This opinion is subject to revision before final publication in the Pacific Reporter

2014 UT 51

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————

— In the Matter of the Adoption of J.S., a minor child

.

——————

— W ILLIAM E. B OLDEN , Appellant and Intervenor

,

v.

J OHN and J ANE D OE , Appellees and Petitioners

.

——————

— No. 201 20751
Filed November 4 , 201 4

——————

— Fourth District, Provo Dep‘t
The Honorable Lynn W. Davis
No. 114402317

——————

— Attorneys:
Mark W. Wiser, Scott B. Wiser, Salt Lake City, for appellant
Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees

——————

— J USTICE L EE anno unced the judgment of the court and authored
the opinion of the court with respect to Parts I, II.A.1, II.A.2.a

– b,
and II.B

, and a plurality opinion with respect to

Parts II.A.2.c and II.A.3.

C HIEF J USTICE D URRANT joined J USTICE L EE ‘s opinion in full.

J UDGE O RME concurred in the judgment and joined J USTICE L EE ‘ s opinion with respect to Parts I, II.A.1, II.A.2.a

– b, and II.B

.
A SSOCIATE C HIEF J USTICE N EHRING filed a dissenting opinion.

J USTICE P AR RISH filed a dissenting opinion.
Having recused herself, J USTICE D URHAM does not participate herein; C OURT OF A PPEALS J UDGE G REGORY K. O RME sat.

——————

—In re Adoption of J.S.

Opinion of the Court in part

2 J USTICE L EE , opinion of the Court in part :
¶1 William Bolden is the putative father of a child (J.S.) born
in 2011. The case before us on appeal is an adoption proceeding involving John and Jane Doe, the would

- be adoptive parents of J.S. Bolden tried to intervene in and object to the Does‘ adoption of J.S. He was barred from doing so because he failed to p reserve his legal rights as a father by filing a paternity affidavit within the time prescribed by Utah Code section 78B

- 6

- 121(3).

¶2 This provision of the Utah Adoption Act prescribes the requirements that an unwed father must meet in order to secure the rig ht to assert his parental rights and object to an adoption. It is aimed at protecting the best interests of children born out of
wedlock

— to ensure that such children have the benefit of a parent committed to preserving their well

- being. Unwed mothers acqui re parental rights

— and the accompanying right to object to an ado ption

— as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term. An unwed father‘s legal obligation to file the paternity affidavit is a rough counterpart to the mother‘s commitment. When a child is born out of wedlock, the mother, the father, or both may assert their parental rights and thereby foreclose an adoption. But if the mother and father choose to waive th at right

— or, in the case of a father , fails to assert the right by filing the paternity affidavit in a timely fashion

— then the child may be placed for adoption.

¶3 Utah law is roughly in line with the adoption laws of all states across the country. In every s tate unwed fathers are r equired to fulfill legal requirements not imposed on unwed mot hers

— most commonly, a filing aimed at establishing the father‘s paternity. See infra ¶ 79 n. 3 5

. In Utah and elsewhere, the failure to fulfill such requirements in the timeframe required by law amounts to a waiver of the unwed father‘s right to object to an adoption. This consequence is essential to the goal of protecting children by facilitating adop tion. Without a requirement of a tim ely paternity filing, adoptions would be inhibited by being left in
limbo.

¶4 The affidavit requirement in Utah law takes the matter of a paternity filing a minor step further

— by requiring the father not just to assert and establish paternity, but also to attest under oathCite as: 2014 UT 51

Opinion of the Court in part

3 that he is able and willing to provide for the child. U TAH C ODE § 78B

- 6

- 121(3). But this is a simple, straightforward hurdle

— one that countless unwed fathers have cleared, in a manner preserving
the ir parental rights and their prerogative of foreclosing adoption.

¶5 Bolden failed to fulfill this requirement, and in this case he challenges it as unconstitutional. We reject his constitutional challenges and therefore affirm the district court‘s denial of his motion to intervene in the Does‘ adoption of J.S.

¶6 First

, we uphold the affidavit requirement against Bo lden‘s due process challenge. Bolden does not claim that the Ado ption Act infringes his procedural due process right to notice and an opportunity t o be heard; nor could he, as his failure to file the affidavit is a result of his own procedural misstep (allegedly in accordance with the misadvice of counsel) and not some proc edural defect in the law. And Bolden fails to establish an infring ement of a f undamental right of substantive due process, as he fails to present evidence that the right he asserts (to preserve his rights as an unwed father without filing an affidavit) is a matter deeply rooted in established history and tradition.

¶7 Second, we also u phold the affidavit requirement against Bolden‘s equal protection challenge. We do so by recognizing the importance of the state‘s interests in protecting children by facil itating the adoption process, and by concluding that those interests
are substantial ly advanced by the statutory affidavit requirement. We likewise reject Justice Nehring‘s assertion that this requir ement is an indication of invidious discrimination or sex

- based st ereotyping

. See infra ¶¶ 93

– 98

, 111

. ¶8 There is doubtless room for disagreement about whether our legislature has struck the best ba lance as a matter of policy.
But we see no basis for de riding our law as a product of ― inv idious gender stereotypes.‖ Infra ¶ 88

. At some level all adoption
laws discrim i nate against unwed fa thers

— by requiring of them some legal fi l ing not required of unwed mothers. S uch requir ements are not an indication of stereotype or discrimination. They are simply an element of a legal scheme aimed at as suring that any parent who would block an adoption has manifested a co mmitment to the child‘s best inter ests. And we uphold the Utah Adoption Act as constitutional on the basis of its advancement of those important interests.In re Adoption of J.S.

Opinion of the Court in part

4 I

¶9 In the summer of 2010, Bolden was involved in a sexual relationship with S.B. T he two were not married. S.B. eventually got pregnant. Approximately two weeks before the baby was born, Bolden filed a petition in the district court seeking to adjud icate paternity and to establish custody, parent time, and child
support.

¶10 Bolden‘s unsigned

, unverified petition asser ted that he was ―a fit and proper parent

. ‖ It sought ―sole physical and legal care, custody, and control of [his] unborn child should [S.B.] d ecide not to raise the child and attempt to put the child up for adoption.‖ In the petition Bolden also asserted that ―a child su pport order should enter, effective immediately,‖ consistent with statutory guidelines, including an obligation to obtain health i nsurance for the child.

¶11 One week later, Bolden filed in Utah‘s putative fa ther r egistry a sworn and notarized notice that he had commenced p aternity proceedings regarding S.B.‘s unborn child. But h e did not file a separate affidavit asserting his willingness to assume cust ody of the child and to submit to a child support order

, or disclo sing his childcare plans, as required by Utah Code section 78B

- 6

- 121(3) ( b ) . Bolden attributes his deficiency in this regard to his a ttorney‘s failure to advise him that such an affidavit wa s required. Though Bolden offered

— both before and after th e birth of the
child

— to pay S.B.‘s pregnancy

- related medical expenses, S.B. r efused to accept anything from Bolden, believing that her insu rance would cover all costs.

¶12 The child, a boy, was born on March 26, 2011. Bolden i nitially visited the child in the hospital twice, but was thereafter r efused access and thus prevented from having any further contact. Three days after the birth, S.B. determined that she wanted to pr ocee d with an adoption and executed a consent to adoption before Judge Lyon of the Secon d District Court. 1 S.B. relinquished the

1 The p aternity and a doption a ctions originally proceeded se parately

— the former in Second District Court before Judge Lyon, the latter in Fourth District Court before Judge Davis. They were consolidated before Judge Davis upon joint stipulation and m otion of the parties.Cite as: 2014 UT 51

Opinion of the Court in part

5 child to the prospective adoptive parents (the Does), who co mmenced an adoption proceeding that same day. Though their adoption petition acknowledged that they knew the identity of
the child‘s father and that the fa ther had made some effort to e stablish parental rights, they asserted that the father‘s failure to file an affidavit along with his paternity petition was determinative of his rights

— in short, that he had none.

¶13 The Does thereafter notified Bolden of their intent to adopt J.S. without Bolden‘s consent. Bolden moved to intervene in the adoption proceeding, seeking to prevent the adoption and to assert his parental rights. Between receiving the Does ‘ Notice of Adoption Proceedings and filing his motion to int ervene, Bolden also filed the affidavit required by section 78B

- 6

- 121(3).

¶14 The adoptive parents opposed Bolden‘s motion to inte rvene, arguing that Bolden could not prevent the adoption because he had not complied with the statute by filing an affidavit bef ore S.B. relinquished the child. Bolden acquired new counsel and
cha l lenged the constitutionality of section 78B

- 6

- 121(3)‘s affidavit requirement, moving for summary dismiss al of the adoption pet ition on federal and state constitutional grounds. Bolden als o sought dismissal on the ground that he was the undisputed father of J.S., that he did not consent to the adoption, and that he had strictly and timely complied with most of the applicable statutory requirements.

¶15 The district court heard oral argument on the motions and issued a memorandum decision rejecting Bolden‘s constit utional challenges . It concluded that Bolden had no right to contest the adoption because he had not filed the affidavit required under
Utah Code section 78B

- 6

- 121(3). In rejecting B olden‘s constitutio nal claims, the district court found that the affidavit requirement
relate d directly to the state ‘s interests in requiring un wed fathers to demonstrate a full commitment to their parental responsibil ities, in minimizing the risk of disru pting adoptions, and in pr otecting the rights of unwed mothers.

¶16 Upon issuance of a final order dismissing Bolden‘s inte rvention and summary judgment motions, Bolden filed this appeal. Bolden‘s appeal challenges the district court‘s jud gment on legal

groun ds. Our review is accordingly de novo. See Manzanares v. Byington (In re Adoption of Baby B.) , 2012 UT 35, ¶ 41, 308 P.3d 382.In re Adoption of J.S.

Opinion of the Court in part

6 II

¶17 Under our Adoption Act, the consent of an unmarried b iological father is not generally required for the adoption of a child
wh o is six months of age or less at the time of placement. See

U TAH C ODE § 78B

- 6

- 121(3). Yet the statute prescribes an important exception to the general rule. An unmarried biological father‘s consent is required if, before the time the mother executes consent for adoption or relinquishes the child for adoption, the father:

(a) initiates proceedings in a district court of Utah to establish paternity under Title 78B, Chapter 15, Utah Uniform Parentage Act; (b) files with the court that is presiding over the p aternity proceeding a sworn affidavit: (i) stating that he is fully able and willing to have full custody of the child; (ii) setting forth his plans for care of the child;
and (iii) agreeing to a court order of child support and the payment of expenses incurred in conne ction with the mother ‘ s pregnancy and the child's birth; (c) consistent with Subsection (4), files notice of the commencement of paternity proce edings, described in Subsection (3)(a), with the state registrar of vital statistics within the Department of Health, in a co nfidential registry esta blished by the department for that purpose; and (d) offered to pay and paid, during th e pregnancy and after the child ‘ s birth, a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child ‘ s birth, in a ccordance with his financial ability

. . . . Id. § 78B

- 6

- 121(3).

¶18 Bolden acknowledges his failure to comply with the aff idavit requirement of subsection (b) above. Yet he seeks to excuse such failure by challenging the constitutionality of the statutory requirement, asserting that it violates his rights to due pro cess ,Cite as: 2014 UT 51

Opinion of the Court in part

7 uniform operation of law s , and equal protection

. We find no merit in any of Bolden‘s constitutional claims 2 and accordingly affirm.

A. Due Process

¶19 In addressing Bolden‘s due process arguments, we first clarify the distinction between procedural and substantive due process and identify the nature of the claim before us here. After classifying Bolden‘s due process challenge as substantive, we then establish the governing legal framework and standard of scrutiny, and finally proceed to reject Bolden‘s arguments und er the appl icable standards.

1. Substance v. Procedure

¶20 The Due Process Clause has been construed to encompass both a procedural and a substantive component. Under the pr ocedural component, the courts have long recognized a general right to notice and an op portunity to be heard. See United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 272 (2010); Long v. Ethics & Discipline Comm. of the Utah Supreme Court , 2011 UT 32, ¶ 29, 256
P.3d 206

. Thus, for rights the law deems subject to formal process (in court s or other adjudicative bodies), due process requires n otice reasonably calculated to inform parties that their rights are in

2 Bolden does not cleanly distinguish between federal and state constitutional claims. He frames his arguments in terms of state constitutional protections, yet frequently relies on caselaw interpreting federal rights. E.g.

, Lehr v. Robertson , 463 U.S. 248 (1983) (analyzing federal due process and equal protection);
Thurnwald v. A.E. , 2007 UT 38, 163 P.3d 623 (analyzing both fede ral and state due process in constitutional avoidance); Wells v.
Children’s Aid Soc ’ y of Utah , 681 P.2d 199 (Utah 1984) (analyzing both federal and state due process rights). And he makes little or no effort to identify anything in the text or history of the Utah Constitution dictating an analysis that is distinct from that called for under federal precedent. We accordingly analyze Bo lden‘s due process argument under federal standards and his uniform oper ation of law arguments under our precedent applying equal prote ction doctrines.In re Adoption of J.S.

Opinion of the Court in part

8 jeopardy 3 and a meaningful opportunity to be heard in the course of such proceedings. 4 See Wells v. Children’s Aid So c ’y of Utah , 681 P.2d 199, 204 (Utah 1984) (explaining that procedural due process requirements encompass the ―notice and opportunity to be heard‖
that ―must be observed in order to have a valid proceeding affec ting life, liberty, or property‖) (emphasis added).

¶21 The due process right to an opportunity to be heard may be lost due to a procedural misstep, however. A statute of limit ations, for example, may foreclose a cause of action before it is ever litigated on its merits. 5 A procedural bar prescribed by statute has
a similar effect. 6

¶22 Such limitations may be challenged on either procedural or substantive due process grounds. A procedural due process attack

on a statute of limitations or procedural bar would take the form
of an assertion that such a limitation foreclo ses any meaningful opportunity for the plaintiff to protect its rights. 7 A substantive

3 See Mullane v. Cent

. Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950); Jackson Const r . Co. v. Marrs

, 2004 UT 89, ¶ 10, 100 P.3d

1211.

4 See Turner v. Rogers , 131 S. Ct. 2507, 2517 (2011); Chen v. St ewart , 2004 UT 82, ¶ 68, 100 P.3d 1177.

5 See Davis v. Provo City Corp ., 2008 UT 59, ¶ 27, 193 P.3d 86 (right to bring an action may be foreclosed by statutes of limit ations, which ―cut off the right to bring an action after a particular period of time‖).

6 See U TAH C ODE § 63G

- 7

- 401(2) ( containing the Utah Gover nment Immunity Act provision that any claimant with a right of action must, as a prerequisite to fili ng suit, file written notice of the claim with the government entity before maintaining the a ction).

7 See Logan v. Zimmerman Brush Co.

, 455 U.S. 422, 437 (1982) ( explaining due process requires ―an opportunity

. . . granted at a meaningful time and in a m eaningful manner

. . . for [a] hearing a ppropriate to the nature of the case‖ (alteration in original ) ( internal quotation marks omitted)); Terry v. Anderson , 95 U.S. 628, 632

– 33 (1877) (upholding a nine

- month and seventeen

- day statute of lim itations on th e ground that ―[t]his court has often decided that st atutes of limitation affecting existing rights are not unconstitutio n-Cite as: 2014 UT 51

Opinion of the Court in part

9 challenge would take a different form. It would involve a broa dside attack on the fairness of the procedural bar or limitation, on the ground that the right foreclosed i s so fundamental or impo rtant that it is protected from extinguishment. 8

¶23 Bolden‘s claim is of the latter variety. He nowhere claims that the Adoption Act forecloses his meaningful access to the ju stice system. 9 Nor could he. The affidavit requirement is simple

al, if a reasonable time is given for the commencement of an a ction before the bar takes effect‖); Burford v. State , 845 S.W.2d 204,

2 07, 208 (Tenn. 1992) (holding that a three

- year limitation on pr esenting post

- conviction claims ―provides a reasonable opportun ity‖ for doing so, but striking the requirement as applied to a d efendant whose post

- conviction claim did not accrue until after the limitation had passed, as he was ―deprive[d] .

. . of such a reaso nable opportunity‖).

8 See Montagino v. Canale , 792 F.2d 554, 557

– 58 (5th Cir. 1986) (discussing framework for substantive due process challenge to statute of limitations); Crier v. Whitecloud , 496 So. 2d 305, 308

– 09 (La. 1986) (upholding a medical malpractice statute of limitations against a due process challenge on rational basis review); Vale ntine v. Thomas , 433 So. 2d 289, 293 (La. Ct. App. 1983) (establishing
framework for substa ntive due process challenges under state constitution to statute of limitations) ; State v. Egdorf , 77 P.3d 517,

521

– 22 (Mont. 2003) (―Substantive due process bars arbitrary g overnmental actions regardless of the procedures used to impl ement them

. . . . ‖).

9 Applicable standards of procedural due process do not yield
free

- wheeling authority for the courts to second

- guess the wisdom or fairness of legislative policy judgments. As the dissent ind icates, the courts have long held that ―an unwed father who d emo nstrates a full commitment to the responsibilities of paren thood by  ̳com[ing] forward to participate in the rearing of his child,‘ acquires  ̳ substantial protection ‘ under the due process
clause.‖ Infra ¶ 123 (Nehring, A.C. J., dissenting) (quoting Lehr v.

R obertson , 463 U.S. 248, 261 (1983)). But that interest is a substa ntive interest in an inchoate fundamental right. And that inchoate right is perfected only when the father follows reasonable state laws regulating the manner in which he is to demonstrate h is ―full commitment to the responsibilities of parenthood.‖ Infra ¶ 123In re Adoption of J.S.

Opinion of the Court in part

10 and straightforward. And Bolden failed to fulfill it not because it was difficult but because his counsel allegedly gave him bad legal
advice. See infra ¶ 63

. ¶24 Thus, Bolden‘s argument is f ramed as a substantive cha llenge to the fairness of the affidavit requirement. 10 Throughout his opening and reply briefs, Bolden repeatedly characterizes his claim as one challenging the statutory affidavit requirement as ―substantively unconstitutional‖ and as aimed at establishing a

(Nehring, A.C.J., dissenting) (internal quotation marks omitted)

. A failure to do so, moreover, means that the inchoate right is lost.

Nothing in the cases Justice Nehring cites yields a judicial pr erogative to second

- guess the wisdom of state law standards for a father‘s perfection of his inchoate rights under the guise of proc edural due process. The courts are in no position to second

- guess the proper length of a particular statute of limitations under a procedural due process balancing test. And we are likewise in no position to second

- guess the wisdom of the legislature‘s policy decisions regarding statutory prerequisites to establish an unwed father‘s parental rights.

The In re Baby Girl T. case cited by the dissent, infra ¶ 124 , is not to the contrary. There we did not extend the Mathews balan cing test to a matter that the legislature placed outside the bounds of adjudicative process. Instead, in a matter directed precisely
within t hose bounds (of an unwed father seeking to assert his st atutory right to participate in judicial proceedings), we engaged in standard analysis of the procedural due process question of the core right of notice and an opportunity to be heard. See R.C.S. v. A.O.L. ( In re Baby Girl T. ) , 2012 UT 78, ¶¶ 16

– 32 , 298 P.3d 1251

. Thus, Baby Girl T. is not a case establishing the propriety of proc edural due process analysis of a substantive limit on access to an adjudicative proceeding. It is a core application of pro cedural due process analysis within such a proceeding, and as such it has no application here.

10 See Black v. Sec’y of Health & Human Servs. , 93 F.3d 781, 789 (Fed. Cir. 1996) (rejecting a procedural due process challenge and declining to apply procedural analysis where ―what the petitio ners [really] object to is not the denial of a hearing, but the substa ntive rule of eligibility that has been applied to them‖).Cite as: 2014 UT 51

Opinion of the Court in part

11 ―fun damental,‖ ―substantive right‖ of an unwed father as a pa rent.

¶25 Justice Nehring‘s dissent portrays Bolden‘s case differen tly. It insists that Bolden ‘s arguments encompass both procedural and substantive due process

, while conceding that Bolden briefed only the latter

. Infra ¶ ¶ 114

, 116 . And it contends that Bolden a sserts that the affidavit requirement may deprive him of the proc edural right ―to be heard  ̳at a meaningful time and in a meaningful
manner.‘‖ Infra ¶ 117 (Nehring, A.C. J. , dissenting ) (quoting M athews v. Eldridge , 424 U.S. 319, 33 3 (1976)). But t he argument put forward by the dissent appears nowhere in Bolden‘s briefs. Bo lden nowhere complains of the sufficiency of the notice he was given under Utah law or of the adequacy of the opportunity he

wa s provided to ― ̳submit evidence‘‖ or to otherwise prepare or present his case in court. See infra ¶ 121 (quoting Christiansen v.

Harris , 163 P.2d 314, 317 (Utah 1945)). Thus, neither Mathews v. E ldridge nor Christiansen v. Harris is anywhere cited by Bolde n on appeal. Nor are any of the other cases cited by Justice Nehring in support of his concerns regarding the ―procedural protections‖ inherent in the right to procedural due process. Infra ¶ 121

. 11

11 Tellingly, even Justice Nehring‘s analysis is ultimately f ocused on matters of substance, no t procedure. Instead of questio ning the extent of the notice to Bolden or of the opportunity to present his case, the dissent ultimately asserts

— in a section of the opinion captioned ―Procedural Due Process‖

— that the statutory affidavit requirement is ―so onerous and arbitrary that [it] v iolate[s] .

