victoria were living together as a family. Gerald continued to claim Victoria as his daughter and assumed parental responsibilities toward her.

In November 1982, Michael instituted a filiation action in the California Superior Court seeking a judicial determination that he was Victoria’s biological father. He also sought visitation rights. Victoria, represented by a court-appointed guardian ad litem, asserted an independent claim that she should be permitted to maintain filial relationships with both Michael and Gerald.

California Evidence Code § 621 provided that a child born to a married woman living with her husband, when the husband was neither impotent nor sterile, was presumed to be a child of the marriage. The statutory presumption could be challenged only in circumstances and within the period prescribed by California law. The California courts rejected Michael’s challenge and ultimately granted Gerald judgment in his favour. The California Court of Appeal affirmed.

Michael then appealed to the Supreme Court of the United States, arguing that California’s statutory scheme violated the Due Process Clause of the Fourteenth Amendment by preventing him from establishing his biological paternity and obtaining parental rights.

ISSUE BEFORE THE SUPREME COURT

The principal constitutional question was whether California’s presumption of marital parentage violated the substantive or procedural due process rights of a biological father who sought to establish his paternity of a child born to a married woman living with her husband.

A related question concerned Victoria’s claim that she possessed a constitutionally protected liberty interest in maintaining relationships with both her biological father, Michael, and her presumed marital father, Gerald.

OPINION OF THE COURT

Justice Antonin Scalia announced the judgment of the Court. His opinion was joined by Chief Justice Rehnquist and, except for a particular footnote, by Justices O’Connor and Kennedy. Justice Stevens concurred in the judgment separately. Justices Brennan, Marshall and Blackmun dissented, while Justice White filed a separate dissent joined by Justice Brennan. Thus, the judgment was supported by five Justices, but there was no single majority opinion commanding a majority on every aspect of the constitutional reasoning.

Justice Scalia began by examining the nature of California’s statutory rule. The Court rejected the characterization of § 621 as merely an evidentiary presumption that prevented Michael from proving a biological fact. According to the plurality, the statute embodied a substantive policy choice by the State concerning legal parenthood and the stability and integrity of the marital family.

The law reflected the traditional legal principle that a child born during an existing marriage is presumed to be the child of the husband. Historically, the common law placed great importance upon the presumption of legitimacy, which could traditionally be rebutted only in limited circumstances, such as proof that the husband was incapable of procreation or lacked access to his wife during the relevant period.

The Court therefore regarded the dispute as involving something more than a scientific determination of biological paternity. Michael could establish biological facts through blood testing, but the constitutional question was whether the State was required to transform that biological fact into a legally recognized parental relationship.

Biological Paternity and Legal Parenthood

A central feature of Justice Scalia’s reasoning was the distinction between biological parentage and legally recognized parenthood.

Michael argued that once his biological relationship with Victoria was established, he possessed a constitutionally protected liberty interest in developing and maintaining a parental relationship with her. The plurality, however, rejected the proposition that biological connection automatically created a constitutional right to legal recognition as a parent in circumstances where the child was born into an existing marital family.

The Court observed that Michael was not merely seeking a declaration of biological fact. He sought to be recognized as Victoria’s legal father and thereby to obtain parental prerogatives. Such recognition could potentially affect custody, visitation, education, medical decisions, care and upbringing of the child.

The dispute therefore concerned the allocation of parental rights, rather than simply the determination of who had biologically fathered the child. The State was entitled, in the plurality’s view, to determine whether a biological father in these circumstances would receive legal parental status.

Substantive Due Process and History and Tradition

The plurality’s reasoning was particularly significant for the development of substantive due process.

Justice Scalia emphasized that the Due Process Clause does not protect every asserted liberty interest. Constitutional protection is accorded to fundamental liberties that are deeply rooted in the Nation’s history and traditions.

The plurality therefore asked whether the specific relationship asserted by Michael—a relationship between a biological father and a child conceived adulterously while the mother was married to and living with another man—had historically received legal protection as a fundamental family relationship.

The answer was no. The plurality considered the relevant tradition to be the legal tradition protecting the marital family unit, rather than a general tradition protecting biological parent-child relationships in every circumstance. The Court concluded that the traditions of American law did not establish a constitutional right in a biological father in Michael’s circumstances to displace the husband who was legally recognized as the child’s father.

Justice Scalia thus treated the level of generality at which a claimed fundamental right is defined as critically important. The question was not simply whether parenthood was historically protected. Rather, the question was whether the particular form of parenthood asserted by Michael had historically been recognized as constitutionally protected.

Protection of the Marital Family

The plurality also emphasized the State’s interest in protecting the integrity of the existing marital family.

By the time the case reached the Supreme Court, Carole and Gerald had reconciled and were maintaining a stable family relationship with Victoria. Gerald regarded Victoria as his daughter and the family unit was functioning as a cohesive household.

The Court reasoned that recognizing Michael’s constitutional claim could interfere with the legal and familial relationship between Gerald, Carole and Victoria. The Constitution, according to the plurality, did not require California to choose Michael’s asserted liberty interest over the interests of the existing marital family.

Justice Scalia rejected Justice Brennan’s suggestion that the Constitution should protect Michael’s “freedom not to conform.” In the plurality’s view, recognizing Michael’s asserted right would necessarily affect Gerald’s corresponding interest in maintaining the marital family. The Court therefore concluded that this was an area in which the State was entitled to make the policy choice rather than having the Constitution dictate the result.

