William J. Brennan, Jr.

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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. ”