. . due process.‖ Infra ¶ 126 . The basis for that conclusion, moreover, bears no relation to the standards of procedural due process outlined in the cases cited earlier in the dissenting op inion. Compare infra ¶ ¶ 119

– 20 (citing Mathews v. Eldridge for a b alancing test dictating the appropriate level of adjudicative proc edure based on a weighing of the ―private interest‖ affected and the costs and value of additional procedures), with Montagino , 792
F.2d at 557

– 58 (noting that on substantive due process challenge
to statute of limitations the standard was one of ―whether the st atute is arbitrary‖). Instead of weighing the costs and benefits of additional adjudicative procedures, the dissent simply asserts that
the statutory affidavit requirement is ―so onerous and arbitrary‖ that it crosses a ―line‖ envisioned by the dissent as establishing
the bounds of ―fundamental fairness.‖ Infra ¶ 126 . That conclusionIn re Adoption of J.S.

Opinion of the Court in part

12 ¶26 Bolden‘s only allusion to procedural due process in his
br iefs is in a defensive response to arguments put forward by the adoptive parents. In his opening brief, Bolden reiterated his claim to a substantive right to a fair ― opportunity to develop a relatio nship with his newborn and thereby convert his provisional rights into vested parental rights,‖ while asserting that ―this opportunity interest could easily be rendered illusory if the state was free to impose  ̳ any process ‘ it wanted on a father‘s ability to perfect his provisional interest.‖ The adoptive parent s seized on this form ulation in their responsive brief on appeal. To the extent Bolden
claimed a violation of an opportunity to be heard, the adoptive parents quoted our cases for the proposition that ―the test for whether a provision of the Adoption Act‘s putative father prov isions passes due process muster is whether  ̳[t]he Act [] give[s] him a meaningful and adequate procedure to protect this inte rest.‘‖ R.C.S. v. A.O.L. ( In re Adoption of Baby Girl T. ) , 2012 UT 78, ¶ 20, 289 P.3d 1251. And under that s tandard, the adoptive pa rents asserted that Bolden‘s claim failed as a matter of law because the affidavit requirement was ―meaningful and adequate‖ and because Bolden admittedly failed to comply with it.

¶27 Bolden responded in his reply brief by repudiatin g any reliance on procedural due process. While acknowledging the adoptive parents‘ argument ―that an unwed father‘s due process rights are merely procedural‖ and are satisfied by ―whatever  ̳process‘ the legislature offers him,‖ Bolden emphasized the sub st antive nature of his due process claim. Specifically, Bolden co nfirmed that his due process challenge was to the ― substantive co nstitutionality of the affidavit requirement at issue,‖ while emph asizing that that claim subsisted regardless of whether the s tatut ory limitations in question were ―applied in a procedurally fair
manner.‖

¶28 Thus, in its content and its terminology, Bolden‘s claim sounds only in substantive due process. 12 We accordingly proceed to establish the standard of scrutiny that applies to this claim.

is indistinguishable from that set forth in the substantive due process section of the dissenting opinion

— a point that reinforces the inherently substantive nature of the issue on appeal.

12 In any event, a procedural due process claim would fall flat in this case even under the cases cited by Justice Nehring‘s di s-Cite as: 2014 UT 51

Opinion of the Court in part

13 2. Standard of Scrutiny

¶29 The right to due process is principally about process

— procedure, not substance. M ost of this court‘s caselaw in the field
is thus about the nature and extent of the notice required by the constitution, and of the opportunity to be heard once such notice is
afforded. See Wells v. Children’s Aid Soc ’ y of Utah , 681 P.2d 199, 204

s ent. ―[T]he State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or ev identiary rule.‖ Logan , 455 U.S. at 437 (first emphasis added); see also Hammond Packing Co. v. Arkansas , 212 U.S. 322, 350

– 5 1 (1909) (default judgment as discovery sanction for failure to produce evidence not a violation of due process). Bolden failed to do just that. He failed to present evidence (an affidavit) essential to his claim, and he is accordingly in no position to co mplain that his own failure amounted to a violation of procedural due process.
The dissent‘s other cases are unavailing. This is not a case of a claimant who is foreclosed from protecting his interests by an in ability to comply with a procedural requireme nt in the first place. See Logan , 455 U.S. at 424

– 26, 435

– 36 ( holding that a state labor commission failed to convene a procedurally required hearing, thus depriving litigant of future hearing); People v. Germany , 674 P.2d 345, 351

– 52 (Colo. 1983) ( involvi ng a three

- year time bar on all post

- conviction collateral attack, the effect of which was to ―immediately cut off this right for all persons whose convictions antedate the statute by an interval of time in excess of the statut ory limitation period‖); Burf ord , 845 S.W.2d at 208 (three

- year lim itation on presenting post

- conviction claims ―provides a reason able opportunity‖ for doing so, but striking the requirement as a pplied to a defendant whose post

- conviction claim did not accrue
until after the limitatio n had passed, as he was ―deprive[d] .

. . of such a reasonable opportunity‖); see also Lehr , 463 U.S. at 264 (―[I]f qualification for notice [of an adoption] were beyond the control of an interested putative father , it might be thought procedurally i nadequ ate.‖ (emphasis added)); In re Baby Girl T. , 2012 UT 78, ¶ 31, (holding filing requirement violated due process as

- applied to putative father where he deposited notice of paternity with state agency, but through agency‘s negligence notice was not filed unt il after the mother had consented to an adoption).In re Adoption of J.S.

Opinion of the Court in part

14 (Utah 1984) (noting that ―[m]ost due process cases concern proc edural requirements, notably notice and opportunity to be heard‖).

The same is true at the federal level. For the most part, the due process precedent in the U nited States Supreme Court likewise is aimed at clarifying the kind of notice and opportunity to be heard that is guaranteed by the constitution. 13

¶30 On a few occasions, the courts have recognized new sub stantive rights under the umbrella of due process. See, e.g., Roe v.
Wade , 410 U.S. 113 (1973); Griswold v. Connecticut , 381 U.S. 479 (1965). But the Due Process Clause is not a license for the judicial fabrication of rights t hat judges might prefer, on reflection, to
have been enshrined in the constitution. Our role in interpreting the constitution is one of interpretation, not common

- law

- making. Thus, the judicial recognition of new fundamental rights of sub stantive due proce ss is the exception, not the rule. See Regents of

Univ

. of Mich

. v. Ewing , 474 U.S. 214, 225 (1985) (―Although the Court regularly proceeds on the assumption that the D ue P rocess C lause has more than a procedural dimension, we must always
bear in mind that the substantive content of the Clause is su ggested neither by its language nor by preconstitutional history

. . . . ‖ (internal quotation marks omitted) ).

¶31 That said, the principle of substantive due process is i ngrained in both federal and state precedent. So although we pr oceed cautiously in this domain

, we cannot repudiate the substa ntive due process inquiry altogether. We should instead prescribe carefully the grounds and the basis for the recognition of any a l-

13 See, e.g., Swarthout v. Cooke , 131 S. Ct. 859 (2011) ( holding that prisoners up for parole received adequate process when given opportunity to be heard and provided reasons for denial of p arole); Wilkins on v. Austin , 545 U.S. 209, 225

– 26 (2005) ( holding that informal, nonadversary procedures were adequate to safeguard liberty interest inmates had in not being assigned to supermax f acility); Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985) ( holding that due process protections require a hearing prior to discharge of employee who has constitutionally protected prope rty interest in employment); Bell v. Burson , 402 U.S. 535, 542 (1971) ( holding that except in emergency situations, due process re quires notice and opportunity for hearing appropriate to the nature of the case before revocation of a driver‘s license).Cite as: 2014 UT 51

Opinion of the Court in part

15 leged right of substantive due process. To do so

, we start with some general background in federal precedent, proceed to more specific precedent as applied to parental rights of unwed fathers, and conclude by articulating the standard of scrutiny applicable
here.

a. The lesson of Lochner

¶32 Substantiv e due process reached its apex in the so

- called
Lochner era. During this period , in decisions like Lochner v. New
York , 198 U.S. 45 (1905), the U nited States Supreme Court ro utin ely struck down legislation infringing on economic rights (such as
the freedom of contract) that it deemed inherent in the guarantee
of the Due Process Clause. In Lochner itse lf, for example, the court
held u n constitutional a labor law restricting the number of hours
that bakers were allowed to work in a day in New York ( ten), co ncl uding that the law was an ― unreasonable, unnecessary

, and arb itrary interference with the right of the individual ‖ to contract. Id

. at 56 ; s ee also Adkins v. Children’s Hosp

. , 261 U.S. 525 (1923) (stri king down federal minimum wage legislation as violative of sub stantive due process).

¶33 Such expansive use of the Due Process Clause was hardly
uncontroversial. Lochner

- type invocations of substantive due process sparked now

- famous dissents from the likes of Justice s Holmes and Harlan , who decried the ―ever incre asing scope‖ of the substantive due process rights recognized by their colleagues,
and not ed the tendency of the doctrine to ―give us carte blanche to embody our economic and moral beliefs in its prohibitions.‖
Baldwin v. Missouri , 281 U.S. 586, 595 (1930) (Holmes, J.

, dissen ting) ; see also Lochner

, 198 U.S. at 7 5 (Holmes, J., dissenting) (― Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a C onstitution is not intended
to embod y a particular economic theory

. . . . ‖); id . at 68 (Harlan, J., dissenting) (― If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthor ized by law, t hen the court cannot interfere.‖).

¶34 The dissenting view eventually carried the day. In cases marking the beginning of the so

- called Progressive Era, the court began to disavow Lochner

- style decisionmaking. See West Coast
Hotel Co. v. Parrish

, 300 U.S. 379 (1937) (overruling Adkins , andIn re Adoption of J.S.

Opinion of the Court in part

16 upholding min i mum wage legislation ). And b y the mid

- 1950s, the court categorically

— and unanimously

— conclude d that ―[t] he day is gone when this Court uses the Due Process Clause of the Fou rteenth Amendment to stri ke down state laws, regulatory of bus iness and industrial conditions, because they may be unwise, i mprovident, or out of harmony with a particular school of thought. ‖ Williamson v. Lee Optical of Okla

. , 348 U.S. 483 , 488 (1955). Thus, with regard to substantive due process challenges to economic regulations, ―[t]he almost universal‖ standard embraced by the courts today is ―a rational basis test so tolerant that the substa ntive content of economic statutes rarely violates due pro cess.‖
Wells , 681 P.2d at 205. 14

14 Justice Nehring‘s dissent spurns the above discussion of the
Lochner era as a ―lengthy exposition‖ that has ―no place‖ in our analys is. Infra ¶ 133 . That critique is puzzling. Lochner is the key bugaboo of substantive due process jurisprudence in the twe ntieth century. The courts‘ experiment with Lochner

- style decisio nmaking has had an enormous impact on our current approach to
this fi eld of law. That is evident in the fact that Lochner is still often
raised

— as it is here

— in both state and federal precedent as a ca utionary reminder of the perils of over

- exuberant invocations of the judicial power to recognize new fundamental rights. See Wells , 681 P.2d at 205 (citing scholarly literature and cases addressed to the ―almost universal opinion that substantive due process was abused in invalidating economic regulations in the first third of this century‖ under Lochner and its progeny, while suggesting that the judicial reaction to this era ―has culminated in a rational basis

test so tolerant that the substantive content of economic statutes rarely violates due process‖); United Haulers Ass’n, Inc. v. Oneida

Herkimer Solid Waste Mgmt. Auth. , 5 50 U.S. 330, 347 (2007) (descri bing Lochner as ―a time when [the] Court presumed to make

. . . binding judgments for society under the guise of interpreting the

D ue P rocess C lause,‖ and cautioning that it is ―[ground] we should not seek to reclaim‖); McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 3062 (2010) (Stevens, J., dissenting) (stating
that the ―now

- repudiated Lochner line of cases attests to the da ngers of judicial overconfidence in using substantive due process to
advance a broad theory of the right or the good‖); Powell v. State
ex rel. Or

. Dep’t of Land Conservation & Dev. , 243 P.3d 798, 802 (Or. Ct. App. 2010) (beginning a substantive due process analysis byCite as: 2014 UT 51

Opinion of the Court in part

17 ¶35 That approach has not been broadly extended beyond the
realm of economic rights

. With respect to noneconomic rights, the court has continued to uphold certain substantive rights under the
Due Process Clause. As noted above, f or example, the court has struck down, as violative of due process, restrictions on access to contraception, s ee Griswold , 381 U.S. 479 , and to abortion, see Roe

, 410 U.S. 113.

¶36 But the anti

- Lochner backlash of the Progressive Era has also had an impact in the realm of noneconomic rights. See Wells

, 681 P.2d at 205 (noting, in expressing reluctance to extend new rights of substantive due process, ―[t]he almost universal opinion that substantive due p rocess was abused in invalidating economic regulations in the first third of [the twentieth] century‖). In recent decades, both this court and our federal counterparts have e xpressed a diminishing appetite for the judicial recognition of new
substantive du e process rights in the social realm

. ¶37 In Washington v. Glucksberg , 521 U.S. 702 (1997), for exa mple, the U nited States Supreme Court declined to recognize a substantive due process right t o assisted suicide. In so doing, the court noted the uneasy status of the concept of substantive due

process, expressing concern for the slipperiness of the judicial slope. I d . at 723 n.23 (noting the potential for judicial abuse

, while asserting that once recognized, there is ―no principled basis ‖ for
confin ing the right ).

b. Substantive due process and parental rights

¶38 We expressed a parallel concern in In re J.P. , 648 P.2d 1364 (Utah 1982 ). In J.P.

, we built on federal precedent in reco gnizing a fundamental right for a mother not to lose her rights to her child absent proof of unfitness, abandonment, or neglect. Id . at

putting caselaw in ―historical perspective‖ and repudiating the
―much

- m aligned  ̳ Lochner era‘ of Supreme Court jurisprudence‖). We raise it with that in mind and place our understanding of the law of substantive due process in the historical context of the

court ‘ s experiment with Lochner

- style decisionmaking. This is no
mere ― academic pursuit.‖ Infra ¶ 133 . It is an attempt to explain our current law in light of its historical background and to add a continuing voice of caution regarding the enticing, yet difficult

- to

restrain concept of substantive due process.In re Adoption of J.S.

Opinion of the Court in part

18 1367. In so doing however, we first acknowledged our discomfort with the judicial recognition of new ―rights unknown at c ommon law‖ and ―not mentioned in the Constitution,‖ particularly as to ―substantive due process innovations undisciplined by any but
abstract formulae.‖ Id . at 1375 (citing Moore v. City of East Clev eland , 431 U.S. 494, 503, n.12 (1977) )

. 15

¶39 In recognizing the fundamental interest of a mother in r etaining her parental rights absent proof of unfitness, abando nment, or neglect, our J.P. opinion first established a narrow, limi ting principle . As a predicate to establishing such a right, we first
found that such right was ― ̳deeply rooted in this Nation‘s history and tradition,‘ and in the  ̳history and culture of Western civiliz ation.‘‖ Id

. (citations omitted). In support of that conclusion, we cited extensive historical evidence of the ―deeply rooted‖ nature

of t his right. See id . at 1374 (―The integrity of the family and the parents‘ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo

- American culture, presupposed by all our social, political, and legal inst it utions.‖). Because the statute at issue in J.P. infringed on the fu ndamental right recognized by this court, we found it unconstit utional. We held, specifically, that ―a mother is entitled to a sho wing of unfitness, abandonment, or substantial neglect be fore her parental rights are terminated,‖ and that the statute that made ―no provision for that showing‖ was ―unconstitutional on its face.‖ Id

. at 1377.

¶40 In reaching this conclusion, our decision in J.P. built upon the United States Supreme Court‘s decisio n in Stanley v. Illinois

, 405 U.S. 645 (1972). In J.P.

, we cited Stanley as establishing the u nconstitutionality of an Illinois statute ―presuming unwed fathers to be unfit [as] a violation of the due process clause.‖ 648 P.2d at 1374 (citing Stanley , 405 U.S. at 651). In the context of an unwed father who had lived with his children at least ―intermittently for 18 years,‖ we noted that Stanley had upheld the fundamental right
of ― ̳a man in the children he has sired and raised,‘‖ a right that

15 The Moore opi nion, in turn, emphasized the crucial impo rtance of a limitation ―grounded in history‖ and tradition, noting that such limitation is much ―more meaningful than any based on the [mere] abstract formula‖ of judicial intuition or preference.

Moore , 431 U.S. a t 503 n.12.Cite as: 2014 UT 51

Opinion of the Court in part

19 was deemed to ― ̳warrant[] deference and, absent a powerful countervailing interest, protection.‘‖ Id . (quoting Stanley , 405 U.S. at 651).

¶41 Our J.P. opinion was discussed and extended in our su bsequent decision in Wells. In Wells

, we considered the constituti onality of a statute predicating an unwed father‘s establishment of his parental rights on the statutory condition of the filing of an a cknowledgement of paternity prior to the child‘s placement for adoption. 681 P.2d at 202

– 03 (considering the constitution ality of

U TAH C ODE § 78

- 30

- 4 ( 1953 ) ) . Building on United States Supreme Court precedents culminating in Lehr v. Robertson , 463 U.S. 248 (1983), our opinion in Wells concluded that the standard of scrut iny under the federal Due Process Clause was a deferent ial sta ndard of arbitrariness. Citing In re J.P. and Lehr , we acknowledged the provisional right of an unwed father to parent his children while also recognizing the state‘s interest in ―immediate and s ecure adoptions for eligible newborns‖ providing ―just ification for significant variations in the parental rights of unwed fathers.‖ 681
P.2d at 203. And we noted that Lehr had upheld a New York pr ovision requiring notice of an adoption proceeding to an unwed father ―only if he had filed a notice of intent to claim paternity with the putative father registry‖ on the ground that ― ̳a more

open

- ended notice requirement would

. . . complicate the ado ption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impa ir the desired finality of adoption decrees.‘‖ Id . (quoting Lehr, 463 U.S. at 249 ).

Because Lehr upheld the New York provision on the ground that it was not ―arbitrary,‖ we applied an arbitrariness standard in Wells in upholding the then

- applicable require ment of Utah law of fi ling an acknowledgement of paternity as a prerequisite to an u nwed father preserving his provisional rights as a parent. Id . (hol ding that the acknowledgement of paternity requirement was ―not  ̳arbitrary‘‖ and was ―therefore constitut ional under the Due Process Clause of the United States Constitution‖).

¶42 Our Wells decision adopted a different standard under the Utah Constitution, however. Although we upheld the a cknowledgment of paternity requirement under the state constit ution as we ll, we did so only after first adopting a standard of heightened scrutiny. Id . at 206. That standard, we concluded, fo llowed from the J.P. opinion ‘ s recognition of ―parental rights asIn re Adoption of J.S.

Opinion of the Court in part

20  ̳fundamental,‘‖ and from a prior decision in which we had i nvoked height ened scrutiny in address ing a void

- for

- vagueness challenge to a statute impinging on ―fundamental rights‖ (such as the right to travel). Id . (citing In re Boyer , 636 P.2d 1085, 1087

– 88 (Utah 1981)). Thus, under the Utah Constitution‘s Due Process Clause, w e concluded in Wells that ―the proponent of legislation infringing parental rights must show (1) a compelling state inte rest in the result to be achieved and (2) that the means adopted are  ̳narrowly tailored to achieve the basic statutory purpose.‘‖ Id

. (q uoting Boyer , 636 P.2d at 1090). 16

¶43 The standard invoked in Wells , however, is in some te nsion with the standards employed in subsequent cases. Despite
Wells , for example, our more recent cases have held that an unwed father‘s ―inchoate‖ right in his child may be lost if he fails to fo llow reasonable state procedures for perfecting that right. And our recent cases have done so in a manner foreclosing the sort of heightened scrutiny prescribed in Wells

. ¶44 In T.M. v. B.B. (

In re Adoption of T.B. ) , 2010 UT 42, 2 32 P.3d 1026, for example, we emphasized that the guarantee of due process recognize s only ―an inchoate interest‖ of an unwed bi ological father. Id . ¶ 31 n.19. And we concluded that that interest rises to the level of a fundamental right ―only when [the fa ther]  ̳demonstrates full commitment to the responsibilities of paren thood by [coming] forward to participate in the rearing of his
child.‘‖ Id

. ( second alteration in original). Because the father in

T.B. had failed to satisfy the statutory prerequisites to perfecting his inchoate parental rights, we held that the ―natural mother‘s relinquishment of [his] child‖ for adoption ―eliminate[d] his o p-

16 See also Thurnwald v. A.E. , 2007 UT 38, ¶¶ 28, 33, 44, 47, 163 P.3d 623 (reiterating this standard in identifying a potential const itutional problem with applying the Adoption Act‘s requirement of a paternity petition within twenty

- four hour s of the birth of a child in a manner that would ―make it impossible for unwed f athers of children born on weekends or holidays to preserve their rights postbirth,‖ but interpreting the statutory filing deadline to be subject to extension under Utah R ule o f Civ il P rocedure 6 and interpreting the statute to provide a ―minimum period of twenty

four hours after the child‘s birth to file a paternity claim ‖ in a manner avoiding the constitutional question).Cite as: 2014 UT 51

Opinion of the Court in part

21 portunity to acquire constitutionally protectable parental rights.‖
Id . ¶ 40. And we accordingly rejected the biolo gical father‘s arg ument that there was ―no compelling need for the premature te rmination of [his]

. . . parental rights based solely on procedural noncompli ance, ‖ concluding that the fact that he ―could have complied with the statutory scheme established b y the Utah Le gislature for acquiring the right to withhold consent to an ado ption‖ foreclosed his alleged fundamental right. Id . ¶¶ 28, 41.

