This Day in Supreme Court History—June 15, 1989

On this day in 1989, the Supreme Court handed down Michael H. v. Gerald D., a landmark case on parental rights that highlighted fissures among the justices on the nature of constitutional rights not specifically enumerated in the text of the Constitution.

The Court upheld a California law that presumed a child born to a married woman living with her husband to be a child of that marriage. The law was challenged by the child’s biological father.

The facts of the case could have been pulled from the script of a soap opera. The married couple in the case was international model, Carole Dearing, and French oil company executive, Gerald Dearing. Carole had an affair with a neighbor, Michael Hirschensohn, which resulted in the arrival of baby Victoria. Gerald was listed as Victoria’s father on her birth certificate, and he always presented her as his daughter. But Carole told Michael that he might be Victoria’s father, which a subsequent blood test confirmed. For some period of time Michael lived with Carole and Victoria. He presented Victoria as his daughter, and she called him “Daddy.”

When this living arrangement broke up, and Carole and Victoria returned to Gerald, Michael sought to be declared Victoria’s father so he could obtain visitation rights. California courts denied Michael’s efforts, and he appealed his case to the U.S. Supreme Court, claiming that California’s denial of his ability to establish a relationship with his biological daughter violated his Fourteenth Amendment due process rights.

Justice Scalia, wrote the opinion of the Court. (He was joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy; Justice Stevens wrote a separate concurring opinion.), rejected Michael’s challenge to California’s refusal to allow him to establish paternity. He argued that although California’s policy did prevent a biological father from establishing a relationship with his child, it did so in order to protect the interests of the marital relationship: “to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa.” California did not violated any due process rights by privileging a married couple’s relationship over the rights of “an adulterous natural father.” He looked to history and found no tradition of recognition of the rights of fathers who had affairs with married women. Precedent rests “upon the historic respect—indeed sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.”

In dissent, Justice Brennan (joined by Justices Marshall and Blackmun) argued that the original reasons for the presumption of paternity are outdated 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 Michael lived with and supported Victoria, the only difference between the child’s relationship with Michael and her relationship with Gerald is “the fact of marriage”—and, as the Court had previously held, marriage should not be conclusive in these situations cases. The state’s interest in preserving family units was “minute in comparison with a father’s interest in his relationship with his child.”

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