Michael H. v. Gerald D. Rewritten

Abstract

In Michael H. v. Gerald D., 491 U.S. 110 (1989), Justice Scalia, writing for a plurality, upheld California’s statutory provision that a husband is conclusively presumed to be the parent of a child born to an intact marriage. This is a feminist re-writing of that opinion, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s plurality opinion, this opinion addresses head-on the Equal Protection and Due Process violations raised both by the biological father, Michael H., and the child, Victoria D. It holds that California’s presumption violates Equal Protection by impermissibly differentiating between mothers and fathers on the basis of sex. It further concludes that Due Process requires the legal recognition of a parent-child relationship that develops between an adult and a child, even if that means there may be more than one father, or more than one mother, and thereby more than two parents. The re-written opinion de-couples sex and biology from parentage with the aim of creating a more egalitarian law that transcends gender and family relationships – be they married or unmarried, same-sex or different-sex.