¶45 We reiterated a similar standard in In re Adoption of Baby
Girl T

. , 2012 UT 78. In that case

, we explained that ―[u] nder both federal and state law, an unwed biological father has an inchoate interest in a parental relationship with his child that acquires full constitutional protection only when he demonstrates a full co mmitment to the responsibilities of parenthood by [coming] fo rward to participate in the rearing of his child.‖ Id . ¶ 18 (alteration in original) (internal quotation marks omitted). And we acco rdingly held that an ―unmarried biological father‖ must only ―be given an adequate opportunity to comply with th e[] statutory r equirements of the Adoption Act in order to assert‖ a fundamental interest in his parental rights. Id . ¶ 19 (alteration in original) (i nternal quotation marks omitted) . In addition, we again emph asized that an unwed father‘s right is simply ―in the opportunity to develop a substantial relationship‖ with his child, and thus co ncluded that if the governing statute provides a ―meaningful chance‖ for the father to protect his interests, ―he may not co mplain of the termination of his interest when he fails to strictly comply with its procedures.‖ Id . ¶ 20.

c. The standard of scrutiny applicable here

¶46 The foregoing sets the stage for our statement of the a pplicable standard of scrutiny. It also emphasizes the difficulty of so doing, given the evident tension in our caselaw. Our cases have consistently applied a deferential standard of federal due process scrutiny of statutory prerequisites to the establishment of parental rights of unwed fathers. See Wells

, 681 P.2d at 206 ( provision of adoption statu te was not ―arbitrary‖ and thus did not violate fe deral due process protections) ; In re Adoption of T.B.

, 2010 UT 42, ¶ 31 ( adoption statute preserved ―meaningful chance‖ for put ative father to preserve opportunity to develop relation ship with
his child an d thus satisfied due process ). O ur statement of the a pplicable state constitutional stand ard has been in consistent , ho w-In re Adoption of J.S.

Opinion of the Court in part

22 ever

. Wells calls for heightened scrutiny on the ground that a f ather‘s parental rights are ―fundamental.‖ 681 P.2d at 205 (―fu ndamental rights of parenthood‖ require a ―higher level of scrut iny‖ under Utah‘s D ue P rocess C lause). But our subsequent cases apply a much more deferential standard

— one in line with the
federal standard of scrutiny

. See In re Baby Girl T

. , 2012 UT 78, ¶ ¶ 11 , 19 ( d ue process requires that putative father ―have a me aningful chance‖ to preserve opportunity of relationship with child).

¶47 The standard in T.B. and Baby Girl T

. runs directly cou nter to th at set forth in Wells . Instead of applying a heightened
stand ard of scrutiny, our T.B. opinion expressly rejected the bi ological father‘s argument that showing a ―compelling‖ interest

was necessary

. See In re Adoption of T.B. , 2010 UT 42, ¶ 29. And it applied instead a standard turning only on a showing of a ―re ason able opportunity [of a biological father] to preserve his chance to develop a relationship with his child.‖ Id . ¶ 42. Baby Girl T

. is to
the same effect. See In re Baby Girl T., 2012 UT 78, ¶¶ 11, 19.

¶48 This tension in our caselaw is nowhere reflected on th e face of our opinions. Perhaps the parties in our more recent cases were unaware of the heightened standard applied in Wells ; at a

min i mum they appear not to have called it to our attention. But the tension as to the state standard of scrutiny is front and center in this case. It is reflected clearly in the briefing. Bolden expressly
invokes the Wells standard of heightened scrutiny. And the ado pt ive parents cite T.B. and Baby Girl T

. in support of the deferential ―reasonable opportunity‖ or ―meaningful chance‖ standard

. ¶49 We are therefore faced with the question of how to r esolve this tension

— a question not directly confronted in any of our pri or c ases. And we resolve it in favor of the deferential sta ndard of scrutiny set forth in our more recent cases. We do so, first,
because T.B. and Baby Girl T

. are our most recent pronouncements
on this issue. Because these cases appear to have overtaken Wells on this point, they should control. Litigants in Utah are entitled to rely on our expli cation of the law as definitive. 17 And although

T.B. and Baby Girl T

. do not expressly overrule Wells on the state

17 See Carter v. Lehi City , 2012 UT 2, ¶ 15, 269 P.3d 14 1 (emph asizing that ―[l]itigants ought to be able to rely‖ on our opinions).Cite as: 2014 UT 51

Opinion of the Court in part

23 standard of scrutiny, the two lines of cases are unquestionably i ncompatible. That, without more, would suggest to a litigant that our most recent pronouncement is the law, and has overtaken any prior contrary statement. See Malan v. Lewis , 6 93 P.2d 661, 676 (Utah 1984) (noting ― [ t ] he general rule from time immemorial‖ that an opinion from this court ―is deemed to state the true nature of the law both retrospectively and prospectively‖).

¶50 Second, and in any event, the Wells standard of scruti ny was unnecessary to the outcome in that case, and may thus be
viewed as over

- enthusiastic dicta. 18 Because the Wells decision upheld the then

- applicable acknowledgement of paternity filing against a state constitutional due process challenge, the court

co uld easily have reached the same conclusion under a more def erential standard. That renders the heightened standard of scrutiny

in Wells unnecessary to the result

. W e accordingly read T.B. and Baby Girl T

. as controlling. 19

18 We use the term dicta in the sense of ―[a] court‘s stating of a legal principle more broadly than is necessary to decide the case,‖

B LACK ‘ S L AW D ICTIONARY 519 (so defining gra tis dictum ), or ―[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel and even passed on by the court, but that is not essential to the decision,‖ id . (so defining judicial dictum ). So the disagreement with the di ssent on this point is not a matter of one of us speaking truth and the other falsity, see infra ¶ 140 (Nehring, A.C. J., dissenting) (disagreeing with the court‘s unde rstanding of obiter dictum ); it is simply a matter of nuanced vari ations in terminology. Thus, we acknowledge that the standard set
forth in the Wells opinion was not a matter of ― ̳illustration, arg ument, analogy, or suggestion‘‖ that was not part of the court‘s holding. Infra ¶ 140 . But it was dicta in the sense of being unnece ssary to the co urt‘s decision.

19 The same thing holds for our decision in Thurnwald v. A.E.

, 2007 UT 38, 163 P.3d 623, cited by the dissent as another instance in which we employed the strict scrutiny standard to reform a ―provision of the Adoption Act.‖ Infra ¶ 136 n.1 66 (Nehring,

A.C. J., dissenting). The Thurnwald opinion does include some la nguage invoking the strict scrutiny standard from Wells

. Thurnwald

, 2007 UT ¶¶ 28, 35. But the ultimate holding of Thurnwald is one of
constitutional avoidance

— of statutory interpr etation of the Ado p-In re Adoption of J.S.

Opinion of the Court in part

24 ¶51 Third, the Wells opinion offers s haky support for its heightened standard of scrutiny, while our analysis in T.B. and Baby Girl T

. is in line with our current understanding of the law of substantive due process. The linchpin of the analysis in Wells is the assertion that parental rights are fundamental. From that pr emise the Wells court concluded that the standard was a heig htened one. Thus, the Wells court reasoned ―[b]y analogy‖ to a case implicating the fundamental right to travel ( In re Boyer , 63 6 P.2d at

1087

– 88) that a statutory regulation of the right of an unwed f ather was an infringement of a ―fundamental right.‖ Wells , 681 P.2d

at 206. But that conclusion was circular, or at least a bit too facile. Under the universal understanding in place at the time of Wells (and still today), an unwed father‘s right was not necessarily fu ndamental; it was only provisionally so, subject to being perfected by fulfillment of a state‘s statutory requirements for its establis hment. See Lehr

, 463 U.S. at 261

– 62 (the ―mere existence of a biolo gical link does not merit equivalent constitutional protection,‖ a putative father must ―grasp [the] opportunity and accept some measure of responsibility‖) ; In re Adoption of T.B.

, 2010 UT 42, ¶ 26 & n.22 (putative father‘s parental rights are provisional rights he ―may acquire‖ by ―satisfying certain statutory requirements‖);

Wells

, 681 P.2d at 206 (unwed father‘s right to a relationship with his newborn is ―a provisional right‖ subject to statutory perfe ction)

. Thus, under long

- settled law, the right of the unwed father

in Wells was not properly described as ―fundamental‖ at the thr eshold point of identifying the applicable standard of scrutiny. Deeming it so was question

- begging. So to be true to the settled understanding of the nature of the right of an unwed father, Wells should have carefully considered whether the unwed father in

tion Act in light of Utah R ule of Civ il P rocedure 6 in a manner avoiding a potential problem of unconstitutionality. See id

. ¶¶ 46

- 47 (emphasizing our approach of choosing one interpret ation of a statute over another, and specifically of selecting an i nterpretation that avoided the result of striking down the Adoption Act as unconstitutional). So our invocation of strict scrutiny in
Thurnwald is even more clearly an instance of dicta, and in any event a dictum again at odds with our other recent opinions.Cite as: 2014 UT 51

Opinion of the Court in part

25 that case had established his fundamental right as a parent instead of simply assuming that he had.

¶52 That careful analysis, moreover, should ha ve followed the approach modeled in J.P. , as informed by the United States Supreme Court decisions culminating in Lehr . And that approach is not simply to assume at the highest level of generality that an u nwed father‘s interests are fundamental. It is to ask instead the

more specific question whether the precise interest at stake is fu ndamental in the sense of being justified not by the mere ―abstract formula[]‖ informed by a judge‘s instincts of fairness, but by a
clear indication that that interest is ―d eeply rooted in this Nation‘s history and tradition and in the history and culture of Western
civilization.‖ In re J.P. , 648 P.2d at 1374

– 75 (internal quotation marks omitted); s ee also Glucksberg

, 521 U.S. at 728 (statute proh ibiting assisted suicide constitutional because assisted suicide is not a fundamental right deep ly rooted in American tradition ).

¶53 Absent such evidence, the right at stake is not fundame ntal, and the applicable standard of scrutiny is a highly deferential inquiry into rationality o r arbitrariness. That is the evident basis for the standards we adopted in T.B. and Baby Girl T . In the a bsence of any proof of a showing of ―deeply rooted‖ history and

tradition sustaining the unwed father‘s interests, we simply co nsidered only the ration ality or arbitrariness of statutory terms for an unwed father‘s establishment of his parental rights. And we deemed that deferential standard met where the statutory fram ework provided a reasonable or meaningful opportunity for a f ather to establish his ri ghts. See In re Baby Girl T. , 2012 UT 78, ¶ 11 (due process requires only that unwed father have ―meaningful chance‖); In re Adoption of T.B.

, 2010 UT 42, ¶ 31 (due process s atisfied where ―meaningful chance‖ or ―reasonable opportunity‖ exists).

¶54 The requi red showing of ―deeply rooted‖ history and

tradition was made in J.P.

, but not in Wells

. J.P. concerned the question of a mother‘s right to maintain her parental rights absent proof of unfitness, abandonment, or neglect. 648 P.2d at 1375. And on that point the evidence of a deeply embedded history and tr adition was powerful. Thus, as a predicate to recognizing a fund amental right in J.P. , the court relied on widespread historical ev idence of a longstanding tradition of respecting a parent‘s custod i-In re Adoption of J.S.

Opinion of the Court in part

26 al rights except upon proof of unfitness, abandonment, or neglect.
Id . at 1374.

¶55 No such historical record was presented in Wells . The
Wells court cited no established tradition of recognizing an unwed father‘s inherent right to his child without regard to any co mpliance with statutory prerequisites such as a paternity filing. I nstead

, the court simply asserted, at the highest level of generality, that parental rights and familial bonds are significant, and thus that those rights are ―fundamental‖ and accordingly s ubject to ―a more stringent standard.‖ Wells , 681 P.2d at 202, 206. In so co ncluding, moreover, the Wells court also acknowledged that the rights of an unwed father are merely ―provisional,‖ and therefore subject to forfeiture absent fulfillment of the pre conditions to their
eventual fulfillment. Id . at 205

– 08 (citing Lehr, 463 U.S. at 249 ). And absent evidence of a specific tradition of respecting the rights of unwed fathers without fulfilling statutory prerequisites, the
Wells opinion essentially assumed away the problem by simply presuming that the right in question was fundamental. 20

20 The dissent commits a similar error. It broadly asserts that ―a father‘s right to control his children has a strong basis in Amer ican and English history,‖ citing caselaw and other authority in support of the general respect our societ y has ceded to parental rights. Infra ¶ 134 (Nehring, A.C. J., dissenting). But that is insuff icient. A general tradition of respect for parental rights comes n owhere close to establishing a fundamental right for unwed fathers
to unfettered control of their offspring. That proposition is th oroughly undermined by the U nited States Supreme Court‘s dec isions in Lehr and its antecedents and in our decision in J.P. , and the dissent‘s evidence of tradition and history is therefore inad equate.

Thus, Hibbette v. Ba ines , 29 So. 80 (Miss. 1900), does not esta blish a ―deeply rooted‖ historical tradition of respecting the rights
of unwed fathers. Infra ¶ 134 . Indeed, the father in Hibbette was not unwed but married to the mother of his children, and the case
established only his rights to custody upon the death of the chil dren‘s mother in a custody contest with ―collateral relatives‖ (a grandmother and aunts). 29 So. at 81

– 82. So the ―presumption‖ of a father‘s right to his children recognized in Hibbette says nothing
ab out such a right in a case of an unwed father like this one. AndCite as: 2014 UT 51

Opinion of the Court in part

27 ¶56 The heightened standard in Wells was not justified by the record and authority presented. Absent a record of a deeply e mbedded tradition of protecting the unwed father‘s righ ts regar dless of the fulfillment of any preconditions prescribed by statute, our court was in no position to declare the right in Wells a ―fu ndamental‖ one. We should instead have simply concluded, as we more recently have done in T.B. and Baby Girl T

. , th at the standard was the deferential, fallback standard of rationality or arbitrar iness.
¶57 For these reasons, we would repudiate the heightened scrutiny standard announced in Wells

. In our view, the standard requires more than a broad, general assertion that parental rights are significant and traditionally respected. To trigger such a sta ndard, a party would have to make the more specific showing pr esented in J.P

. — to establish a specific showing that the precise i nterest asserted by the parent is one that is ―deeply rooted in this Nation‘s history and tradition and in the history and culture of
Western civilization.‖ In re J.P. , 648 P.2d at 1374

– 75 (internal qu otation marks omitted)

. 21

it certainly doesn‘t undermine the long

- settled understanding of an unwed father‘s right as merely provisional

.

21 That showing, moreover, cannot be made by bare citation to
Troxel v. Granvil le , 530 U.S. 57, 65 (2000), which the dissent cites in support of the notion that the interest of parents ―in the care, cu stody, and control of their children is  ̳ perhaps the oldest of the fundamental liberty interests‘ recognized by the United States S upr eme Court.‖ Infra ¶¶ 86

, 131 (Nehring, A.C. J., dissenting). The
Troxel opinion comes nowhere close to establishing a generalized, fundamental right of an unwed father. Instead, Troxel vindicates only the established right of a mother to trump the visitatio n rights asserted by grandparents under a state statute granting such rights upon proof that it is in ―  ̳ the best interest of the child. ‘ ‖
Id . at 60 (quoting W ASH

. R EV

. C ODE § 26.10.160(3)). Troxel does so, moreover, only on the basis of established history, tradition, and precedent supporting the principle of a fundamental right of an established parent ―to make decisions concerning the care, cust ody, and control of their children.‖ Id . at 66. None of the cited hi story, tradition, or precedent sustains the right asserted by Bolden and recognized by the dissent. Instead, for unwed fathers, the r e-In re Adoption of J.S.

Opinion of the Court in part

28 3. Bolden‘s Substantive Due Process Claim

¶58 That leaves only the question of t he viability of Bolden‘s particular claim of an infringement of his rights of substantive due

process. We conclude that he has failed to make the kind of sho wing rooted in settled history and tradition, and thus that his claim is subject only to review for rationality or arbitrariness. And b ecause we find the statutory gateway to establish his parental rights to be a rational, meaningful opportunity, we reject his claim and uphold the statute‘s constitutionality.

¶59 Bolden fails to present any historical basis for rooting the right he asserts in ―this Nation‘s history and tradition‖ or in ―the history and culture of Western civilization.‖ In re J.P. , 648 P.2d at

1375 (internal quotation marks omitted) . His briefs make no effort to identify any longstanding, wid espread basis in our history and culture for recognizing a perfected right in unmarried biological
fathers arising upon their mere filing of a paternity suit (and without following other requirements set forth by law). 22 Instead,

t he right assert ed by Bolde n implicates the slippery slope pro blems associated with ―substantive due process innovations undi sciplined by any but abstract formulae.‖ Id.

¶60 Bolden insists that his interest is ―more than a mere bi ological connection to his newborn son.‖ But he offers ― [ no ] pri ncipled basis for confining the right‖ that he asserts. Glucksberg

, 521 U.S. at 733, n.23

. Endorsement of a substantive right in this case

levant history, tradition, and precedent establishes only a prov isional right, subject to reasonable regul ation by the states.

22 The dissent complains that this formulation is not Bolden‘s. Infra ¶ 129 (Nehring, A.C. J., dissenting). Fair enough. Bolden has not deigned to frame his due process claim in these clear terms. But that is just because he prefers to f rame it at too

- high a level of generality, anticipating that a more general statement of his inte rest might persuade us to embrace it. The question, however, is not the terms that Bolden has chosen to articulate his asserted right. It
is the actual nature of the right in question. And there is no que stion that to succeed, Bolden would have to do more than establish a generic interest in parenthood. He would have to establish the precise interest that he advocates for, which is that of assuring his

interests in his child without complying with the statute.Cite as: 2014 UT 51

Opinion of the Court in part

29 would inevitably lead to a series of line

- drawing problems going forward, requiring the courts to make policy judgments about whether the biological father before the court had done enough to properly justify the recognition of his parental rights.

¶61 Those policy judgments are matters for legislati ve action. Our legislature has spoken to this question, prescribing a series of prerequisites to a n unmarried biological father ‘s perfect ion of his
inchoate interest in his child. Bolden asks us to second

- guess those requirements (at least one of them). He asks us to establish a sub stantive due process right to perfect his parental rights on som ething less than the grounds prescribed by the legislature

— by fi ling a paternity action but not the affidavit called for by statute. Doing so would put us in the problematic realm of making ―due process innovations‖ dictated by ―a bstract formulae‖ and without

an y effective limiting principle.

¶62 Bolden‘s claim is thus subject only to deferential review of the rationality or non

- arbitrariness of the statutory scheme, or
in other words

, of whether the statute preserves a meaningful o ppo rtunity for him to perfect his parental rights. Under that sta ndard his claim fails, as he has made no attempt to suggest that the affidavit requirement is arbitrary or that the opportunity afforded to him by statute is not meaning ful.

¶63 Instead

, he just cla ims that he ignored the statute on the (bad) advice of counsel

. If so

, t hat is unfo rtunate. But bad legal
advice is no excuse for a failure to follow the law . For better or worse, our legal system treats attorneys as agents for their clients.
And on that b asis

, we generally deem clients responsible for the
decision s they make on advice of counsel.

¶64 There is an exception to this rule: In criminal cases, d efendants convicted upon objectively d efi c ient advice at trial ma y be entitled to a new trial as a remedy on a constitutional claim for
ineffective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 691

– 92 (1984) (to prevail on ineffective assistance of

coun sel claim defendant m ust show deficient performance by counsel that was objectively unre asonable and prejudicial). But
th e exception proves the rule. Except in these limited circum stances, a misstep on advice of counsel is still a misstep, and a client‘s recourse is simply an action for malpractice. See Jennings v.
Stoker , 652 P.2d 912, 913 (Utah 1982) (general rule in civil cases isIn re Adoption of J.S.

Opinion of the Court in part

30 that judgment of district or trial court will stand despite incomp etence or negligence of one‘s own counsel); Peterson v. Peterson

, 2006 UT App 199 U

, para. 9 (memorandum decision) (malpractice action is the ―appr opriate remedy for the client whose counsel‘s performance falls below the standard of professional competence‖ (internal quotation marks omitted) ). That reality is less than ideal, particularly in cases like this one where money damages are cold

com fort fo r the injury associated with the loss of parental rights.

But t hat is the law

— and perhaps a reminder that our system is imperfect

, and that the remedies it affords may fall short of the
ideal of restoring the losses suffered by the wronged.

¶65 Bolden ‘s due p rocess claim accordingly fails under the applicable standard of scrutiny. We therefore affirm the district
court‘s denial of this claim.

B

. Uniform Operation and Equal Protection

¶66 The Uniform Operation Clause of the Utah Constitution states that ―[a]ll laws of a general nature shall have uniform ope ration.‖ U TAH C ONST . art I, § 24. As we explained in State v. Canton

, uniform operation provisions historically were understood to be
aimed ―not at legislative classification but at practical operation .‖ 2013 UT 44, ¶ 34 & n.7 , 308 P.3d 517

. Thus, under this historical approach, the uniform operation guarantee is ―not viewed as a limit on the sorts of classifications that a legislative body could draw in the first instance, but as a rule of uniformity in t he actual application of such classifications

. ‖ Canton , 2013 UT 44, ¶ 34. Bo lden asserts no tenable infringement of this guarantee. His co mplaint is with legislative classification, not practical operation.

¶67 Bolden ‘s claim thus arises under the modern notio n of ―uniform operation ,‖ which is simply a ― state

- law counterpart to
the federal Equal Protection Clause.‖ Id . ¶ 35. Under this formul ation , we employ a three

- step test wherein we assess: (1) ―what
classifications

, ‖ if any, ―the statute creates,‖ (2) ―whe ther different
classes

. . . are treated disparately,‖ and (3) if there is disparate treatment, ―whether the legislature had any reasonable objective that warrants the disparity.‖ Id

. (alteration in original) (quoting

State v. Angilau , 2011 UT 3, ¶ 21, 245 P.3d 745 )

. ¶68 Most classifications are presumptively permissible and thus subject to rational basis review. Canton , 2013 UT 44, ¶ 36 (ci ting State v. Robinson , 2011 UT 30, ¶ 22, 254 P.3d 183 ). Other class i-Cite as: 2014 UT 51

Opinion of the Court in part

31 fications, however, ―are so generally problematic (and so unlikely to be reasonable) that they trigger heightened scrutiny.‖ Id

. Such ―suspect‖ classes include race, sex

, and classifications implicating fundamental rights. See Robinson , 2011 UT 30, ¶ 22.

