Michael H. v. Gerald D: Background and Questions

1. In Michael H. v. Gerald D (1989), what methodology does Justice Scalia follow with reference to fundamental rights under the Due Process Clause? What does he find to be the source of fundamental rights that are less explicit in the text? Does his method limit the class of fundamental rights? What is the position of the Court on this point? Does protection of minority rights in Michael H. ultimately depend on the values of the majority? Is there a sense in which that is always so?
2. Why do Justices O’Connor and Kennedy refuse to join Justice Scalia in footnote 3? [The notes have been renumbered. The original number is 6.]
3. What, according to Justice Scalia, is the function of fundamental rights of the sort he explicates in footnote 3?
4. Why and how does Justice Scalia propose to limit the judicial recognition of fundamental rights that are less explicitly textual? Does he have valid concerns? Is his resolution correct?
5. Does his methodology logically apply to other constitutional clauses as well, for example to the Equal Protection Clause of the 14th Amendment? Under that clause the Court struck down state imposed segregation. Was that decision correct? Why?

Michael H. v. Gerald D.

491 U.S. 110 (1989)

[Plurality: Scalia, Rehnquist (C.J.). Concurring: Stevens. Concurring (in part): O’Connor and Kennedy. Dissenting: Brennan, White, Marshall, and Blackmun.]

Justice Scalia announced the judgment of the Court and delivered an opinion, in which the Chief Justice joins, and in all but footnote [3] of which O’Connor and Kennedy join.

[Gerald was married to Carole. During the marriage, Carole had an affair with Michael and conceived a child, Victoria. At various times during the marriage, Carole left Gerald and she and Victoria lived with Michael. As a result, Victoria developed psychological bonds with both Michael and Gerald. At the time of this litigation, Carole had decided to resume the marriage, and she and Victoria were living with Gerald. Michael and Victoria wanted to continue to visit one another, a desire opposed by Carole and Gerald. The issue in the case was whether Michael was entitled to a judicial hearing to decide if it were in Victoria’s best interest to continue visitation. Michael’s right to this hearing depended on whether he had a liberty interest in visitation with his child.]

Under California law, a child born to a married woman living with her husband is presumed to be a child of the marriage. The presumption of legitimacy may be rebutted only by the husband or wife, and then only in limited circumstances. 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 father. . . .

III. [I]t is necessary to clarify what [Michael H.] 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. . . .

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 (1925); Meyer v. Nebraska (1923). Without that core textual meaning as a limitation, defining the scope of the Due Process Clause “has at times been a treacherous field for this Court,” giving “reason for concern lest the only limits to . . . judicial intervention become the predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland (1977). . . .

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.[1] 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 (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 (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. . . . As Justice Powell stated for the plurality in Moore v. East Cleveland: “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[2]. . . .

What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them. Even if the law in all States had always been that the entire world could challenge the marital presumption and obtain a declaration as to who was the natural father, that would not advance Michael’s claim. Thus, it is ultimately irrelevant, even for purposes of determining current social attitudes towards the alleged substantive right Michael asserts, that the present law in a number of States appears to allow the natural father — including the natural father who has not established a relationship with the child — the theoretical power to rebut the marital presumption. . . . What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child. We are not aware of a single case, old or new, that has done so. This is not the stuff of which fundamental rights qualifying as liberty interests are made.[3] . . .

We do not accept Justice Brennan’s criticism that this result “squashes” the liberty that consists of “the freedom not to conform.” It seems to us that reflects the erroneous view that there is only one side to this controversy — that one disposition can expand a “liberty” of sorts without contracting an equivalent”liberty” on the other side. Such a happy choice is rarely available. Here, to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa. If Michael has a “freedom not to conform” (whatever that means), Gerald must equivalently have a “freedom to conform.” One of them will pay a price for asserting that “freedom” — Michael by being unable to act as father of the child he has adulterously begotten, or Gerald by being unable to preserve the integrity of the traditional family unit he and Victoria have established. Our disposition does not choose between these two “freedoms,” but leaves that to the people of California. Justice Brennan’s approach chooses one of them as the constitutional imperative, on no apparent basis except that the unconventional is to be preferred.

1. . . . The judgment of the California Court of Appeal is Affirmed.

Justice O’Connor, with whom Justice Kennedy joins, concurring in part.

I concur in all but footnote [3] of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the 14th Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut (1965); Eisenstadt v. Baird (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. . . . See Loving v. Virginia (1967); Turner v. Safley (1987); cf. United States v. Stanley (1987) (O’Connor, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman (1961) (Harlan, J., dissenting).