Victoria’s Claim to Maintain Relationships with Both Men

Victoria asserted a separate constitutional claim. She argued that she had a liberty interest in maintaining relationships with both Michael, her biological father, and Gerald, her legal or marital father.

The plurality found this claim even weaker than Michael’s claim. It reasoned that there was no established tradition of recognizing a constitutional right of a child to maintain multiple legal fatherhood relationships where one man was the biological father and another was the husband of the child’s mother.

The Court further rejected the suggestion that Victoria had suffered unconstitutional discrimination because California’s law treated her as the legitimate child of the marriage. The plurality emphasized that illegitimacy was a legal classification rather than an inherent personal characteristic. Victoria was treated as a child of the marital family and therefore enjoyed the legal status accorded to other children born into such families.

The Court consequently concluded that California was not constitutionally required to recognize Michael as an additional legal father merely because biological testing established his biological relationship with Victoria.

Holding of the Court

The Supreme Court affirmed the judgment of the California Court of Appeal. The Court therefore left intact California’s statutory scheme under which the marital presumption prevented Michael from obtaining the legal status of Victoria’s father in the circumstances presented.

The decision did not hold that biological fathers can never possess constitutionally protected interests in their children. Rather, the constitutional protection of the relationship depends upon the nature of the relationship and the historical and legal circumstances in which it arises. The decision therefore must be understood within the broader jurisprudence concerning natural parents, family relationships and substantive due process.

DISSENTING OPINION OF JUSTICE BRENNAN

Justice William J. Brennan, joined by Justices Marshall and Blackmun, delivered a strong dissent. He disagreed fundamentally with the plurality’s reliance upon historical tradition to determine the scope of constitutional liberty.

Justice Brennan argued that constitutional liberty cannot be confined mechanically to those practices that were historically recognized as protected. Constitutional interpretation must also take account of changes in social conditions and contemporary understandings of liberty.

According to Brennan, the historical reasons underlying the traditional presumption of legitimacy had substantially weakened. In earlier periods, biological paternity could not be established with scientific certainty, and the legal presumption of legitimacy served important social and evidentiary functions. Modern blood-testing techniques, however, could establish biological paternity with a very high degree of accuracy. At the same time, the social and legal consequences traditionally associated with illegitimacy had diminished considerably.

Justice Brennan therefore questioned why historical rules developed under radically different social and technological circumstances should determine the constitutional rights of contemporary families. He emphasized that American society was not a single, homogeneous community governed by one conception of family life. Rather, it was a pluralistic society in which individuals followed different conceptions of family, parenthood and personal relationships.

“THE FREEDOM NOT TO CONFORM”

One of the most significant themes in Justice Brennan’s dissent was the idea that liberty may include the freedom not to conform to traditional social arrangements.

The plurality had relied upon the historical protection of the marital family to reject Michael’s claim. Brennan, however, argued that the Constitution should not automatically privilege conventional family structures merely because they have historically been dominant.

For Brennan, the relevant question was whether the relationship between a biological parent and his child was itself an aspect of constitutionally protected liberty. He would therefore have examined the actual relationship that Michael had developed with Victoria rather than defining the asserted right narrowly as a right of an adulterous biological father to obtain legal recognition.

The dissent thus approached substantive due process from a more evolutionary perspective. Instead of asking only whether a particular relationship had historically received legal protection, Brennan asked whether parent-child relationships themselves are sufficiently central to individual liberty that they should receive constitutional protection.

PROCEDURAL DUE PROCESS CONCERN

Justice Brennan also objected to California’s use of a conclusive or effectively irrebuttable presumption in circumstances in which modern scientific evidence could establish biological paternity.

In his view, where a person claims an established parental relationship and possesses substantial evidence of biological parentage, the State should not simply terminate or disregard that relationship through a categorical rule without providing an opportunity to establish the underlying facts.

The dissent therefore viewed the case not merely as a conflict between tradition and modern science, but as a question of whether the State could terminate a potentially constitutionally protected family relationship without an individualized determination.

Brennan emphasized that the Constitution’s protection of liberty should not depend upon an individual’s willingness to conform to historically dominant family arrangements.

SIGNIFICANCE OF THE JUDGMENT

Michael H. v. Gerald D. is an important decision in the Supreme Court’s substantive-due-process jurisprudence because it demonstrates the tension between two different methods of identifying fundamental rights.

The plurality adopted a tradition-based approach, requiring the claimed liberty to be defined with considerable specificity and then asking whether that specific liberty was deeply rooted in American history and tradition. Under that approach, the biological father in Michael’s particular circumstances could not establish a constitutionally protected parental right.

Justice Brennan’s dissent adopted a more evolutionary approach. It emphasized that constitutional liberty should not be frozen according to historical family arrangements and that contemporary understandings of parenthood and family relationships must be considered.

The case therefore illustrates a fundamental debate in substantive due process: Should constitutional liberty be determined principally by historical tradition, or should constitutional principles evolve as society’s understanding of liberty, family and individual autonomy changes?

The case is also significant because it demonstrates that biological parenthood and constitutional parenthood are not necessarily identical concepts. Biological connection may be highly important, but the Constitution does not automatically require the State to recognize every biological relationship as a legally enforceable parent-child relationship.

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