¶69 N ot all ―suspect‖ classifications are t reated identically, however. For one thing, sex

- based classifications are evaluated
under a less

- searching standard than that applied to race

- based ones. Thus, race

- based classifications are evaluated under a sta ndard of strict scrutiny (requiring a compelling governmental inte rest advanced by the least restrictive means possible 23 ), while sex

based classifications are evaluated as a matter of intermediate scrutiny (requiring only an important governmental interest that is substantially advanced by the legislation). 24

¶70 Second, not all sex

- based classifications implicate the same considerations under this intermediate standard of scrutiny.
The notion of a ― substantial ‖ relation between means and ends implies a threshold con sideration of the nature and extent of the
discrimination at issue

. F or ―official action that closes a door or denies opportunity to women (or to men),‖ it is difficult for the government to show that its discriminatory policy ―substantially‖

23 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 , 551 U.S. 701, 720 (2007) (―It is well established that when the gover nment distributes burdens or benefits on the basis of individual r acial cl assifications, that action is reviewed under strict scrut iny.

. . . In order to satisfy this searching standard of review, the [government] must demonstrate that the use of individual racial
classifications .

. . is narrowly tailored to achieve a compellin g government interest.‖ (internal quotation marks omitted)).

24 See Nguyen v. I.N.S. , 533 U.S. 53, 60 (2001) (―For a gender

based classification to withstand equal protection scrutiny, it must
be established at least that the [ challenged ] classification ser ves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.‖ (alteration in original) ( internal quotation marks omitted)); State v. Hererra , 895 P.2d 359, 384 (Utah 1995 ) (discrim ination must ―substantially further a legitimate legislative interest‖ to comply with U niform O peration C lause of the Utah State Co nstitution).In re Adoption of J.S.

Opinion of the Court in part

32 advances an i mportant objective

. United States v. Virginia , 518 U.S. 515, 532 (1996) (concluding that Virginia failed to carry this bu rden in failing to identify an ―exceedingly persuasive‖ justification for its policy of excluding women from Virginia Military Inst itut e)

. On the other hand, for of ficial action that is less imposing, the operative standard will be easier to satisfy. See Nguyen v.

I.N.S. , 533 U.S. 53, 70 (2001) (explaining, in upholding federal i mmigration rule requiring unwed fathers of children born abroad to satisfy standards not imposed on unwed mothers, that the court is ―mindful‖ that the ―obligation‖ imposed on fathers ―is minimal‖). This is particularly true where the differential treatmen t of men and women is rooted in ―[i]nherent differences‖ between the se xes, and where such differences translate not into an outright bar on one of the sexes, see Virginia , 518 U.S. at 532

– 33 (internal quot ation marks omitted) , but a regime preserving mean ingful oppo rtunities to both sexes, see Lehr v. Robertson , 463 U.S. 248, 267 (1983) (holding that where a father had no established relationship with his child and had failed to file with the putative father registry, ―nothing in the Equal Protection C laus e [would] preclude[] the State from withholding from him the privilege of vetoing the adoption of that child‖ (alteration in original) (internal quotation
marks omitted ) ); Friehe v. Schaad , 545 N.W.2d 740 (Neb. 1996) (holding that it was not a violation of equal protection to require a father to file with the putative father registry within five days of his child‘s birth or lose the right to object to an adoption). 25

¶71 In any event , the intermediate standard of scrutiny does not require a precise fit between means and ends. A simple ―su bstantial‖ relation will do, and that standard does not require proof that the official action adopted by government is the ―least restri ctive means‖ of accomplishing the government‘s objectives. See

25 Our point is not to establish two distinct standards of inte rmediate scrutiny. See infra ¶ 148 (Parr ish, J., dissenting) (noting
that the United States Supreme Court ―has articulated only one definition of intermediate scrutiny applicable in sex discrimin ation cases‖); infra ¶ 87 (Nehring, A.C. J., dissenting) (claiming that we ―fail[] to actually engage in a heightened scrutiny analysis‖). It is simply to note, as the United States Supreme Court has, the relevance of the degree of government discrimination in the a pplication of the standard of intermediate scrutiny.Cite as: 2014 UT 51

Opinion of the Court in part

33 Nguyen , 533 U.S. at 70 (―Non e of our gender

- based classification equal protection cases have required that the statute under co nsideration must be capable of achieving its ultimate objective in every instance.‖)

. ¶72 We apply this standard to the affidavit requirement in

s ect ion 78B

- 6

- 121(3) . And we uphold it as constitutional. First, we acknowledge that the statute discriminates on the basis of sex

. Within the class of unmarried parents, the statute prescribes the requirement of an affidavit only for men. That is a sex

- based cla ssification triggering an intermediate scrutiny standard of scrutiny

. ¶73 That said, it is important to recognize the nature and e xtent of the classification at issue. This is not a statute that ― closes a
door or denies opportunity‖ to men outright

. Virginia , 5 18 U.S. at
532. Instead

, this provision preserves meaningful opportunities for both sexes, and the threshold basis for its differential treatment
of men and women stems initially not from an outmoded stere otype but from a straightforward matter of biology. It bears e mphasizing, moreover, that the requirement the statute imposes on men is straightforward and quite simple. See Nguyen , 533 U.S. at 70 (noting the relevance of the ―minimal‖ obligations imposed on unwed fathers under federal immigration law). And we reiterate that the standard of intermediate scrutiny does not requir e a closely tailored fit between means and ends. Only a ―substantial‖ fit is required

— a showing that the important ends of government are substantially advanced by the statute.

¶74 We upho ld the statute under this standard. The overarc hing, important governmental objective is clear ly prescribed by st atute

— the preservation of the ― best interests ‖ of children

. See

U TAH C ODE § 78B

- 6

- 102 (1). That objective is among the most i mportant of any in our society. 26

¶75 To make this objective a reality, moreover, the gover nment has long pursued ancillary goal s of great significance

— of prescribing laws and procedures aimed at establishing binding connections between children and parents , either through a

26 See Palmore v. Sidoti , 466 U.S. 429, 433 (1984) (―The State, of course, has a duty of the highest order to protect the interests of
minor children

. . . . ‖).In re Adoption of J.S.

Opinion of the Court in part

34 chi ld‘s natural parents or through adoption. 27 In either setting, the

Stat e has a twofold interest

— of promptly identifying those who might be designated as parents, and of reliably 28 ensuring that
such persons will fulfill their parental role. 29 To further those goals, moreover, the state has a subsidiary interest in giving voice
to those with a demonstrated commitment to the best interests of
the child

— to allow them to either step forward to assert their i nterest in parenting a child or, if not, to express their willingness to relinquish their rights of parenthood by consenting to an ado ption. 30

27 U TAH C ODE § 78B

- 6

- 102(5)(a) (― [T] he state has a compelling interest in providing stable and permanent homes for adoptive
children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children

. ‖).

28 Our point is emphatically not to suggest that fathers are i nherently unreliable or untrustworthy. Infra ¶ 87 (Nehring, A.C.J., dissenting) (contending that we ― embrace the stereotype that u nwed fathers are inherently less reliable ‖ who must ―take extra steps to ensure the State that their desire to parent (and ability to parent) is reliable and genuine‖ ). It is simply that the affidavit r equirement is the state‘s attempt to create a procedure that reliably does the job of indicating who has parental rights and standing to object to an adoption.

29 See Wells , 681 P.2d at 203 (stating that the state has a ―strong interest in speedily identifying those persons who will assume the parental role‖ and promptly ascertaining whether they will ―fu lfill their corresponding responsibilities‖); U TAH C ODE § 78B

- 6

- 102(5)(f) ( ―[T]he state has a compelling interest in requiring u nmarried biological fathers to demonstrate commitment by

. . . e stablishing legal paternity in accordance with the requirements of [the Adoption Act]

. ‖).

30 U TAH C ODE § 78B

- 6

- 102(5)( b) ( recognizing unmarried mot her‘s ―right to make timely and appropriate decisions regarding her future and the future of the child‖ and ―to assurance regar ding the permanence of an adoptive placement,‖ given that she is ―faced with the responsibility of making crucial decisions about the future of a newborn child‖); id . § 102( 5)(c) (recognizing that ―adoptive children have a right to permanence and stability inCite as: 2014 UT 51

Opinion of the Court in part

35 ¶76 Justice Nehring‘s dissent rejects these interests as som ehow reflective of a ―stereotype‖ that ―exclude[s] or protect[s] members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior.‖ Infra ¶ 94 (quo ting Miss. Univ. for Women v. Hogan , 458 U.S. 718, 72 5 (1982)). This analysis misses the mark on several grounds: (a) the Adoption Act excludes no one; it preserves an unwed father‘s right to object to an adoption upon fulfillment of straightforward statutory criteria ; (b) the statute employ s no presumption in favor of women, as it
does not award custody to the mother, but establish es an orderly adoption proceeding in circumstances where the sole parent re cognized by law has elected to relinquish parental rights and give up the child for adoption (to a couple, or even a single man or woman) ; and (c) the dissent confuses the threshold question of the legitimacy of the state‘s interest s with the secondary question of the degree to which the statute in question advances those inte rests. 31

adoptive placements‖); id . § 102(5)(d) (recognizing that ―adoptive parents have a constitutionally protected liberty and privacy i nterest in retaining custody of an adop ted child‖); id . § 102(5)(e) (recognizing that ―an unmarried biological father has an inchoate interest that acquires constitutional protection only when he d emonstrates a timely and full commitment to the responsibilities of parenthood, both during pregna ncy and upon the child ‘ s birth‖);
id . § 102(5)(f) (recognizing that ―the state has a compelling interest in requiring unmarried biological fathers to demonstrate co mmitment by providing appropriate medical care and financial support and by establishing leg al paternity, in accordance with the requirements of this chapter‖); see also Wells , 681 P.2d at 203 (recognizing state‘s strong subsidiary interest in ascertaining ―whether adoptive parents must be substituted‖).

31 The Adoption Act neither elevates the st atus of women as preferred parents nor diminishes the status of men in that capac ity. It simply establishes a mechanism for facilitating adoption in the circumstance in which the sole legal parent of a child (an u nwed mother) elects to opt out of her right to parent and to waive that right in favor of adoption. Because the adoptive parent(s) may be a man, woman, or a married couple, see U TAH C ODE § 78B

- 6

- 117(2)(b), the legislative decision at issue is not to favorIn re Adoption of J.S.

Opinion of the Court in part

36 ¶77 For these and other r easons, there i s no basis for Justice Nehring‘s assertion that the affidavit requirement is ―actually

based on generalizations about men‘s inherent qualities as pa rents‖

— that ―they are uninterested in their offspring and ill

- suited or incompetent caregivers

. ‖ Infra ¶¶ 94

– 95

. 32 T hose stereotypes

mothers over fathers, but simply to clarify the framework nece ssary to assure that the child‘s interests will be protected by a pa rent of some sort.

An unwed father‘s rights are fully protected under the Ado ption Act. A father who steps forward in a timely fashion and su bmits the required affidavi t acquires more than just a seat at the adoption table. He secures the right to assert his interest as a f ather, and to preclude the planned adoption

— regardless of whet her the would

- be adoptive parent is male, female, or a couple. See
id. § 78B

- 6

- 133 ( stat ing that a father in compliance with the stat utory requirements to establish paternity may withhold consent to an adoption); id. § 78B

- 6

- 117(2)(b) ( stating that subject to some conditions, ―any single adult‖ may adopt a child). Accordingly,
there is no bas is for the supposed ―implication . . . that fathers are inherently not reliable‖ or are somehow ―lesser parents.‖ Infra ¶ 87 (Nehring, A.C. J., dissenting). That implication is a product of the dissent‘s imagination. And it is thoroughly undermined by the

a bove

- explained structure of the adoption scheme in question.

32 The stereotypes put forward by Justice Nehring‘s dissent are imported wholesale from opinions of the United States Supreme Court analyzing sex discrimination far removed from that at issue
here

. See infra ¶ 93 (quoting Miss. Univ. for Women v. Hogan , 458 U.S. 718 (1982); United States v. Virginia , 518 U.S. 515 (1996)). The matter of excluding men from a public nursing school ( Hogan ) or of precluding women from participating in the ―adversative‖ cit izen

- soldier program at Virginia Military Institute ( Virginia ) may be properly understood as rooted ultimately in stereotypes

— of nursing as work unsuitable for men, Hogan , 458 U.S. at 729 (co ncluding that the school‘s policy ―tends to perpetuate the stere otyped view of nursing as an exclusively woman‘s job‖), or of a woman being ill

- suited for combat training, Virginia , 518 U.S. at 550 (noting the school‘s position that ―while some women would be suited to and interested in‖ the program, ―VMI‘s advers ative
method would not be effective for women as a group ‖ (internal q u-Cite as: 2014 UT 51

Opinion of the Court in part

37 are nowhere found in the interests set forth by statute or in the appellees‘ briefs in this case. Thus, we agree that the court is not to proceed on the basis of ―justification[s] of its own invention.‖ Infra ¶ 93 . But it is the dissent, and not the court, that commits that
mistake. The interests we analyze are those identified in our law

— of protecting the best interests of children by giving voice in their adoption to those who have established a demonstrated comm i tment to their well

- being prescribed clearly by statute. And those

interests (along with their substantial advancement by the affid avit requirement) are likewise echoed in the briefs fil e d by appe llees herein

. 33

otation marks omitted)). But no such stereotype is implicated here. Instead, the threshold governmental interests at stake are those set forth above. And these objectives implicate not a stere otype but an objective distinction between unmarried parents

— given that mothers are identified and legally designated as pa rents by virtue of their biological connection, but fathers require something more (both biologically and legally).

33 See Brief of Appellees 21

– 22 (asserting that unlike an unwed father, a mother‘s legal commitment to her child matures at birth; emphasizing that it is the mother who must ―decide whether she will parent the child or whether an adoption plan will be pu rsued‖; justif ying discrimination in affidavit requirement on the basis of these differences); id . at 25

– 26 (asserting that the affidavit requirement ―advances the state‘s strong interest in avoiding di sruptive placements and protecting the right of  ̳an unmarried
birth mother, who is faced with the responsibility of making cr ucial decisions about the future of the newborn child, .

. . to make timely and appropriate decisions regarding her future and the f uture of the child‘‖) (quoting U TAH C ODE § 78B

- 6

- 102(5)(b)); id . at 26 (emphasizing the ―courage‖ of a mother‘s decision to carry a child and ―to place her child for adoption‖ while asserting that the mother ―should not have to wonder whether the adoption may later be undone by a putative father who has not sworn under

oa th that he will  ̳assume the parental role‘ and  ̳fulfill the corre sponding responsibilities‘‖) (quoting Wells , 681 P.2d at 203); id . at 28 (asserting that the requirement of an affidavit puts unwed f ather on rough par with unwed mother by indicating that fa ther ―is willing to assume the parental role and fulfill

. . . corresponding r esponsibilities‖; also asserting that ―father who does not file an a f-In re Adoption of J.S.

Opinion of the Court in part

38 ¶78 The affidavit requirement in Utah Code secti on 78B

- 6

- 121(3) can be upheld as substantially advancing these important objectives. An unwed mother‘s connection to her child is obje ctively apparent

. It is also substantial. By elec ting to carry the child

to term ( and not ending it by abortion or emergen cy contrace ption ), a mother gives an objective indication of her commitment to
the best interests of her child. 34 Our law has long

- recognized the

fidavit does not acquire‖ the ―weight‖ afforded to a mother, who have already ―assume[d] the parental role‖ b y their decisions and conduct); id . at 35

– 36 (contending that affidavit requirement su bstantially advances important interests and is ― ̳narrowly tailored‘
because

. . .  ̳compliance

. . . is a very simple, easily understand able, and narrowly tailored proces s‘‖). To some extent our analysis expands upon the justifications identified in the law and by the appellees, but we find nothing in the logic or terms of the gover ning caselaw to limit our thinking to the precise bounds and terms of the parties‘ briefs. S uch a restriction would be more than a little troubling. On a matter as significant as judging the constitutiona lity of a duly enacted statute, surely our judges are expected to e xercise independent judgment and are not slaves to the precise
terms and anal ysis of the parties‘ briefs.

34 Our point is different from the one Justice Nehring‘s dissent addresses. Thus, we are not suggesting that the mother‘s acts are a precise parallel to the unwed father‘s burden (of filing the affid avit), or that either parent‘ s acts provide an ironclad assurance that they will ―care for the child after it is born.‖ Infra ¶ 107 . The degree of parallelism between the mother‘s and father‘s commitment does not exactly lend itself to precise mathematical comparison.
But we are unwil ling to denigrate the level of commitment inh erent in the decision to carry a child to term, or to gainsay the diff iculty of pregnancy or the availability of measures for ending a

pregnancy. See infra ¶ 108 (questioning whether ―a woman‘s so

called  ̳volunt ary decision‘ to carry the baby to term  ̳express[es]‘ anything about . . . her commitment to the child‘s best interest a fter it is born‖). And whatever level of commitment that decision entails, it bears emphasizing that the unwed father‘s required

commitm ent is relatively minimal; the mere signing of an affidavit containing a ―plan‖ for providing for a child is hardly onerous.Cite as: 2014 UT 51

Opinion of the Court in part

39 significance of that commitment. It does so by deeming a mother‘s parental rights and responsibilities as fully matured at the time of the child‘s birth, in a manner giving her a voice in the child‘s u pbringing

— either to proceed as the child‘s parent or to relinquish her rights in consenting to an adoption.

¶79 An unwed father‘s role is inherently different than a
moth er‘s

. His connection to his offspring may be unknown or at
least indeterminate. And unlike the mother, the father has not necessarily given an objective manifestation of his commitment to the child‘s best interests, as his contribution may be only fleeting and incidental. This is why our law has long deemed the unwed father‘s rights as only inchoate or provisional

— as requiring the fulfillment of legal prerequisites before being granted the rights and responsibilities of parenthood

, and before being given a co ncomitant voice in upbringing or a decision regarding adoption

. 35

It is easy to hypothesize ―examples of women who choose not
to have an abortion but who nevertheless failed to provide the n ecessa ry care for their children.‖ Infra ¶ 108 n.7 8 . But again, the point of our analysis is not that a mother‘s decision to bring a child into the world is an effective guarantee. It is that the decision provides some useful information. And the shortcomings of the
mother‘s commitment can also be extended to that of the father. We likewise do not have to look far to find examples of men who expressed a legal commitment to their children but nevertheless failed to provide the necessary care. Neither problem rende rs the attempt to secure a parent‘s commitment illegitimate. And the shortcomings of the mother‘s commitment are not a sufficient b asis for striking down the legal requirement for the father on grounds of unconstitutionality. The law imposes a rough

- and

re ady tradeoff for unwed mothers and fathers. We find the m inimal imposition of the affidavit requirement to be justified by the
substantial interests that it advances. See supra ¶ 70 (explaining the applicable standard of scrutiny, and noting that this is n ot a case requiring narrow tailoring, or an ―exceedingly persuasive justification‖ for an outright bar to an opportunity for one of the sexes).

35 Justice Nehring‘s denunciation of the statutory scheme is puzzling in light of the longstanding

— and widespread

— acceptance of this general construct in the law across the country.In re Adoption of J.S.

Opinion of the Court in part

40 Our Adoption Act is hardly unique in requiring unwed fathers (but not mothers) to step forward to fulfill statutory prerequisites
to the establishment of parental rights. Every state requ ires put ative fathers to fulfill some formal requirement that is not imposed on mothers, e.g., by registering with a putative father registry or by taking some other affirmative act such as filing a paternity suit.

See Mary Beck, Toward a National Putative Father Registry Database

, 25 H ARV

. J.L. & P UB

. P OL ‘ Y 1031, 1080, (2002) (detailing putative father registries in thirty

- two states, all of which place an onus on the putative father not placed on the unwed mother); Children‘s Bureau, U.S. Dep‘t of Health & Human Servs., The Rights of U nmarried Fathers (2014), available at https://www.childwelfare.gov/systemwide/laws_policies/statu tes/putative.pdf (detailing paternity statutes in all fifty states and various methods of establishing paternity whether by regi stration, paternity action, or paternity affidavit). Granted, there are diffe rences in the laws of the states as to the precise nature of the f ather‘s legal duty. But the uniform rule throughout the United States is that an unwed father is required to make a formal sho wing

— in some manner not required of unwed mothers

— to esta blish his parental rights. Noticeably absent from the national legal landscape is a requirement of a maternity declaration for unwed
birth mothers. And in that sense the discrimination t hat the di ssent complains of is hardly an obscure feature of Utah law; it is a longstanding, well

- settled element of the law across the country. So if our law can accurately be denigrated as a product of sex

based stereotyping , then the same is true of the law of essentially every other state throughout the country. The dissent‘s dismissive denigration of Utah law falls flat on that and other grounds.

It is a fair question to ask whether the requirements of Utah law (in particular, the filing of an affidavit) go further than nece ssary. But that is at heart a policy question

— a matter of line

drawing, as to whether a paternity filing itself is sufficient to a dvance the state‘s interests, and to place an unwed father on equal footing with the unwed moth er. Justice Nehring takes no issue, in either his procedural or sub stantive due process analysis, with ―other requirements‖ the st atute imposes to ensure that an unwed father has accepted the r esponsibilities of parenthood. See infra ¶¶ 121, 131. To that extentCite as: 2014 UT 51

Opinion of the Court in part

41 ¶80 The fundamental differences 36 between unwed mothers and fathers explain the basis for our statute‘s requirement of an affidavit for only the latter. The affidavit is defensible as a n a ttemp t to put unwed parents on equal footing. M others express their commitment to their offspring through the voluntary dec ision to carry a child to term

— a decision that commits them to the

he acknowledges that unwed fathers may properly be subjected to requirements that unwed mothers are not. See infra ¶ 131 (co ncluding that the statute‘s ―other requirements . . . suffice to ensure that the unwed father has accepted responsibility and stepped forward as a parent‖). As to another requirement that further a dvances this important objective, however, Justice Nehring co ncludes that the legislature has taken things a step too far. Reaso nable minds can differ on the question whether that requ irement (of an affidavit) is substantially related to ensuring the objective that all agree is important. But our disagreement on this matter can hardly justify the loaded rhetoric

— of outmoded stereotypes

— employed by Justice Nehring infra ¶ 111.