Justice Stevens, concurring in the judgment. [Omitted]

Justice Brennan, with whom Justice Marshall and Justice Blackmun join, dissenting. . . .

1. Once we recognized that the “liberty” protected by the Due Process Clause of the 14th 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 (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. . . .

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 (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 (1972).

It is not that tradition has been irrelevant to our prior decisions. Throughout our decisionmaking 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 (1972), or even by married couples, Griswold v. Connecticut (1965); the freedom from corporal punishment in schools, Ingraham v. Wright (1977); the freedom from an arbitrary transfer from a prison to a psychiatric institution, Vitek v. Jones (1980); and even the right to raise one’s natural but illegitimate children, Stanley v. Illinois (1972), were not “interest[s] traditionally protected by our society,” 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. . . . [B]y describing the decisive question as whether Michael’s and Victoria’s interest is one that has been “traditionally protected by our society,” 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,” 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 14th Amendment. . . .

1. The plurality’s reworking of our interpretive approach is all the more troubling because it is unnecessary. . . .

The better approach . . . 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, n. [3], but whether the relationship under consideration is sufficiently substantial to qualify as a liberty interest under our prior cases. . . .

Justice White, with whom Justice Brennan joins, dissenting. [Omitted.]

^[1]. We do not understand what Justice Brennan has in mind by an interest “that society traditionally has thought important . . . without protecting it.” . . . The protection need not take the form of an explicit constitutional provision or statutory guarantee, but it must at least exclude (all that is necessary to decide the present case) a societal tradition of enacting laws denying the interest. Nor do we understand why our practice of limiting the Due Process Clause to traditionally protected interests turns the Clause “into a redundancy.” . . . Its purpose is to prevent future generations from lightly casting aside important traditional values — not to enable this Court to invent new ones.

 

^[2]. Justice Brennan insists that in determining whether a liberty interest exists we must look at Michael’s relationship with Victoria in isolation, without reference to the circumstance that Victoria’s mother was married to someone else when the child was conceived, and that that woman and her husband wish to raise the child as their own. . . . We cannot imagine what compels this strange procedure of looking at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people — rather like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body. The logic of Justice Brennan’s position leads to the conclusion that if Michael had begotten Victoria by rape, that fact would in no way affect his possession of a liberty interest in his relationship with her.

 

^[3]. Justice Brennan criticizes our methodology in using historical traditions specifically relating to the rights of an adulterous natural father, rather than inquiring more generally “whether parenthood is an interest that historically has received our attention and protection.” . . . There seems to us no basis for the contention that this methodology is “nove[l].” . . . For example, in Bowers v. Hardwick (1986), we noted that at the time the 14th Amendment was ratified all but 5 of the 37 States had criminal sodomy laws, that all 50 of the States had such laws prior to 1961, and that 24 States and the District of Columbia continued to have them; and we concluded from that record, regarding that very specific aspect of sexual conduct, that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” . . . In Roe v. Wade (1973), we spent about a fifth of our opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion. . . .

We do not understand why, having rejected our focus upon the societal tradition regarding the natural father’s rights vis-a-vis a child whose mother is married to another man, Justice Brennan would choose to focus instead upon “parenthood.” Why should the relevant category not be even more general — perhaps “family relationships”; or “personal relationships”; or even “emotional attachments in general”? Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. If, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, we would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general. But there is such a more specific tradition, and it unqualifiedly denies protection to such a parent.

One would think that Justice Brennan would appreciate the value of consulting the most specific tradition available, since he acknowledges that “[e]ven if we can agree . . . 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.” . . . Because such general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society’s views. The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference — or at least to announce, as Justice Brennan declines to do, some other criterion for selecting among the innumerable relevant traditions that could be consulted — is well enough exemplified by the fact that in the present case Justice Brennan’s opinion and Justice O’Connor’s opinion . . . which disapproves this footnote, both appeal to tradition, but on the basis of the tradition they select reach opposite results. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

Finally, we may note that this analysis is not inconsistent with the result in cases such as Griswold v. Connecticut, or Eisenstadt v. Baird (1972). None of those cases acknowledged a longstanding and still extant societal tradition withholding the very right pronounced to be the subject of a liberty interest and then rejected it. Justice Brennan must do so here. In this case, the existence of such a tradition, continuing to the present day, refutes any possible contention that the alleged right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts (1934), or “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937).