491 U.S. 110 (1989)
In May 1976 Carole D. and Gerald D. married in Las Vegas and established a home in Playa del Rey, California.1
In the summer of 1978 Carole began an adulterous affair with neighbor Michael H.2 In September 1980 she conceived Victoria D., who was born on May 11, 1981.3 Gerald was listed as father on the birth certificate and has always held her out as his daughter.4 Soon after delivery Carole told Michael she believed he might be the father.5
Blood tests performed in October 1981 showed a 98.07 percent probability that Michael was Victoria's father.6 During the first three years of her life, Victoria remained always with Carole, but found herself within a variety of quasi-family units.7
In November 1982 Michael filed a filiation action in California Superior Court seeking to establish paternity and visitation rights.8 In March 1983 the court appointed a guardian ad litem for Victoria, who filed a cross-complaint asserting a right to maintain filial relationships with both men.9
In April 1984 Carole and Michael signed a stipulation acknowledging Michael as Victoria's natural father, but Carole later directed her attorneys not to file it.10 In June 1984 Carole reconciled with Gerald; they now reside together with Victoria and two later-born children in New York.11
In May 1984 Michael and Victoria sought visitation pendente lite.12 A court-appointed psychologist recommended sole custody with Carole and limited visitation for Michael; the Superior Court ordered such visitation.13 On October 19, 1984 Gerald moved for summary judgment under California Evidence Code § 621.14 On January 28, 1985 the Superior Court granted the motion, finding no triable issues of fact as to paternity, and denied continued visitation.15 The California Court of Appeal affirmed the judgment of the Superior Court and upheld the constitutionality of the statute in 1987.16 The California Supreme Court denied discretionary review.17 On February 29, 1988, the United States Supreme Court noted probable jurisdiction of the present appeal.18
Whether a natural father has a constitutionally protected liberty interest in his relationship with a child born to a woman who was married to and cohabiting with another man at the time of the child's conception and birth?19
The Due Process Clause protects only those liberty interests deeply rooted in the Nation's history and tradition.20
No. The established facts show that although Michael is the biological father of Victoria, the child was born into the marriage of Carole and Gerald, who have always held her out as their daughter and lived with her as a family unit.21 Historical tradition protected the marital family by making the presumption of legitimacy nearly conclusive and limiting standing to rebut it primarily to the husband or wife.22
Michael does not have a constitutionally protected liberty interest in his relationship with Victoria.23
Related opinions on this issue
Joined by Justice Kennedy
I join all but footnote 6 of Justice Scalia's opinion.24
I agree that the plurality opinion in Moore v. East Cleveland does not compel the conclusion that Michael has a constitutionally protected liberty interest in his relationship with the child.25
I also agree that the California statute, as applied in this case, does not deprive Michael of any liberty interest without due process of law.26
I do not join footnote 6 because I believe that the question whether Michael has a liberty interest is more difficult than the plurality suggests.27
In my view, the plurality's approach to this question is too categorical.28
I would not foreclose the possibility that a natural father may have a constitutionally protected liberty interest in his relationship with a child born to a woman who was married to another man at the time of the child's conception and birth. I would decide only the case before us.29
Whether California Evidence Code § 621 deprives a natural father of any such liberty interest without due process of law?30
A conclusive presumption does not violate procedural due process when it implements a substantive rule of law reflecting the state's policy choice to protect the marital family.31
No. Even assuming a liberty interest exists, the statute implements the state's substantive policy of preserving the integrity of the marital family by making the presumption conclusive except in narrow circumstances.32 The established facts show that Gerald and Carole reconciled and wished to raise Victoria as their own, and the statute rationally advances that interest without depriving Michael of process.33
California Evidence Code § 621 does not deprive a natural father of any liberty interest without due process of law.34
Related opinions on this issue
I agree that the California statute does not deprive Michael of a liberty interest without due process of law.35
The statute provides that the presumption may be rebutted by clear and convincing evidence in an appropriate action brought by the husband or, in limited circumstances, by the natural father.36
The statute thus gives Michael an opportunity to rebut the presumption if he acts promptly.37
I also agree that the statute does not deny Michael equal protection of the laws.38
The distinction between the husband and the natural father is rationally related to the state's interest in preserving the integrity of the marital family.39
Joined by Justices Marshall And Blackmun
The plurality's decision denies Michael a hearing on the issue of his paternity and thus deprives him of a liberty interest without due process of law.40
Michael has established a relationship with the child by living with the child, supporting the child, and holding the child out as his own.41
The California statute deprives him of that liberty interest without due process of law by denying him a hearing on the issue of his paternity.42
The plurality's approach to the question whether Michael has a liberty interest is too categorical. It is inconsistent with our cases that recognize that a natural father may have a liberty interest in his relationship with his child.43
Joined by Justice Brennan
The California statute, as applied in this case, denies Michael a hearing on the issue of his paternity and thus deprives him of a liberty interest without due process of law.44
Michael has evidence which demonstrates that he is the father of young Victoria.45
Yet he is blocked by the State from presenting that evidence to a court.46
I agree with Justice Brennan that Michael has a liberty interest in his relationship with the child.47
The California statute deprives both Michael and the child of those liberty interests without due process of law by denying them a hearing on the issue of Michael's paternity.48
Whether the statute denies the child equal protection of the laws by limiting who may rebut the presumption of legitimacy?49
Equal protection requires only that a classification be rationally related to a legitimate state interest.50
No. The limitation on who may rebut the presumption is rationally related to the state's interest in preserving the integrity of the marital family.51
Under the established facts Victoria was born into the marriage of Carole and Gerald who have raised her as their daughter in a stable family unit after reconciliation.52
The statute treats Victoria identically to all other legitimate children by allowing her to maintain her filial relationship with her legal parents. It protects the marital family from external challenges that could cause confusion or stigma to the child.
The statute does not deny the child equal protection of the laws.53
Whether the statute denies the natural father equal protection of the laws?54
Equal protection requires only that a classification be rationally related to a legitimate state interest.
No. The Court did not reach this claim because it was neither raised nor passed upon below.55
Michael's equal protection argument was not presented to the California courts. Therefore the Supreme Court declined to address it on appeal. It focused instead on the due process and the child's equal protection claims that were properly preserved for review.
The Court did not reach the natural father's equal protection claim.56