36 The rele vant ―differences‖ are not mere matters of physiol ogy, or of any inference that ―a woman‘s physical characteristics‖ sustain ―generalizations about her feelings‖ sufficient to suggest a ―greater commitment to the best interest of her child.‖ Infra ¶ 111 (N ehring, A.C.J., dissenting) . The point is much narrower

— that a mother‘s decision to carry a child to term is a rough parallel to the minimal commitment expressed in a mere affidavit. Thus, we r eject the dissent‘s characterization of Utah law as ―founded in sex stereotypes ,‖ and its attempt to paint this opinion with the brush of a ―long line of overruled laws and cases ‖ evidencing such a
mindset. Infra ¶ 111

. We can properly disagree about the wisdom of the legisl ature‘s policy decision to add a requirement of an affidavit to the nearly universal requirement of a paternity filing. And we can likewise disagree about whether our differences on that point rise to the level of a constitutional problem. But our differences go o nly to the complex legal questions p resented. With due respect to our dissenting colleague, they are not a product of any form of

sex

- based stereotyping , much less our agreement with the ou tmoded thinking expressed in the precedent cited by Justice Neh ring. Infra ¶ 111 & n. 8 5

.In re Adoption of J.S.

Opinion of the Court in part

42 statutory responsibility of caring and providing for the child as a leg al parent. See U TAH C ODE § 78B

- 15

- 201(1) ( stating that the
mother

- child relationship is established by a ―woman‘s having given birth to the child‖); id . § 78B

- 12

- 105 (parents have legal duty to ―support their children‖). With that in mind, the Adoption Act requires unwed fathers to express a parallel commitment in the
form of a written affidavit. That parallelism may not be perfect or immune from criticism as a policy matter, but it is not unconstit utional.

¶81 We uphold the statutory affidavit requirement on t hat
basis . Thus, we hold that the requirement in Utah Code section

78B

- 6

- 121(3) substantially advances the important governmental interests identified above. It does so by assuring t hat any biolog ical parent who steps forward to assert an interest in a child has
manifested a commitment to the child‘s best interests. In light of
the fact that the mother does that as an objective result of her

pregnancy and delivery , the statute require s the father to do so by expressing a commitment in writing and under oath.

¶82 Both commitments are important prerequisites to the m aturation of the parental right

— and to the voice that accompanies such a right in the context of an adoption. Where both mother and father have provided the commitment that is legally necessary t o a mature parental right, the y both are in a position to participate
in the decision whether to raise the child themselves or to place it for adoption. If not, however, the law treats the decision as b elonging only to the parent whose rights have matured. That is constitutionally permissible, as it substantially advances the i mportant goal of protecting the best interests of children, who are in turn substantially interested in establishing binding connections to committed parents (natural or adopted) base d on informed d ecisions of those who have shown to have their best interests at
heart. 37

37 As Justice P arrish notes in her dissent, the statute does not hold an unwed mother to the same ―commitment‖ required of an

unwed father

— of attesting under oath ―that he is fully able and willing to have full custody of the child,‖ of ―set [ ting ] forth his plans for car e of the child,‖ and of ―agree [ ing ] to a court order of child support and the payment of [pregnancy and child birth] e xpenses.‖ Infra ¶ 155 (Parrish, J., dissenting) (quoting U TAH C ODECite as: 2014 UT 51

Opinion of the Court in part

43 ¶83 Bolden questions the importance of these functions of the statutory affidavit, asserting that the statutory requirement of a paternity filing accomplishes approximately the same things. Ju stice Nehring‘s dissent echoes this assertion. Infra ¶ 102

. But Bo lden‘s paternity petition was unverified, and a signature under
oath is a matter of substantial legal significance

. See State v. Gutie rrez

- Perez

, 2014 UT 11, ¶¶ 14

– 20 , 32 3 P.3d 1017 (describing the hi story and significance of the constitutional requirement of an ―oath or affirmation‖). And in any event the prescribed elements of the

§ 78B

- 6

- 121(3) (third alteration in original) ). But this is not a basis for doubting the ―fit‖ between the governmental interest of pr otecting the best interests of children and the means prescribed by

statute. Infra ¶ 155 (Parrish, J., dissenting) . It is simply a reflection of the essence of an adoption proceeding. Of course the mother who chooses to place her child with adoptive parents is not r equired to attest to her desire and ability to retain custody of the child, to present a plan for its care, or to subject herself to a court order to pay for its needs. We are dealing here with an adoption,
in which the mother has determined that she is not in a position to do any of these things. So the lack of parallelism between father
and mother is not an indication of a lack of fit between means and ends; it is just a reflection o f the very different positions of unwed mother and father in this setting.

At the time of the child‘s birth, there can be no question that the mother‘s demonstrated commitment to the child is dispropo rtionate to the father‘s. And at that point, it cannot properly be said that the mother has provided no indication of any ―forward

looking commitment to her child,‖ or that the father has shown an
―identical level of commitment.‖ Infra ¶ 156 (Parrish, J., dissen ting). Surely the mother‘s sacrifice in carrying the child to term is
some indication of her commitment to the child‘s best interests. See supra ¶ 78. And without some affirmative requirement of a commitment by the father (through the statutory affidavit, for e xample), it cannot properly be said that the mother and father are on equal footing. We can disagree with the legislature about the best place to draw the line. But our disagreements on line

drawing do not establish the unconstitutionality of the statutory scheme under a standard that does not requi re a precise fit b etween means and ends.In re Adoption of J.S.

Opinion of the Court in part

44 affidavit are not required components of a paternity petition.

N othing in the Parentage Act imposes an unconditional requir ement that a support order be entered, see U TAH C ODE § 78B

- 15

- 616, or requires that a father state that he will accept full custody. Indeed, a determination of paternity may have nothing to do with custody. And nothing in the Parentage Ac t asks for a childcare plan. 38

¶84 Thus, the affidavit advances important functions that are
not addressed by the paternity action alone. We uphold the st atute on that basis , and accordingly affirm the denial of Bolden‘s

motion to intervene in the adoption proceedings h erein

.

38 Justice Nehring‘s dissent challenges the element of a chil dcare plan in the affidavit requirement, noting that there is nothing in a mother‘s commitment to her child that requires an explicit plan. Infra ¶ 107 (Ne hring, A.C.J., dissenting) . Yet

, that concern discounts the fact that a mother‘s legal obligations as a parent n ecessitate some sort of plan as a practical matter. In any event, Bo lden is in no position to complain about the particular elements of the affidavit requirement, as he failed to file any affidavit at all. And ultimately, the dissent‘s argument again misperceives the governing legal standard. The question is not one of narrow tailo ring ; the required fit between means and ends is only a matter of substantiality , and we find the rough comparability between the mother‘s expression of commitment and planning and that r equired of the father to be sufficient.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

45 A SSOCIATE C HIEF J USTICE N EHRING , dissenting :

INTRODUCTION

¶85 I dissent

. First, Utah Code section 78B

- 6

- 121(3)(b) u nconstitutional ly discriminates on the basi s of gender stereotypes and is thus repugnant to the principle of equal protection e nshrined in both the United States Constitution and the Utah Co nstitution. Second, the majority refuses to analyze Mr. Bolden‘s claim under procedural due process at all. Fin ally , the majority fails to employ strict scrutiny review despite the fact that section

78B

- 6

- 121(3)(b) i nfringe s upon Mr. Bolden‘s fundamental parental right s . Although I believe the statute is unconstitutional primarily as a violation of equal protection, I also dissent because the aff idavit requirement violates the Due Process Clause where it i nfringes on Mr. Bolden‘s fundamental parental right s but is not narrowly tailored to serve a compelling government interest.

¶86 ― The relationship between parent and child is protected by the federal and state constitutions.‖ 1 Among the persons e ntitled to protection are unmarried fathers. 2 The liberty interest of parents in the care, custody, and control of their children ―is pe rh aps the oldest of the fundamental liberty interests‖ recognized by the United States Supreme Court. 3 Mr. Bolden challenges Utah
Code section 78B

- 6

- 121(3)(b)

— the affidavit requirement

— as a v iolation of both due process and equal protection under the United
States Constitution and the Utah Constitution. I would hold that (1) Utah Code section 78B

- 6

- 121(3)(b) unconstitutionally discrim inates on the basis of gender stereotypes and thus fails to survive
intermediate scrutiny under the Equal Protection Clause

, (2) as applied to Mr. Bolden

, the process set forth in section 78B

- 6

- 121(3) is fundamentally unfair and thus a deprivation of procedural due

process , and (3) Utah Code section 121(3) infringes upon a fu n-

1 Wells v. Children’s Aid Soc’y of Utah , 681 P.2d 199, 202 (Utah 1984).

2 Lehr v. R obertson , 463 U.S. 248, 261 (1983); Caban v

. Mohammed, 441 U.S. 380, 394 (1979); Stanley v. Ill inois , 405 U.S. 645 , 651

– 53 (1972); Thurnwald v. A.E., 2007 UT 38, ¶¶ 25, 28, 163 P.3d 623 ; Wells , 681 P.2d at 202.

3 Troxel v. Granville , 530 U.S. 57, 65 (2000) ; see also Meyer v. Nebraska , 262 U.S. 390, 399, 401 (1923).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

46 damental right and is unconstitutional under strict s crutiny r eview.

ANALYSIS

I. UTAH CODE SECTION 78B

- 6

- 121(3)(b)

UNCONSTITUTIONALLY DISCRIMINATES

ON THE BASIS OF SEX

¶87 I dissent because I believe the affidavit requirement v iolates e qual p rotection. It does so primarily by discriminating b etween the sexes on the basis of gender stereotypes and failing to satisfy the heightened scrutiny standard. To its credit, the major ity acknowledges that section 78B

- 6

- 121(3)(b) discriminates on the basis of sex. The majority accurately explains that sex is a suspect
cl ass that is ―so generally problematic (and so unlikely to be re asonable)‖ that it ―trigger[s] heightened scrutiny.‖ 4 Unfortunately, the majority‘s successful application of the heightened scrutiny standard ends there. Though the majority pays lip service to the proper standard, it fails to actually engage in a heightened scrut iny analysis. 5 I respectfully dissent because I believe the majority (1) fails to conduct a searching inquiry into the actual purposes behind the legislation and does not ferret out the stereotypes that underlie it, (2) fails to require the Does to bear their burden to ju stify the discriminato ry classification, and (3) fails to recognize that the statute is not related to any important government purpose where it both stems from gend er stereotypes and is duplicative of other statutory requirements.

4 Supra ¶ 68; Nguyen v. I.N.S. , 533 U.S. 53, 60 (2001); see also Utah Safe to Learn

- Safe to Worship Coalition, Inc. v. State , 2004 UT 32, ¶ 31, 94 P.3d 217 (―Where a legislative enactment implica tes a fundamental or critical right or creates classifications which are considered impermissible or suspect in the abstract, we apply a heightened degree of scrutiny.‖ (internal quotation marks omi tted)).

5 As explained by Justice Parrish in her dissent, the majority mangles the heightened scrutiny test by applying a lesser sta ndard that closely resembles rational basis review. See infra ¶ 148 (―[I]t appears to me that the majority opinion‘s formulation of the lower level of intermediate scrutiny it appli es is, in practice, vi rtually indistinguishable from . . . rational basis review

. . . . ‖).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

47 ¶88 The United States Constitution provides that ― [ n ] o State shall . . . deny to any person within its jurisdiction the equal pr otection of the laws,‖ 6 and the Utah Constitution guarantees that

― [ a ] ll laws of a general nature shall have uniform operation.‖ 7 ―[T]hese two constitutional provisions embody the same general principle: persons similarly situated should be treated similarly

. . . . ‖ 8 Althoug h the uniform operation of laws provision of the Utah Constitution ―establishes different requirements from the federal Equal Protection Clause,‖ Utah‘s uniform operation of the laws provision is ―at least as exacting, and in some circumstances, more rigor ous than the standard applied under the federal constit ution.‖ 9 Therefore, any provision that fails to meet the federal

e qual p rotection standard would likewise fail under article I, se ction 24 of the Utah Constitution, and some provisions that survive

un der federal law might fail under the Utah Constitution. B ecause Utah Code section 78B

- 6

- 121(3)(b) (the affidavit requir ement) discriminates against men without adequate justification
and on the basis of invidious gender stereotypes, I would hold
that it v iolates the principles of equal protection enshrined in both

constitutions.

¶89 Utah Code section 78B

- 6

- 121(3) (b) states that an unma rried father‘s infant may be adopted without his consent unless he files a ―sworn affidavit‖ (1) ―stating that he is fully able and wil ling to have full custody of the child,‖ (2) ―setting forth his plans for care of the child,‖ and (3) ―agreeing to a court order of child

6 U.S. C ONST . amend. XIV, § 1.

7 U TAH C ONST . art. I, § 24.

8 Gallivan v. Walker , 2002 UT 89, ¶ 31, 54 P.3d 1069 (internal quotation marks omitted).

9 Whitmer v. City of Lindon , 943 P.2d 226, 230 (Utah 1997) (e mphasis added) (internal quotation marks omitted); see also State v. Drej , 2010 UT 35, ¶ 34 n.6, 233 P.3d 476 (―Rather than conforming to the federal rubric, we have developed two levels of scrutiny for

our a nalysis of the constitutionality of a statutory scheme under
the uniform operation of laws provision.‖); Greenwood v. City of N.
Salt Lake , 817 P.2d 816, 821 (Utah 1991) (stating that the test under article I, section 24 of the Utah Cons t itution is ―somewh at more restrictive than the federal test‖).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

48 support and the payment of expenses incurred in connection with the mother‘s pregnancy and the child‘s birth.‖ 10 The unwed mother is not required to file an affidavit.

¶90 Because Utah Code section 78B

- 6

- 121(3)(b) facially di scriminates on the basis of sex, it can be upheld only if the classif ication (1) serves ―important governmental objectives‖ and (2) ―the

discrimi natory means employed are substantially related to the achievement of those objectives.‖ 11 Today the court completely abandons this test in favor of a vision of equal protection that a llows discriminatory laws to be upheld when the court believes
that the d iscriminatory requirement is ―straightforward and quite simple,‖ ―relatively minimal,‖ and ―hardly onerous.‖ 12 But a co nsideration of the severity of the harm to the discriminated

- against class is an improper consideration that has no role in the equal

pro tection analysis. 13 It does not matter how ―simple‖ or

10 The unmarried father must also satisfy three other requir ements: He must (1) initiate proceedings to establish paternity in a Utah district court, (2) file notice of the commencement of patern ity proceedings with the Department of Health, and (3) offer to pay and pay (if possible) ―a fair and reasonable amount of the e xpenses incurred in connection with the mother‘s pregnancy and
the child‘s birth.‖ U TAH C ODE § 78B

- 6

- 121(3)(a), (c)

– (d).

11 Miss. Univ. for Wome n v. Hogan , 458 U.S. 718, 724 (1982) (i nternal quotation marks omitted) ; Nguyen , 533 U.S. at 60; United

States v. V

irgini a , 518 U.S. 515, 533 (1996).

12 Supra ¶¶ 73, 78 n.3 4 ; see also supra ¶ 4 (describing the affid avit requirement as ―a minor step‖ and a ―simple, straightforward hurdle‖ that ―countless unwed fathers have cleared‖).

13 See, e.g.

, Baskin v. Bogan

, 766 F.3d 648, 656 (7th Cir. 2014) (―When a statute discriminates against a protected class [,]

. . . it doesn‘t matter whether the harm inflicted by the discrimination is a grave harm . . . . [ A ] statute that imposed a $2 tax on women but not men would be struck down unless there were a compelling
reason for the discrimination. It wouldn’t matter that the harm to each person discriminated against was slight

. . . .‖(emphasis added) )

. The majority also misstates Nguyen

, 533 U.S. 53

, on this point. S upra ¶ 73 (citing Nguyen for the proposition that ―it bears emph asi z ing

. . . that the requirement the statute imposes on men isCite as: 2014 UT 51

N EHRING , A.C.J., dissenting

49 ―straightforward‖ a discriminatory hurdle is

— under the Equal Protection Clause, the government may not place any hurdle in front of a protected class without adequate justification. The m ajority also relies on an age

- old justification for discrimination: that everyone else is doing it 14

— a claim which, even if it were true, does not provide a legal basis for upholding an unconstitutional law. Even if every state discriminat ed against men on the basis of their gender , ―[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional
law.‖ 15

straightforward and quite simple ‖)

. Nguyen does not support the notion that the ease with which one can comply with a discrim inatory requirement is somehow significant to the basic equal pr otection analysis. In Nguyen , the court first found that the discri mination was substantia lly related to two important governmental objectives and was not based on stereotypes. 533 U.S. at 62

– 70. Only then did the Court note that the challenged requirement was
also neither ―un n ecessary,‖ ―harsh[],‖ ―rigid [] ,‖ nor ―inordinate.‖

Id. at 70

– 71. The implication is that even if a statute were substa ntially related to an important government interest, it might still fail to pass intermediate scrutiny if the means used were overly harsh, rigid, or unnecessary. But the converse is not true: a statute does not pass the primary test of equal protection simply on the basis that the discriminatory requirement is easy to comply
with

— and the simplicity of the burden imposed should not affect the court‘s analysis of the primary questions of governmental i nte rest and substantial relation.

14 Supra ¶ 79 n.3 5 (―[T]he discrimination that the dissent co mplains of is hardly an obscure feature of Utah law; it is a longstanding, well

- settled element of the law across the country. So if our law can accurately be den igrated as a product of unfair
sex discrimination , then the same is true of the law of essentially every other state throughout the country.‖); supra ¶ 79 n.3 5 (―Ju stice Nehring‘s denunciation of the statutory scheme is puzzling in light of the longstandin g

— and widespread

— acceptance of this general construct in the law across the country. Our Adoption Act is hardly unique . . . .‖).

15 Baskin

, 766 F.3d at 671

.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

50 ¶91 T he United States Constitution‘s guarantee of equal pr otection of the laws is not subject to an exception for dis crimination that is ―minimal,‖ pervasive, nor which imposes a ―rough

- and

ready tradeoff.‖ 16 And the guarantee of equal protection applies even to laws that do not create an ―outright bar‖ against a pr otected class. 17 A s the United States Supreme Court explained in Mississippi University for Women v. Hogan

, ―t he party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification.‖ 18 The burden of justifying a discriminatory law is ―demanding‖ and ―rests entirely‖ on the party seeking to uphold it. 19

¶92 When confronted by a statute that facially discriminates on the basis of sex, the court‘s equal protection analysis should

consist of a rigo rous inquiry that answers the following two key questions. First: What is the governmental objective actually served by the statute, and is it an important one? Second: If the governmental objective is indeed important, is the discriminatory
classifica tion directly and substantially related to that objective? 20 The majority fails to properly analyze either of these questions. I

16 See supra ¶ 78 n.3 4

.

17 Reed v. Reed , 404 U.S. 71 (1971) (striking down a law giving preference t o men over women in administering estates); Frontiero
v. Richardson , 411 U.S. 677 (1973) (striking down a law that pr ovided that a woman could only claim her husband as a dependent if she submitted certain proof, whereas a man could automatically
claim his wife as a dependent). Contra supra ¶ 78 n.34.

18 458 U.S. 718, 724 (1982) (emphasis added) (internal quotation marks omitted); see also J.E.B. v. Ala bama ex rel. T.B. , 511 U.S. 127, 136 (1994); Virginia , 518 U.S. at 533.

19 Virginia , 518 U.S. at 533.

20 Miss. Univ. for Women , 458 U.S. at 725, 729

– 30 & n.16 (stri king down a nursing school‘s policy of excluding men from admi ssion under both parts of the equal protection test: (1) because the ―actual purpose underlying the discriminatory classification‖ was based on an archaic and overbroad stereotype and (2) ―also b ecause,‖ in any event, the classification was not ―substantially and directly related‖ to the state‘s ―proposed‖ objective).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

51 would hold that the statute fails to survive heightened scrutiny under both parts of the equal protection test.

A. The Govern ment Objective Served by Utah Code Section

78B

- 6

- 121(3)(b) I

s Illegitimate Because I t I s Based on the Stereotype T

hat Men Are Inherently Inferior Parents

¶93 By now it is well established that legislative objectives based on gender stereotypes are not legitim ate under any sta ndard of scrutiny. 21 To determine whether the government obje ctive is important, the court must engage in a ―searching‖ i nquiry. 22 It must take great care to ascertain ―whether the statutory objective itself reflects archaic and stereotypi c notions.‖ 23 If it does, ― the objective itself is illegitimate .‖ 24 Yet, instead of taking

― [ c ] are‖ to ―ascertain[] whether‖ the claimed statutory objective ―itself reflects archaic and stereotypic notions‖ 25 or ― perp etuate[s]‖ stereotypes about men‘s presu med ―inferiority‖ 26 as c aretakers, the majority not only accepts the Does‘ asserted legisl ative purpose but goes so far as to provide a justification of its own

invention. 27 This is impermissible under any formulation of heightened scrutiny. Although under the rational basis inquiry a court may uphold a law based on any conceivable legitimate go vernment interest, under heightened scrutiny it is the proponent of the legislat ion‘s burden to articulate an important government i nterest and show a substantial relationship between the interest and the discriminatory means. The ―mere recitation‖ 28 that the

21 Id. , 458 U.S. at 725; Stanton v. Stanton , 421 U.S. 7, 17 (1975).

22 Miss. Univ. for Women , 458 U.S. at 72 8

.

