John Paul Stevens

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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." ”

“ 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. [13]
The atmosphere surrounding today's decision is one of make-believe. ”

“ 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. ”

“ 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, 103 S.Ct., at 2997. Whether or not the majority in Lehr was in error, on the facts of the instant case, even Lehr § more demanding standard is clearly satisfied.↑ As the plurality concedes, Carole signed a stipulation in April 1984 acknowledging that Michael was Victoria's father. ”

“ 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 whethe a man is the biological father of a child whose family situation places the putative father within § 621 is simply irrelevant to the State. ”

“ 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." #fn-s [1]
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. ”

“ 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." ”

“ 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. ”

“ Lisa R. [, 13 Cal.3d 636, 119 Cal.Rptr. 475, 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. ”