23 Id. at 725.

24 Id. (emphasis added).

25 Id

.

26 Virginia , 518 U.S. at 534.

27 See supra ¶ 75 (― [T] he state has a subsidiary interest in giving
voice to those with a demonstrated commitment to the best inte rests of the c hild.‖). This argument is found nowhere in the Does‘ brief, nor can it be found in the Adoption Act‘s statement of legi slative intent. U TAH C ODE § 78B

- 6

- 102. See also infra Part I .B

.

28 Frontiero , 411 U.S. at 690.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

52 legislative objective is important is not enough. Here, the majority simply accepts that the government goal served by Utah Code

section 78B

- 6

- 121(3)(b) is the ―preservation of the best interests of
children ‖ by ―establishing binding connections between children and parents.‖ 29 But this cannot simply be accepted at face value. 30

― [ B ] enign justifications proffered in defense of categorical excl usions [based on sex] will not be accepted automatically ; a tenable ju stification must describe actual state purposes, not rationalizations for actions in fact differently grounded.‖ 31

¶94 I disse nt because even the most minimally ―searching‖ 32 inquiry reveals the impermissible stereotyping at the root of Utah
Code section 78B

- 6

- 121(3)(b). The majority simply accepts that the purpose of Utah Code section 78B

- 6

- 121(3)(b) is to serve the
State‘s ―com pelling interest‖ in ―holding parents accountable for meeting the needs of children.‖ 33 But section 78B

- 6

- 121(3)(b), by its plain terms, does not apply to ―parents‖

— it applies to fathers. And the reason it does this is because the statute is actually base d on generalizations about men‘s inherent qualities as parents. A statutory objective that aims to ―exclude or  ̳ protect ‘ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior‖ is an ―illegitimate‖ o bjective. 34

¶95 The affidavit requirement reflects a negative stereotype that is commonly wielded against unwed fathers: that they are uninterested in their offspring and ill

- suited or incompetent car e-

29 Supra ¶¶ 74

– 75 (internal quotation marks omitted)

.

30 Frontiero , 411 U.S. at 690

.

31 Virginia , 518 U.S. at 535

– 36 (emphasis added) (internal qu otation marks omitted) ; see also Gallivan , 200 2 UT 89, ¶ 37 (―[I]t is unconstitutional to single out one person or group of persons from among the larger class on the basis of a tenuous justification
that has little or no merit.‖ (internal quotation marks omitted) ).

32 Miss. Univ. for Women , 458 U.S. at 728.

33 U TAH C ODE § 78B

- 6

- 102(5)(a) ; c f. id. at 78B

- 6

- 102 (5)(f) (stating that the Adoption Act aims to protect the compelling interest in children‘s welfare by ―requiring unmarried biological fathers to demonstrate commitment‖ (emphasis added) )

.

34 Miss. Univ . for Women , 458 U.S. at 725.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

53 givers. Telling language in the Does‘ brief captures thi s attitude: ―The requirement to set forth his plans for the child‘s care shows that [the unwed father] has at least thought through what he would need to do to fulfill his parental responsibilities‖ (emphasis added). More insight can be gleaned from the Does‘ quotation of In re Adoption of Baby Boy Doe for the proposition that the State has a legitimate interest in get ting a ―glimpse into how [the unwed father] will meet daily care

- giving responsibilities‖ 35 so that the
State can be assured that the unwed father will adequately fulfill the parental role. 36 The idea that men are inherently ill

- suited for caregiving and at greater risk of failing to ―fulfill‖ basic parental responsibilities is a stereotype and thus an entirely inappropriate legislative object ive. Indeed, this stereotype is precisely the flip side of the same generalization that has long been applied to

women

— i.e., that they are naturally well

- suited for the respons ibilities of childcare and the home. 37

¶96 The court of appeals‘ reasoning in In re Adoption of Baby Boy Doe is a perfect illustration of the improper stereotypes that
infect Utah Code section 78B

- 6

- 121(3)(b). There, the court held

35 N.T. v. Doe (

In re Adoption of Baby Boy Doe ) , 2008 UT App 449, ¶ 5, 199 P.3d 368

.

36 See also supra ¶ 83 . The majority defends the plan element of

section 78B

- 6

- 121(3)(b) by asserting that a mother has ―legal obl igations as a parent‖ that ―necessitate some sort of plan as a pra ctical matter

. ‖ Supra ¶ 83 n.38. It is not clear why the majority b elieves every woman

— as a mother

— develops a plan to care for her child ―as a practical matter‖ but a present, identified father who
ha s filed for a declaration of paternity does not, and instead must set his plan out in a sworn court document. Supra ¶ 83 n.38. It is certainly not true that fathers are not legally liable for neglect of
their children. See U TAH C ODE § 76

- 5

- 109 (crime of ― child aba ndonment‖ includes a ―parent[‘s]‖ ―intentional[] fail[ure]‖ to ―make reasonable arrangements for the safety, care, and physical custody of the child‖ or to ―provide the child with food, shelter, or clothing‖).

37 For another example of this stereotype, see Bradwell v. Ill inois

, 83 U.S. 130, 141 (1872) (―[T]he domestic sphere [is] that which properly belongs to the domain and functions of womanhood.‖).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

54 that an unwed father had failed to comply with Utah Code section

78B

- 6

- 121(3)(b)(ii)‘s requirement that he ―set[] forth his plans for
care of the child.‖ 38 The court found that the father had not sati sfied the planning requirement because he did not provide a ―glimpse‖ into his plan for day

- to

- day life with the child. 39 The court clarified its holding in a footnote: ― [ W ] e believe the legisl ature intended that the putative father at least specify that he has a source of income and identify who will care for the child while he is working to earn that income .‖ 40 This reasoning captures the ―a ctual purposes und erlying‖ section 78B

- 6

- 121(3) : to wit, to protect children on the basis of entrenched, inaccurate, and offensive st ereotypes about men ‘s and women‘s innate qualities and proper
roles. 41 As the United States Supreme Court has repeatedly rea ffirmed

, governm ent policies cannot reflect ―archaic and ove rbroad generalizations about gender,‖ ―outdated misconceptions concerning the role of females in the home,‖ or ―outmoded n otions of the relative capabilities of men and women.‖ 42

¶97 The majority‘s own phrasing is tel ling: ―[T]he statutory affidavit requirement . . . assur[es] that any biological parent who steps forward to assert an interest in a child has manifested a commitment to the child‘s best interests.‖ 43 Of course, because

38 In re Adoption of Baby Boy Doe , 2008 UT App 449, ¶ 5.

39 Id.

40 Id. ¶ 5 n.2 (emphasis added)

.

41 Miss. Univ. for Women , 458 U.S. at 728.

42 J.E.B. , 511 U.S. at 135 (internal quotation marks omitted) ; see also Virginia , 518 U.S. at 533 (explaining that the state‘s justific ation ―must not rely on overbroad generalizations about the diffe rent talents, capacities, or preferences of males and females‖); City of Cleburne v. Cleburne Living Ctr

. , 473 U.S. 432, 441 (1985); Wei nberger v. Wiesenfeld , 420 U.S. 636, 643 (1975); Stanton , 421 U.S. at
14

– 15 (1975); c

f. Pusey v. Pusey

, 728 P.2d 117, 119

– 20 (Utah 1986) (―Discontinu[ing] our support‖ for ―gender

- based preferences in child custody cases‖ and holding that the maternal preference rule ―lacks validity because it is unnecessary and perpetuates
outdated stereotypes ‖).

43 Supra ¶ 81.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

55 under the majority‘s reasoning a mo ther‘s commitment is simply
assumed when the child is born, 44 when the majority says ―biolo gical parent ,‖ it can only mean ―biological father.‖ Thus, the majo rity holds that the affidavit requirement is justified as a way of e nsuring that fathers ―reliably ‖ indicate their ability to ―fulfill their parental role.‖ 45 But there is no rational reason to assume that a father‘s ability to fulfill the parental role is any less reliable than a mother‘s. The only way to accept such an assumption is to e mbrace the s tereotype that unwed fathers are inherently less reliable parents. It is only by accepting the stereotypes underlying section

78B

- 6

- 121(3)(b) that the majority is able to justify its conclusion that fathers may be required to take extra steps to ensure th e State that their desire to parent (and ability to parent) is reliable and g enuine. For this reason

, the majority‘s affirmation that an unwed father may be required to ―reliably‖ manifest a commitment to ―fulfill[ing] [his] parental role‖

— via sworn affid avit containing a written parenting plan

— perpetuates the stereotyping at the heart
of the statute. 46

44 See supra ¶¶ 78, 80 (―An unwed mother‘s connection to her child is objectively apparent

. . . . Mothers express their commi tment to their offspring through the voluntary decision to carry a
child to term

. . . . ‖).

45 Supra ¶ 75 (footnote omitted).

46 The majority states that it ―emphatically‖ does not intend to suggest that fathers are inherently unreliable or untrustworthy. Supra ¶ 75 n.2 8 . I do not doubt that my colleagues eschew such beliefs. But the point remains that section 78B

- 6

- 121(3)(b) ex ploits those unfair stereotypes. The majority misses the point when it describes the affidavit requirement as aimed at ―indicating who has parental rights and standing

, ‖ supra ¶ 75 n.28,

— as I will e xplain, the affidavit requirement is not aimed at identif ying fathers. By its own plain terms, the purpose of the affidavit requirement is specifically to require unwed fathers to (1) swear that they ―are fully able and willing to have full custody,‖ (2) ―set[] forth . . . plans for care of the child,‖ and (3) ―agree[] to a court order of child support and the payment of expenses.‖ U TAH C ODE § 78B

- 6

- 121(3)(b).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

56 ¶98 The government policy represented by Utah Code se ction 78B

- 6

- 121(3) reflects the invidious and outdated stereotype that fathers are not only generally les s interested in parenting than mothers, but in fact possess inferior abilities and instincts in that
realm. I would strike down section 78B

- 6

- 121(3)(b) on that basis and would thereby affirm ―what, by now, should be axiomatic:

Intentional discrimination o n the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, ar chaic, and overbroad stereotypes‖ about the innate characteristics

of men and women. 47

B . The Affidavit Requirement I s N ot Substantially Related to the Proposed Government Interest

¶99 Although I would strike down the statute as based on an illegitimate underlying purpose, 48 I write further to note that the statute is also unconstitutional because there is no ―direct, su bstantial relationship between objective and means.‖ 49 Thus, even accepting the legislative purpose in its most favorable light, the discriminatory classifica tion is not substantially related to that o bjective. 50 I disagree with the majority‘s conclusion that the affid avit requirement ―can be u p held as substantially advancing‖ i mportant government interests for three reasons. First, instead of requiring the Do es to satisfy their ―demanding‖ burden to justify the discrimination, the majority instead supplies a justification for
them

— this is impermissible under heightened scrutiny. Second, the discriminatory affidavit requirement is redundant and thus
cannot be ―substantially related‖ to the goal of ensuring a father‘s commitment to assuming a parental role. Third and finally, the physical fact of pregnancy and birth does not ―express‖ 51 an ything about a woman‘s inherent attitudes, intentions, or feelings.

47 J.E.B. , 511 U.S. at 130

– 31

.

48 See supra Part I.A

.

49 Miss. Univ. for Women , 458 U.S. at 725.

50 See, e.g.

, id. at 730 (―The policy is invalid also becaus e it fails the second part of the equal protection test, for the State has made no showing that the gender

- based classification is substantially and directly related to its proposed .

. . objective.‖).

51 Supra ¶ 80.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

57 In ot her words, biological differences, while real, do not justify stereotypes and generalizations about women‘s supposedly inh erent feelings toward their infants. Biological differences cannot be used to perpetuate the gender stereotypes inherent in the major ity‘s notion that the mother, simply because she is the mother, has a special ―voice‖ 52 that the father lacks, to decid e the fate of the
child. 53

1. The Majority Fails to Require the Does to Bear Their Burden to Justify the Discriminatory Classification

¶100 De spite the fact that under heightened scrutiny the ―burden of justification is demanding and it rests entirely on the
State‖ 54 (or in this case, on the proponent of the legislation, the Does), the majority

, sua sponte

, supplies a justification that the

Does did not proffer: that the physical differences between men and women indicate a mother‘s inherently greater ―commitment‖ to her child at birth and therefore justify requiring a father to ―e xpress a parallel‖ commitment by swearing that he has the money,

t he desire, and the know

- how necessary to raise his child. 55 In so doing, the majority employs a rational basis standard under the guise of heightened scrutiny. Under rational basis review, the

52 Supra ¶ 75 (state has interest in ― giv ing voice to those with a demonstrated commitment‖); supra ¶ 78 ( ―[ a ] mother‘s parental rights .

. . give[] her a voice in the child‘s upbringing‖); supra ¶ 82 (commitment, which mother shows simply by giving birth, is an ―important prerequisite[] .

. . to the voice that accompanies [the parental right] in the context of an adoption‖).

53 As I point out above, the stereotype that women are inh erently well

- suited and competent parents implicates the mi rror stereotype that men are inherently less caring, less skilled, and less invested parents.

54 V irgini a , 518 U.S. at 533; Miss. Univ. for Women , 458 U.S. at 724; Utah Safe to Learn

- Safe to Worship Coalition, Inc. , 2004 UT 32, ¶ 24 (stating that under Utah‘s heightened scrutiny test ―the bu rden of proof shif ts to the State to show that a challenged provision actually and substantially furthers a valid legislative purpose and is reasonably necessary to further a legitimate legislative goal‖ (i n ternal quotation marks omitted) ).

55 S upra ¶ 80; U TAH C ODE § 78B

- 6

- 1 21(3)(b).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

58 burden is on the one ― attacking‖ the law to show that there is no ―conceivable‖ legitimate interest that justifies the classification, and thus the court will uphold the law if there is any ―conceivable basis which might support it.‖ 56 Not so for heightened scrutiny. Under heightened scrutiny, the burden is on the p roponent of the legislation to show that the actual

— not merely conceivable

— underlying purpose is an important one. 57

¶101 The majority writes that the important legislative obje ctive underlying Utah Code section 78B

- 6

- 121(3)(b) is the ―prese rvation of the best i nterests of children,‖ which it says is pursued through State efforts to establish ―binding connections between children and parents‖

— a goal which, in turn, is accomplished by ―giving voice to those with a demonstrated commitment to the
best interest of th e child.‖ 58 The majority then reasons that b ecause a mother, by virtue of her physical role in the birth, has a utomatically demonstrated her commitment, the government‘s f athers

- only affidavit requirement is justified. 59 Although the Does
listed a number o f ―compelling reasons‖ that they believe justify the affidavit requirement, ―biological differences between men and women‖ was not one of them. Nor is the majority‘s biolog ical

- differences justification found anywhere in the Adoption Act‘s

statement of le gislative intent. 60 The justifications that the Does actually proffered are worth noting. They are:

The S tate has a ―compelling interest in identifying

unwed fathers who will actually assume the parental

56 Armour v. Indianapolis , 132 S. Ct. 2073, 2082 (2012).

57 Virginia , 518 U.S. at 533, 535

– 36.

58 Supra ¶ 74

– 75 (internal quotation marks omitted) . The m ajority also describes the State‘s interest as an interest in ―giving
voice to those with a dem onstrated commitment to the best inte rests of the child.‖ Supra ¶ 75.

59 Supra ¶ 78 (―By electing to carry the child to term (and not ending it by abortion or emergency contraception), a mother gives an objective indication of her commitment . . .

. giving her a voice in the child‘s upbringing

. . . .‖).

60 U TAH C ODE § 78B

- 6

- 102.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

59 role and fulfill the corresponding responsibilities .‖ (Emphasis added.)

―[I]t is usually best for the child if the mother d ecides soon after the child‘s birth whether she will

. . . allow the father to raise the child

. . . . To aid the mother in making this crucial decision, it is completely u nderstandab le that the Legislature would require an
unwed father to make the sworn statements.‖ (E mphasis added.)

―[I]t is commonplace for an unwed mother to be lulled into deciding to parent her child by false promises made by the father, only to find out too
late t hat she alone must shoulder the entire burden

. . . . A mother who has the courage to place her child for adoption should not have to wonder whether the adoption may later be undone by a putative father.‖ (Emphasis added .)

―[I]f a man is not willing to legally commit to the mother and her future children by marrying her prior to the child‘s conception, it is not unduly harsh to require him to file a sworn affidavit.‖

―The affidavit requirement serves the further pu rpose of f erreting out those cases were [sic] the put ative father truly does not want to be responsible for the
child , but has been put up to filing a paternity action to obstruct the adoption by someone else.‖ (Emph asis added .)

Given the quality of these assertions, perhaps it is unsurprising that the majority chose to come up with its own justification for the government interest underlying the discrimination in section

78B

- 6

- 121(3)(b). However, under heightened scrutiny, the burden is on the proponent o f the discriminatory legislation to show the actual purpose behind the legislation. 61 The majority cannot step in and attempt to relieve the Does of their burden to justify Utah
Code section 78B

- 6

- 121(3)(b)

— yet, the majority does exactly this

61 Virginia , 518 U.S. at 535

– 36.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

60 by supplying the ―fundamental differences‖ rationale. 62 I believe that the reasons proffered by the Does successfully showed the actual purpose of the legislation

— though not in the way they i ntended. All of the Does‘ proffered justifications are based on speculation, generalization, and stereotyping. The majority i mproperly attempts to reform the justifications put forward by the Does by coming up with, at best, a conceivable government obje ctive. Under heightened scrutiny, the majority may not do this. 63

2. Utah Code Section 78B

- 6

- 121(3)(b) I s N ot Substantially Related to an Important Government Interest Because I t I s Redundant

¶102 Even if one ignores the fact that the majority itself comes up with a government rationale justifying the discrimin ation and thus impermissibl y relieves the proponents of the legisl ation of their burden to do so, and even if one accepts that the go vernment‘s interest is legitimate and important, the affidavit r equirement is nonetheless unconstitutional because it is redundant and unnecessary. T he affidavit requirement does not provide any meaningful additional assurance that the father is ―commit [ ted ] to the best interests of the child‖ 64 beyond what is readily ascertai nable by the fact that he has stepped forward, identified himself, paid expens es (or offered to do so), and filed a legally binding document in a Utah district court declaring himself the father and expressing a corresponding willingness to assume all of the legal duties and responsibilities that come with that status. The other

re quirements of Utah Code section 78B

- 6

- 121(3) already show the unwed father‘s commitment to his baby. Under Utah Code se ction 78B

- 6

- 121(3)(a), (c), and (d), the father must file a paternity petition requesting custody and explicitly expressing his co mmitme nt to his child and desire to parent that child; he must file notice of that petition with the Utah Department of Health ; and he must pay or offer to pay expenses relating to the pregnancy and
birth. These actions indicate the father‘s commitment. Furthe r

62 Supra ¶ 80. And even if this were proper, as I explain in

Part I .B. 3 infra , the majority‘s biological

- differences justification
fails.

63 Virginia , 518 U.S. at 533; Miss. Univ. for Women , 458 U.S. at
724

– 25

.

64 Supra ¶ 75

.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

61 demonstration of that commitment by the discriminatory means of the affidavit requirement does not present an ―exceedingly pe rsuasive‖ justifica tion for the discrimination, especially when the affidavit is based entirely on invidious stereotypes about me n‘s inherent parental inferiority. 65

¶103 It is not disputed that Mr. Bolden satisfied three of the four requirements of section 78B

- 6

- 121(3). The one requirement that he did not satisfy

— the affidavit requirement

— does not si gnificantly contribute to the gover nment‘s important interest in protecting children or ensuring that caretakers are committed to fulfilling their parental role.

¶104 In Nguyen v. I.N.S. , the United States Supreme Court upheld an immigration statute that favored mothers over fathers
on the basis that

, due to biology, at birth the father may be u nknown while the mother is easily identifiable. 66 The majority a ttempts to justify section 78B

- 6

- 121(3)(b) in part by alluding to this identity rationale. 67 But the affidavit requirement has nothing whatsoever to do with identifying the father, as its plain terms and the bulk of the majority‘s reasoning make clear

— it is i ntended to ensure the father‘s ―commitment‖ to care for the child. Moreover, other prov isions of the statute amply ensure that the father is not only identified but has indicated a desire and inte ntion to be a parent to his child, with all of the legal, moral, ethical, and practical obligations that come with that.

¶105 The other requirements of section 78B

- 6

- 121(3) ensure that the father is both identified and has ―com[e] forward to pa rticipate in the rearing of his child.‖ 68 Thus, even if the gover n-

65 As explained, the father must swear that he ―at least‖ has a plan for how he will ―financially care‖ for the child as well as how he will ―meet daily care

- giving responsibiliti es.‖ In re Adoption of Baby Boy Doe , 2008 UT App 449, ¶ 5 & n.2; U TAH C ODE § 78B

- 6

- 121(3)(b).

66 533 U.S. at 62

– 64.

67 See supra ¶ 79 (―[An unwed father‘s] connection to his offspring may be unknown or at least indeterminate

. ‖).

68 Lehr v. Robertson , 463 U.S . 248, 261 (1983) (internal quotation marks omitted)

.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

62 ment interest in ensuring a father‘s commitment is accepted, the affidavit requirement is unneces sary because other provisions of the Adoption Act already accomplish that goal.

3. Physical Differences Cannot B e Used to Justify Discrimin ation Based on Stereotypes

¶106 T he majority‘s reference to abortion is baffling. 69 The majority attempts to justify the d iscrimination wrought by secti on 78B

- 6

- 121(3)(b) by turning to the physical differences between men and women, seemingly inspired by the reasoning used by the Supreme Court in Nguyen v. I.N.S. 70 The majority proceeds under the premise that a woman‘s capaci ty to gestate and deliver a child provides ―useful information‖ about her attitude toward the child
and commitment to its interests. 71 But instead of citing any legal authority, the majority‘s reasoning on this issue appears to stem

from its own beliefs ab out ―the fundamental differences ‖ between men and women and what mothers ―express‖ by way of gestation and delivery. 72 Yet the majority‘s attempt to use a woman‘s phy sical experience of pregnancy to stand in for and justify assum p-

69 Supra ¶ 78 (―B y electing to carry the child to term (and not ending it by abortion or emergency contraception), a mother gives an objective indication of her commitment to the best interests of
her ch ild

. ‖)

.

70 533 U.S. at 64 (reasoning that, ―[g] iven that the mother is a lways present at birth, b ut that the father need not be,‖ a statute that employed a gender classification permissibly used ―gender specific terms‖ because it did so merely as a way of ― tak[ing] into account a biological difference between the parents,‖ namely, the mother‘s ―unique relationship to the event of birth ‖(emphasis ad ded)) ; supra ¶ 78 n.3 4

. The reasoning in Nguyen is inapplicable to
the statute we are faced with here because t here is no inherent
bi o logical difference between mothers‘ and fathers‘ commitment
to their children. 533 U.S. at 64.

71 Supra ¶ 78 n.3 4

.

72 Supra ¶ 80.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

63 tions about her ―inherent‖ parental attitudes 73 is itself founded in stereotypes. 74

¶107 C arrying a child to term could

— but does not necessar ily

— indicate a mother‘s concern for the fetus‘s interest before
birth

. 75 Regardless

, the successful completion of pregnancy and delivery says nothi ng about a mother‘s commitment to care for

the child after it is born. In other words, carrying a child to term says nothing about a mother‘s ability or willingness to have cu stody of the child post

- birth. It says nothing about her ―plan‖ to
care for the child. And it does not ensure that she is able to pay expenses she incurs in connection with the pregnancy and birth. In short, the fact that a woman carries a child to term is complet ely unrelated to the goals of the affidavit requirement. 76 Acco r-

73 Supra ¶ 2 (―Unwed mothers acquire parental rights

— and the accompanying right to object to an adoption

— as a result of the objective manifestation of the commitment to the child that is demonstrated by their decision to carry a child to term.‖); supra ¶ 78 (― B y el ecting to carry the child to term (and not ending it by abortion or emergency contraception), a mother gives an objective
indication of her commitment to the best interests of her child

. ‖);

supra ¶ 80 (―[F]undamental differences between unwed mothers
and f athers explain the basis for our statute‘s requirement of an affidavit for only the latter.‖ (footnote omitted) ); supra ¶ 78 n.3 4 (― W e are unwilling to denigrate the level of commitment inherent in the decision to carry a child to term, or to gainsay the di fficulty of pregnancy

. . . . ‖); supra ¶ 78 n.34 (― A mother‘s decision to bring
a child into the world . . .

. provides some useful information

. ‖).

74 Cf. Nguyen , 533 U.S. at 68 (explaining that because it is ―u ndeniable‖ that the unwed mother ‘s and father‘ s circumstances are different in terms of their need to be present at the birth and thus different in terms of the state‘s ability to identify them, this di stinction ―does not result from some stereotype, defined as a frame of mind resulting from irrationa l or uncritical analysis‖).

75 It is not a difficult thought experiment to imagine a pregnant woman who lacks concern for her unborn child‘s best interest, or who, for example, is unaware that she is pregnant.

76 See U TAH C ODE § 78B

- 6

- 121(3)(b) (requiring u nwed father to file an affidavit stating that he is ―fully able and willing to haveIn re Adoption of J.S.

N EHRING , A.C.J. , dissenting

64 dingl y, I would hold that the gender discrimination effected by the affidavit requirement is not reasonably related to the State‘s objective, however that objective is framed.

¶108 The affidavit requirement not only requires the father to
declare that he is ―able an d willing‖ to take full custody of his child, but also forces him to make a written ―plan‖ for the child‘s

care. 77 These requirements are future

- oriented. I fail to see how the mother‘s decision not to get an abortion indicates anything about her ability or willingness to care for her child after it is born. Moreover, I vehemently disagree that a woman‘s so

- called ―v oluntary decision‖ to carry the baby to term ―express[es]‖ anything about her plan for the child‘s care or her commitment to the
child‘s best interest after it is born. 78 For one thing, obtaining an abortion is painful, costly, time

- consuming, morally and religiou sly fraught, and, for many women, nearly impossible or actually impossible due to age, 79 religion, geography, employment d emands, or cost. For another, the fact of being pregnant and carr ying a baby to term is a physical reality that cannot rationally be used to surmise anything about the woman‘s internal feelings and intentions. In short, the majority‘s abortion rationale is not only based on impermissible gender stereotypes, but even taken on its own terms, it is absurd and illogical.

full custody,‖ ―setting forth his plans for care of the child,‖ and ―agreeing to a court order of child support and the payment of expenses incurred in connection with the mother‘s pregnancy and the child‘s birth‖).

77 Id.

78 The majority attempts to conflate a woman‘s pre

- birth action of not aborting the fetus with a post

- birth commitment to the child‘s care. This defies logic. Indeed, one does not need to look
far to find examples of women who chose not to have an abortion but who nevertheless failed to provide the necessary care for their children. Regrettably, our juvenile courts are full of cases of m aternal abuse and neglect

.

79 See U TAH C ODE § 76

- 7

- 304.5(2)(a)

– (b), (5) (prohibiting minors from obtaining abortions absent parental consent or judicial a pproval).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

65 ¶109 While it is of course true that a woman is inherently di fferent from a man in that she can become pregnant and theoret ically undergo an abortion, the m ajority improperly uses this di fference to justify a statute that is based not on biological difference
but rather on invidious stereotypes about the parenting attitudes and capabilities of men and women. 80

¶110 The majority‘s assumptions about the difference in
―commitment‖ between an unmarried mother and an unmarried father are not actually based on the physical reality of pregnancy
and birth. This is because a difference in commitment does not stem from a biological reality in the way that parental identity
under Nguyen does. 81 In other words, it is a biological reality that a father need not be present at birth. It is not a biological reality
that a woman is committed to the best interest of her child.

¶111 The majority uses a woman‘s physical characteristics to make generalizations about her feelings and assumes

, based on her gender alone

, that she has a greater commitment to the best
interest of her child. 82 This is a classic example of an ―overbroad

80 V irgini a , 518 U.S. at 533 (stating that the State‘s justification for a discriminatory law ―must not rely on overbroad generaliz ations about the different tal ents, capacities, or preferences of males and females‖); Caban v. Mohammed , 441 U.S. 380, 389 (1979) (―[M]aternal and paternal roles are not invariably different in i mportance . . .

. ‖).

81 533 U.S. at 62

– 63 (―In the case of the father, the uncontest able f act is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of f atherhood.‖).

82 The majority claims that it merely uses a woman‘s biology as a ―rough parallel‖ to the affidavit requirement

. Supra ¶ 80 n.3 6 ;

s ee also supra ¶ 83 n.3 8 (―[W]e find the rough comparability between the mother‘s expression of commitment and planning and that required of the father to be sufficient.‖ (emphasis added)). But simply adding the word ―rough‖ does not o vercome the defects in the majority‘s reasoning

— today the court holds that a woman‘s mere physical biology is ―parallel‖ to a father‘s written, sworn statement that, among other things, he has a detailed plan to raise
his child.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

66 generalization [] ‖ about gender. 83 Though I do not doubt my co lleagues‘ good intentions, the majority upholds a statute that is founded in sex stereotypes

— which are ―fixed notions‖ that the different genders are better or worse suited to certain tasks, such as nurturing. 84 Such stereotypes should have no place in our law, our courts, or our public policy. T he court today uphold s a di scriminatory statute on the basis of so

- called innate differences b etween men and women . But this reasoning ties it to a long line of
overruled laws and cases. In other words, unfair sex discrimin ation has long been perpetuated by arguments that sound in biol ogy

. 85 True, cases like Bradwell present particularly egregious e xamples of gender discrimination, but the reliance on ―nature‖ in such cases finds echoes in today‘s decision. Th e State may not use biology to justify ―classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned

83 Caban , 441 U.S. at 394 (internal quotation marks omitted) ; see also V irgini a , 518 U.S. at 541 (cautioning courts to take a ―hard look‖ at justifications for gender discrimination that rely on ―g eneralizations or tendencies ‖ or are ―based on fixed notions co ncerning the roles and abilities of males and females‖).

84 Virginia , 518 U.S. at 541; s ee also id. at 533 (describing gender stereotypes as “ overbroad generalizations about the different ta lents, capacities, or preferences of males and females ‖).

85 See, e.g.

, Bradwell v. Ill ino is , 83 U.S. 130, 141 (1872) (―[T]he ci vil law, as well as nature herself, has always recognized a wide di fference in the respective spheres and destinies of man and wo man. Man is, or should be, woman ‘ s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, ind icates the d omestic sphere as that which properly belongs to the domain and functions of womanhood.‖) ; s ee generally Virginia

, 518 U.S. at 542

– 545 (explaining historical attitudes about the di fferent roles of men and women); Frontiero , 411 U.S. at 684

– 85 (―There can be no doubt that our Nation has had a long and u nfortunate history of sex discrimination. . . . [ O ] ur statute books gradually became laden with gross, stereotyped distinctions b etween the sexes

. . . . ‖).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

67 judgment as to the fate of their children.‖ 86 For this reason I di ssent and would strike down Utah Code s ection 78B

- 6

- 121(3)(b).

¶112 I also take issue with the majority‘s assertion that we simply ―disagree about the wisdom of the legislature‘s policy d ecision to add a requirement of an affidavit.‖ 87 My disagreement with the majority is about the constitutionality of the statute , not the legislature‘s wisdom . The majority today upholds a statute that discriminates on the basis of gender. With all due respect, and as explained herein, the majority‘s decision is deeply flawed. The majority perpetuates the sexual s tereotypes embodied in Utah
Code section 78B

- 6

- 121(3)(b) and its decision today has allowed
unfair discrimination to remain enshrined in the laws of our S tate. I would hold that because Utah Code section 7 8 B

- 6

- 121(3)(b)
treats unmarried men and unmarried women differently without justification, it unconstitutionally discriminates based on sex.

II. THE AFF IDAVIT REQUIREMENT VIOLATED

MR. BOLDEN‘S RIGHT TO THE PROTECTION OF

PROCEDURAL AND SUBSTANTIVE DUE PROCESS

¶113 Mr. Bolden‘s challenge to the constitutionali ty of the a ffidavit requirement is a matter of first impression in this State. 88

86 Caban , 441 U.S. at 394; see also Frontiero , 411 U .S. at 686

– 87 (― [ S ] tatutory distinctions between the sexes often have the effect of invidiously relegating the entire class . . . to inferior legal status without regard to the actual capabilities of its individual me mbers.‖).

87 Supra ¶ 80 n.3 6 ; see also s upra ¶ 79 n

. 3 5 (―It is a fair question to ask whether the requirements of Utah law . . . go further than necessary. But that is at heart a policy question . . . .‖)

.

88 A lthough Utah appellate courts have been presented with cases where a putative father c omplied with all of the requir ements except the affidavit requirement, each time, the constituti onality of the affidavit requirement has evaded review. See Do njuan v. McDermott , 2011 UT 72, ¶ 22, 266 P.3d 839 (putative father failed to preserve constituti onal argument); E.G. v. C.C.D. ( In re Adoption of Baby Girl ) , 2010 UT App 114, ¶ 21 n.2, 233 P.3d 517 (constitutional argument not raised or preserved); N.T. v. Doe ( In re Adoption of Baby Boy Doe ) , 2008 UT App 449, ¶¶ 4

– 7, 199 P.3d 368 (constitutional arg ument not raised). In his dissent in In reIn re Adoption of J.S.

N EHRING , A.C.J. , dissenting

68 Mr. Bolden concedes that he did not comply with the affidavit r equirement of Utah Code section 78B

- 6

- 121(3). He challenges that requirement as a violation of due process

— a ch allenge that i ncludes both the procedural and substantive branches of that co nstitutional doctrine.

A. Procedural Due Process

¶114 The majority baldly states that Mr. Bolden‘s due process claim ―sounds only in substantive due process

. ‖ 89 I respectfully disagree. Mr. Bolden has squarely challenged the statute under the Due Process Clause, which contains both procedural and sub stantive elements. The majority itself claims that the ―right to due process is principally about process

— proced ure, not substance.‖ 90 However, despite this view, and despite the majority‘s professed suspicion of the very notion of substantive due process, 91 the m ajority is nevertheless unwilling to evaluate Mr. Bolden‘s claim through the lens of fair process.

¶115 ―A due process right of access to the courts exists when fundamental interests are present and the State has exclusive co ntrol over the adjustment of [the] legal relationships involved.‖ 92
The United States Supreme Court has held that states may not i rrationally deny people access to the courts, particularly where, as

Adoption of Baby Girl , Judge Thorne noted that the requirements of the current statute had not ―been expressly approved‖ by this court. 2010 UT App 114, ¶ 39.

89 Supra ¶ 28.

90 Supra ¶ 29.

91 See supra ¶ 30 (stating that ―the Due Process Clause is not a license for the judicial fabrication of rights that judges might pr efer , on reflection, to have been enshrined in the constitution‖ and citing Regents of Univ ersity of Mich igan v. Ewing , 474 U.S. 214, 225

– 26 ( 1985) , for the proposition that ―[a]lthough the Court regularly proceeds on the assumption that the D ue P rocess C lause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history‖ (internal quotation marks omitted)).

92 Logan v. Zimmerman Brush Co. , 455 U.S. 422, 430 n.5 (1982).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

69 here, ―resort to the judicial process‖ is, ―in a realistic sense,‖ inv oluntary. 93 In Logan v. Zimmerman Brush Co

. , the Court explained
that ― [ t ] he State may erect reasonable procedural requirements for triggering the right to an adjudication, be they statutes of limit ations, or, in an appropriate case, filing fees,‖ but nevertheless
―what the Fourteenth Amendment does require , however, is an opportunity . . . granted at a meaningful time and in a meaningful

manner , for [a] hearing appropriate to the nature of the case.‖ 94
This is because ―courts, even in aid of their own valid processes,‖ are limited by the Due Process Clause in their ability to ―dismiss an action without affording a party the opportunity for a hearing
on the merits of his cause.‖ 95 ―[H]aving made access to the courts an entitlement or a necessity, the State may not deprive someone
of that access unless the balance of . . . interests favo rs the go vernment scheme.‖ 96 Moreover, as the Court explicitly held in M.L.B. v. S.L.J.

, ―decrees forever terminating parental rights‖ fall in the ―category of cases in which the State may not bolt the door to equal justice.‖ 97

¶116 While it is true that Mr. Bol den frames his argument in terms of substantive due process, he has squarely challenged the
statute under the Due Process C lause, and this court has said that

93 Boddie v. Conn ecticut , 401 U.S. 371, 376

– 77 (1971) (holding
that it was unconstitutional under the D ue P rocess C lause to deny indigent individuals access to the courts because of their inability to pay a filing fee); M.L.B. v. S.L.J. , 51 9 U.S. 102, 1 0 7 (1996) (decla ring unconstitutional a state requirement that parents pay a fee for preparation of the trial record i n order to appeal a termination of custody) ; Logan , 455 U.S. at 437

.

94 455 U.S. at 437 (alterations in original) (citation s omitted) (i nternal quotation marks omitted); see also id. at 430 n.5; M.L.B , 519 U.S. at 120; Wilson v. Iseminger , 185 U.S. 55, 62

– 6 3 (1902) (― In all such cases the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this st atute is, under all the circumstances, reasonable .‖) ; Burford v. State

, 845 S.W.2d 204, 208 (Tenn. 1992)

.

95 Logan , 425 U.S. at 429.

96 Id. at 430 n.5.

97 519 U.S. at 124 (internal quotation marks omitted)

.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

70 it will be ―unwilling to disregard controlling authority that bears upon the ultimate resolution of a case solely because the parties
did not raise it below.‖ 98 The majority claim s that no authority

exists that ―yields a judicial prerogative to second

- guess the wi sdom of state law standards . . . under the guise of procedural due process.‖ 99 But on th e contrary, if the legislature has violated the constitution, such ―second

- guessing‖ is this court‘s raison d‘être. Moreover, evaluating a properly presented constitutional cha llenge to a given law is in no way an exercise of ―free

- wheeling a uthority‖ 100

— it is a proper exercise of our actual authority. 101

98 Patterson v. Patterson , 2011 UT 68, ¶ 1 8 , 266 P.3d 828.

99 Supra ¶ 23 n. 9

.

100 Supra ¶ 23 n. 9.

101 See

, e.g. , Burford , 845 S.W.2d at 208 (striking down a statute of limitations as depriving plaintiff of a ―reasonable opportunity‖ to have his claim heard and holding that ―before a state may te rminate a claim for failure to comply with procedural requirements . . . due process requires that potential litigants be pr ovided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner‖); see also Logan , 455 U.S. at 426, 428; Ky. Union Co. v. Kentucky , 219 U.S. 140, 156

– 57 (1911) (―A time not unreasonably short for the beginning of action s may be fixed by the legislature, having in view particular conditions without violating the due process clause.‖(emphasis added)); Wilson , 185 U.S. at 62 (― [A] ll statutes of limitation must proceed on the idea that the pa rty has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to exti nguish rights arbitra rily, whatever might be the purport of its pr ovisions.‖); Terry v. Anderson , 95 U.S. 628, 632

– 33 (1877) (―[S]tatutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action b efore th e bar takes effect.‖); Fields v. Legacy Health Sys. , 413 F.3d 943,

956

– 57 (9th Cir. 2005) (analyzing a procedural due process cha llenge to a statute of limitations and rejecting it because the statute was not ―arbitrary [or] irrational‖ and noting that ―[c ]ourts will generally uphold a statute of limitations against a due process cha l lenge as long as the plaintiff is accorded a reasonable time,Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

71 When presented with a constitutional challenge, it is our job to evaluate whether the legislature has overstepped its constitutional
bounds. 102 That is what Mr. Bolden has asked us to do here, and the majority abrogates its judicial duty by refusing to fully a ddress his constitutional claim.

¶117 Procedural due process issues arise when an individual is ―claiming a right to a fair process in connection with [his] suffe ring a deprivation of life, liberty, or property .‖ 103 The fundame ntal requirement of due process is the opportunity to be heard ―at a meaningful time and in a meaningful manner.‖ 104 It is well esta blished that there is a ―requirement of fair procedure before men are denied or deprived of rights.‖ 105 As J ustice Frankfurter el o-

under all the circumstances, to bring suit before the bar takes e ffect‖ (emphasis added)); People v. Germany , 674 P.2d 345, 350, 353 (Colo. 1983) (holding that statute creat ing an absolute time bar to collateral attacks by defendants on criminal convictions violated due process of law under the United States and Colorado Const itutions because it was not reasonable and did not provide a ―meaningful opportunity‖ for the litigant to be heard).

102 Marbury v. Madison , 5 U.S. 137, 177 (1803) (― It is emphatica lly the province and duty of the judicial department to say what
the law is

. ‖).

103 E RWIN C HEMERINSKY , C ONSTITUTIONAL L AW : P RINCIPLES AND
P OLICIES 579 (3d ed. 2006); see also Mathews v. Eldridge , 424 U.S. 319, 332 (1976) (―Procedural due process imposes constraints on governmental decisions which deprive individuals of  ̳liberty‘ or  ̳property‘ interests

. . . . ‖); Mullane v. Cent

. Hanover Bank & Trust

Co. , 339 U.S. 306, 313 (1950) (―Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that d eprivation of life, liberty, or property by adjudication be proceeded by notice and opportunity for hearing appropriate to the nature of the case.‖).

104 Mathews , 424 U.S. at 333 (internal quotation marks omitted).

105 Joint Anti

- Fascist Refugee Comm. v. McGrath , 341 U.S. 123, 165 (1951) (Frankfurter , J., concurring); see also Lassiter v. Dep’t of Soc

. Servs. , 452 U.S. 18, 33 (1981) (―In its Fourteenth Amendment, our Constitution imposes on the States the standards necessary to e n-In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

72 quently stated in 1951, ―[t]he heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice
fairness.‖ 106

¶118 Utah has recognized the importance of due process since its founding. 107 Utah‘s Due Process Clause provides a gua rantee ―that a party shall have his day in court.‖ 108 Due process of law ―hears before it condemns, proceeds upon inquiry, and ren ders judgment only after trial.‖ 109

¶119 Due process is ―flexible,‖ and requires analysis of the ―given situation‖ in order to ensure that individuals facing depr ivation are afforded procedures that comport with fundamental
fairness. 110 ―Applying the Due Process Clause is therefore an u n-

sure that judicial proceedings are fundamentally fair.‖); Nelson v. City of Orem , 2013 UT 53, ¶ 28, 309 P.3d 237; In re Worthen , 926 P.2d 853, 877 (Utah 1996) (―[T]he demands of due process rest on the concept of basic fairness of procedure and demand a proc edure appropriate to the case and just to the parties involved.‖ (i nt ernal quotation marks omitted)).

106 McGrath , 341 U.S. at 17 0

– 71 (Frankfurter, J., concurring) (―The validity and moral authority of a conclusion largely depend on the mode by which it was reached.‖).

107 See U TAH C ONST

. art. I, § 7 (―No person shall be depriv ed of life, liberty or property, without due process of law.‖) ; s ee also

P ROCEEDINGS & D EBATES OF THE C ONVENTION A SSEMBLED TO A DOPT

A C ONSTITUTION FOR THE S TATE OF U TAH (1895), available at http://le.utah.gov/documents/conconv/utconstconv. htm.

108 Christian sen v. Harris , 163 P.2d 314, 316 (Utah 1945).

109 Id . at 316

– 317 (internal quotation marks omitted) ( e xplai ning that due process requires certain ―steps essential‖ before the state may ―deprive a person of life, or liberty‖).

110 Labrum v. Utah State Bd. of Pardons , 870 P.2d 902, 909, 911 (Utah 1993); Worthen , 926 P.2d at 876; accord Mathews , 424 U.S. at 334; see also Thurnwald v. A.E. , 2007 UT 38, ¶ 38, 163 P.3d 623 (no ting that to deprive an unwed father and his child of the possible
benefits of their relat ionship simply because the unwed fatherCite as: 2014 UT 51

N EHRING , A.C.J., dissenting

73 certain en terprise‖ in which the court ―must discover what  ̳fu ndamental fairness‘ consists of in a particular situation.‖ 111 But the overarching principle is that due process ―expresses the requir ement of fundamental fairness.‖ 112

¶120 When deciding whether a certain proc edure has been fundamentally fair in accordance with the constitutional guara ntee of due process, we begin by determining what private interest has been ―affected by governmental action.‖ 113 This is because

― [ t ] he extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be  ̳co ndemned to suffer grievous loss.‘‖ 114 Indeed, the Supreme Court has long held that ―the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any . . . decisionmaking process.‖ 115

¶121 According to the majority, Mr. Bolden could not raise a procedural due process claim where he failed to file the affidavit as a ―result of his own procedural misstep. ‖ 116 But Mr. Bolden challenges the constitutionality of that very procedure . To di smiss Mr. Bolden‘s constitutional challenge to section 78B

- 6

- 121(3)(b) by reasoning that Mr. Bolden sh ould have complied with the statute he challenges is an excellent example of circul ar reasoning. 117 I agree with the majority that t he State ― accords due process when it terminates a claim for failure to comply with a

failed to file a notice on time ― [ flies ] in the face of fundamental fai rness and due process‖(alteration in original) (emphasis added)).

111 Lassiter , 452 U.S. at 24

– 25.

112 Id . at 24 (internal quotation marks omitted).

113 Goldberg v. Kelly , 397 U.S. 254, 263 (1970) (internal quotation marks omitted).

114 Id. at 262

– 63 (citation omitted).

115 Mathews , 424 U.S. at 341.

116 Supra ¶¶ 6, 28 n.1 2 ( claiming that Mr. Bolden is ― in

. . . no position to complain that his own failure amo unted to a violation of procedural due process ‖).

117 Supra ¶ ¶ 6, 28 n.12

.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

74 reasonable procedural or evidentiary rule.‖ 118 But the majority fails to recognize that the given procedural requirement mu st be
reasonable , and the affidavit requirement is not. D ue process is not necessarily satisfied because a person receives some variety of n otice and some opportunity , however minimal, and however arb itrary, for a hearing. Instead, due process ―calls for such proc edural protections as the particular situation demands.‖ 119 This court has held that the essential requirements of due process i nclude ―an inquiry into the merits of the question‖ and a ―fair o pportu nity to submit evidence‖ at one‘s hearing. 120 Mr. Bolden r eceived neither.

¶122 The loss of one‘s children is rig htly viewed as one of the
most ― grievous‖ 121 losses a person can suffer. It is ―plain beyond the need for multiple citation that a natural parent‘s de sire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.‖ 122 Despite the majority‘s dismissive stance toward the right of an unmarried biological father to raise his child, 123 a d esire to parent and a fundamental interest in parenting one‘s child does not turn on whether a person is male or female, unmarried
or wed.

¶123 The United States Supreme Court held in Lehr v. Rober tson that an unwed father who ―demonstrates a fu ll commitment to the responsibilities of parenthood by  ̳com[ing] forward to parti cipate in the rearing of his child‘‖ acquires ―substantial protection

118 Supra ¶ 28 n.12 (citing Logan , 455 U.S. at 437 ).

119 Mathews , 424 U.S. at 334 (internal quotation marks omitted).

120 Christiansen , 163 P.2d at 317.

121 Santosky v. Kramer , 455 U.S. 745, 758 (1982).

122 Id

. at 758

– 59 (internal quotation marks omitted).

123 See supra ¶ 55 n.2 0 (―A general tradition of respect for p arental rights comes nowhere close to establishing a fundamental right for unwed fathers to unfettered control of their offspri ng

. ‖) ;
supra ¶ 60 (dismissing Mr. Bolden‘s ―insist[ence]‖ that his interest is ―more than a mere biological connection‖ as having ―no pri ncipled basis‖).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

75 under the d ue p rocess c lause. ‖ 124 Because unwed fathers are ―not automatically identified by virtue of the ir role in the process of birth,‖ 125 it is true that ―the mere existence of a biological link‖ alone does not merit full constitutional protection. 126 Yet, an u nwed father who has ―merely‖ a biological link to a given infant
still benefits from constitutional protection. Even if a father has failed to or has not yet demonstrated a ―full commitment to the responsibilities of parenthood,‖ under the Due Process Clause, a state must still adequately protect an unwed father‘s opportunity to form a parental relatio nship. 127 Of course, in Lehr , the child in question was over two years old and the father had done nothing to develop a relationship with her. 128 Thus, the question of whether the father had made a commitment to parent her was
much easier to answer in the ne gative . The situation is quite di fferent where a days

- old infant is concerned, as in this case. When a child has just been born, no one has a substantial ―relationship‖ with that child yet. Here, Mr. Bolden tried to ensure he would have a relationship with his infant daughter both before she was born and in the days immediately after her birth. Unlike in Lehr
and Quilloin v. Walcott , this is a case in which the unwed father has at all times sought cus tody of his child. 129 Accordingly, our

124 463 U.S. 248, 261 (1983) (alteration in original) (citation omitted). I would hold that Mr. Bolden demonstrated a full commitment to his parental responsibilities and was thus entitled to substantive due process protection, see infra Part II.B , but even if he did not, Mr. Bolden‘s procedural due process rights as an
unwed father were also violated.

125 We lls v. Children’s Aid Soc’y of Utah , 681 P.2d 199, 203 (Utah 1984).

126 Lehr , 463 U.S. at 261. This court has characterized the u nwed father‘s right to parent his child as ―provisional.‖ R.C.S. v. A.O.L. ( In re Baby Girl T. ) , 2012 UT 78, ¶ 11, 298 P.3d 125 1.

127 Lehr , 463 U.S. at 26 1

– 63.

128 Id. at 249

– 50.

129 434 U.S. 246, 255 (1978) (holding that natural father ‘ s rights
under the Due P ro cess C lause were not violated by application of
the ―best interests of the child‖ standard where natural father had not petitioned for ― legitimation ‖ at any time in an eleven

- year p e-In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

76 analysis of the fundamental fairness of the procedures afforded
Mr. Bolden should be different.

¶124 The procedures in place in Utah Code section 78B

- 6

- 121(3) determine whether an unwed father has successfully a sserted his ―inchoate‖ parental right. 130 Utah Code section 78B

- 6

- 121(3) thus critically affects that father‘s ―protected liberty interest in the opportunity to preserve a relationship with his child.‖ 131 Under our caselaw, while unwed fathers may not have a ―full

blown ‖ parental interest in their newborn children, they neverth eless have a fundamental interest in their ability and opportunity to assert full parental status. 132

¶125 In this case, Mr. Bolden sought to assert his opportunity interest in raising his biological chi ld. This right is a remarkably important one, and is inextricably tied with the fundamental right to rear one‘s own children. The right to a relationship with one‘s children is one of the most precious rights known to humankind
and thus individuals facin g the loss of this right deserve ample, vigorous procedural protection, 133 not a statutory labyrinth.

Mr. Bolden was deprived of a relationship with his biological child based on a technicality

— he received bad advice from his

riod between the child‘s birth and the filing of an adoption pet itio n)

.

130 In r e Baby Girl T. , 2012 UT 78, ¶ 18.

131 Id. ¶ 19 n.6; accord Thurnwald , 2007 UT 38, ¶ 28.

132 In re Baby Girl T. , 2012 UT 78, ¶ 18; Thurnwald , 2007 UT 38, ¶ 28 (―[A]n unwed father‘s opportunity interest in developing a relationship with his newborn [is] a  ̳provi sional right‘ that is itself protected by the due process clause of the Utah Constitution.‖);

see also Lehr

, 463 U.S. at 262; Santosky , 455 U.S. at 759 (―A parent‘s interest in the accuracy and justice of the decision to terminate his or her parental statu s‖ is a ―commanding one.‖).

133 See Stanley v. Ill inois , 405 U.S. 645, 651 (1972) (―It is plain

that the interest of a parent in the companionship, care, custody,
and management of his or her children  ̳come(s) to this court
with a momentum for respect lackin g when appeal is made

to liberties which derive merely from shifting economic arrang ements. ‘ ‖ (alteration in original)).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

77 lawyer and failed to submit an affidavit, though he had already submitted numerous other documents and complied with our u niquely complex adoption statute in every other way.

¶126 The majority dismisses Mr. Bolden‘s due process co ncerns as posing the risk of leading this court to ―a series o f line

drawing problems.‖ 134 Even if this were true, such a rationale cannot justify perpetuating a statute that is fundamentally unfair as applied to Mr. Bolden. 135 By r efusing to robustly address

Mr. Bolden‘s constitutional challenge, the majority upholds a st atutory regime that was created to reduce unmarried biological f athers ‘ rights to the barest minimums. 136 The majority simply di smisses Mr. Bolden‘s procedural due process claim. It is not clear at what point, if any, the majority would agree that a st atute‘s strict requirements become so onerous and arbitrary

— so fund amentally unfair

— that they violate procedural due process. I b elieve that the affidavit requirement, as applied to Mr. Bolden, is over the line and deprived him of fair process.

¶127 Because an unmarried father‘s liberty interest in asser ting his parental status is so strong, I would hold that, as applied

to Mr. Bolden, the affidavit requirement was fundamentally u nfair. 137 The application of the affidavit requirement here deprived

134 Supra ¶ 60.

135 See Stanley , 405 U.S. at 656

– 57 (―Procedure by presumption is always cheaper and easier than individualized determinati on. But when, as here, the procedure forecloses the determinative i ssues [,] . . . when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child.‖ ).

136 A statutory regime, indeed, that gleefully set out to ―test the bounds of Constitutional protection for

. . . biological fathers.‖ Brent J. Clayton, Note, A Day Late & A Dollar Short: Should Utah’s
Unmarried Dads Get One More Chance to Claim Their Newborns?

, 10 J.L. & F AM

. S TUD

. 249, 260 (2007) ( quoting sponsoring Senator Charles H. Stewart‘s 1994 drafting instructions for the Utah Ado ption Act). It has certainly succeeded on that account.

137 Lassiter , 452 U.S. at 24

– 25 (―[T]he phrase [due process] e xpresses the requirement of  ̳fundamental fairness,‘ a requirement whose meaning can be as opaque as its importance is lofty. A p-In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

78 Mr. Bolden, wh o complied with section 78B

- 6

- 121(3) in every ot her way, of his right to a meaningful hearing 138 before he lost the opportunity to be a father to his son. It was thus fundamentally unfair, and under these circumstances I cannot agree that

Mr. Bolden receive d the protection of the United States and Utah Constitutions‘ guarantee of due process of the law.

¶128 Accordingly, I would hold that Mr. Bolden was denied adequate procedural due process and that his consent to the ado ption was required.

B. Substantive Due P rocess
¶129 Mr. Bolden claims that his interest in parenting his bi ological child is a fundamental right and as such deserves prote ction under the Due Process Clause. The majority mischaracterizes Mr. Bolden‘s claim, stating that he has asserted the ―right to pe rfect his parental rights on something less than the grounds pr escribed by the legislature‖ and ―a perfected right in unmarried biological fathers arising upon their mere filing of a paternity
suit.‖ 139 This is not the right that Mr. Bolden has asserted. This misstatement cannot be traced to anything contained in

Mr. Bolden‘s briefs or oral argument. Instead, Mr. Bolden expl ici t ly stated that the right he is asserting for protection under the Due Process Clause is ―an unwed father‘s provisional right to raise his newborn.‖ And we have clearly announced the proper framework for such a challenge: ―the proponent of legislation i nfringing parental rights must show (1) a compelling state interest

plying the Due Process Clause is therefore an uncertain enterprise
which must discover what  ̳fundamental fairness‘ consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake.‖).

138 Worthen , 926 P.2d at 876 (― [A] n opportunity to be heard in a meaningful way [is] at the very heart of procedural fair ness .‖ (i nternal quotation marks omitted) ); see also id. at 876 & n.14 (―e mphasiz[ing]‖ that the opportunity to be heard in a meaningful way is a ―minimum requirement [] ‖ and noting that due process ―calls for the procedural protections that the given situa tion demands‖ (internal quotation marks omitted)).

139 Supra ¶¶ 59, 61.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

79 in the result to be achieved and (2) that the means adopted ar e narrowly tailored to achieve the basic statutory purpose.‖ 140

¶130 The majority dismisses Mr. Bolden‘s clear invocation of his parental right as ―fram[ed] at too

- high a level of generality‖ and, even more strangely, claims that his assertion of a so

- called ―ge neric interest in parenthood‖ is not ―precise‖ enough. 141 This position cannot be squared with Supreme Court precedent, which has long recognized that the private interest of a father in the cu stody of his children is both ―cognizable and substantial.‖ 142

Mr

. Bolden is not required to claim any more precise an interest than the fundamental, if provisional, right to raise his child, and the majority‘s requirement that he provide something more a ppears to avoid the issue. First

, the court claims that Mr. Bolde n did not and cannot raise a procedural due process challenge, but then it refuses to acknowledge that he has a protected substantive due process right. This rhetorical ploy gives the impression that
the court is unmotivated to engage in a robust treatmen t of the

issues.

¶131 Contrary to the plurality‘s 143 assertion that Mr. Bolden‘s substantive due process claim rests on an ―innovation[] undisci plined by any but abstract formula[],‖ 144 Mr. Bolden‘s claim rests upon ―perhaps the oldest of the fundamental liberty in terests‖ recognized by the Supreme Court 145 and a right that has been re c-

140 Wells , 681 P.2d at 206 (internal quotation marks omitted); see also Thurnwald , 2007 UT 38, ¶¶ 28

– 35.

141 Supra ¶ 59 n.2 2

.

142 Stanley , 405 U.S. at 652; Lehr, 463 U.S. at 262

– 63 (discussi ng an unwed father‘s due process right, stemming from his inchoate parental right, to the ―opportunity to form‖ a full parental rel ationship with his child)

.

143 Because Judge Orme concurred in the judgment and did not join Part II.A.2.c or Part II.A.3 of Ju stice Lee‘s opinion, throughout this section I will refer alternatively to either the ―plurality‖ or the ―majority‖ opinion, depending on whether the section was or was not joined by Judge Orme.

144 Supra ¶ 59

.

145 Troxel v. Granville , 530 U.S. 57, 65 (2000).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

80 ognized by this court. 146 The plurality fails to appreciate that our

1982 case Wells v. Children’s Aid Society of Utah explicitly reco gnized an unwed father‘s fundamental, ―provisional r ight‖ to raise
his children and held that a statute that interferes with such a right is subject to strict scrutiny. 147 There, we stated very clearly
that under the Utah Constitution

, ―an unwed father‘s right to his r elationship with his newborn is a provis ional right . . .

. [and] [w]e measure the statutory specifications for the termination of that provisional right against the tests of compelling state interest and narrowly tailored means.‖ 148 T he plurality goes to great lengths in its attempt to explain Wells away, but it ultimately fails to co nvincingly do so. Instead of following Wells as precedent under the principle of stare decisis, the plurality instead (1) spuriously labels it ―dicta,‖ (2) claims that it has been effectively overruled by later

cas es, and finally (3) simply asserts that the court today would have decided the case differently

— maligning the decision as ha ving ―shaky‖ support and a ―bit too facile‖ conclusion. 149 The pl urality asserts that the Wells court relied on an ―abstract formula‖ when it deemed an unwed father‘s parental interest fundame ntal. 150 But one does not need to rely on any formula to conclude that a father has a deep, personal interest in his child, and if he steps forward at the child‘s birth, that right should not be tak en away by the government absent a compelling reason. 151

146 See, e.g.

, Thurnwald , 2007 UT 38, ¶ 33 ; Wells , 681 P.2d at 206

– 07 ; In re J.P. , 648 P.2d 1364, 1373

– 74 (Utah 1982).

147 681 P.2d at 206

– 07.

148 Id. at 206.

149 Supra ¶¶ 50, 51.

150 Supra ¶ 52.

151 Cf. Lehr , 463 U.S. at 256 (― The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. ‖); id. at 261 (―When an unwed father demonstrates a
full commitment to the responsibilities of parenthood by com[ing] forward . . . his interest in personal contact with his child acquires substantial protection under the due process clause.‖(first alter ation in original) (internal quotation marks omitted)).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

81 ¶132 Despite th is court‘s decisions in Wells

, Thurnwald

, and the bulk of United States Supreme Court authority to the co ntrary, 152 the plurality proceeds as though unmarried biological f athers have no substan tive due process rights, provisional or ot herwise. 153 Without justification, the majority describes Mr. Bo lden‘s asserted right to the custody of his biological child as a r equest that this court recognize a ―new‖ right of substantive due

process. 154 The rig ht of an unwed father to assert his parental st atus is not new, and the majority‘s approach constitutes a dramatic departure from our jurisprudence.

¶133 The majority begins its discussion with a lengthy exp osition of the United States Supreme Court‘s Lochner era. 155 This

152 Michael H. v. Geral d D. , 491 U.S. 110, 128

– 29 (1989) (Scalia, J., plurality opinion); Lehr , 463 U.S. at 261; Santosky , 455 U.S. at 746; Stanley , 405 U.S. 645 at 657

– 58

.

153 Supra ¶¶ 38

– 39, 51

– 53, 57. The plurality asserts that the S upreme Court‘s longstanding exaltation of th e fundamental interest of parents in the care, custody, and control of their children, see,
e.g. , Troxel , 530 U.S. at 65, ―comes nowhere close to establishing a

. . . fundamental right of an unwed father.‖ Supra ¶ 57 n.21 (e mphasis added). Instead, th e plurality goes on, unwed fathers have only a ―provisional right, subject to reasonable regulation.‖ Supra ¶ 57 n.21. Thus, the plurality envisions an unwed father‘s interest in his child as utterly separate and distinct from any historical right of pare nts to care for their children, and instead classifies the parental right of unwed fathers as subject to the lowest level of constitutional protection.

154 Supra ¶ 34 n.14 (explaining the court‘s view that the Lochner era cases provide a ―cautionary reminde r of the perils of over

exuberant invocations of the judicial power to recognize new fu ndamental rights‖ (emphasis added)); supra ¶ 6 (Mr. Bolden ―fails to present evidence that the right he asserts (to preserve his rights as an unwed father without filing an affidavit) is a matter deeply rooted in established history and tradition‖)

.

155 A majority of this court has disapproved of opinions that contain ―length[y]‖ writing on topics that do ―not affect the res olution‖ of the case. State v. Walker , 2011 UT 53, ¶ 21, 267 P.3d 210; see also Utah Safe to Learn

- Safe to Worship Coal. , Inc. v. State , 2004 UTIn re Adoption of J.S.

N EHRING , A.C.J. , dissenting

82 discussion has no place in the analysis. Even post

- Lochner , the United States Supreme Court and this court have consistently upheld substantive due process concerning certain non

- economic rights, including ―parents‘ inherent right and author ity to rear
their own children.‖ 156 While placing the law in ―historical co ntext‖ may be a proper academic pursuit, I believe such verbosity is best curtailed, particularly in what is already a lengthy opinion. While extended historical analysis may occasi onally be called for, it should be used sparingly and with restraint. In my view, the court should be reluctant to include dicta indicating its opinions about the history of the law. 157 The truth is, it is well established
under the law of both the United States and Utah that an unwed father‘s interest in asserting custody of his infant child or retai ning custody of his older children is ―cognizable and substa ntial.‖ 158

¶134 Moreover, though the plurality claims that there is no
―historical basis ‖ for a deeply roo ted fatherly parental right, 159 in

32, ¶ 19, 94 P.3d 217 (―The courts are not a forum for hearing ac ademic contentions . . . .‖).

156 Stanley , 405 U.S. at 651; In re J.P. , 648 P.2d 1365 , 1373 (Utah 1982) (recognizing and upholding ―parents‘ inherent right and a uthority to rear their own children‖ under a substantive due

process analysis ).

157 Compare supra ¶ 30 (―the Due Process Clause is not a license for the judicial fabrication of right s that judges might prefer, on reflection, to have been enshrined in the constitution‖)

, and supra ¶¶ 32

– 37 (explaining the ―lesson of Lochner ‖)

, with supra ¶ 31 (―That said, the principle of substantive due process is ingrained in both federal and state p recedent. So although we proceed ca utiously in this domain we cannot repudiate the substantive due process inquiry altogether.‖).

158 Stanley , 405 U.S. at 652; Wells , 681 P.2d at 202, 206

– 07.

159 Supra ¶ ¶ 59, 54

. Indeed, the majority itself unwittingly a ckno wledges this, stating that ― [t] he integrity of the family and the parents‘ inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo

- American culture, presupposed by all our social, political, and legal ins tit utions.‖ Supra ¶ 39

.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

83 fact the recognition of the parental rights of father s has a strong basis in American and English history. As this court explained in 1982, t he ―parental right

. . . is rooted . . . in nature and human i nstinct. . . . [T] he parent‘s right, as well as duty, to care for a child may be termed natural, as well as legal and moral.‖ 160 Th e histo rical importance of fathers is well captured in a Mississippi S upreme Court case from 1900:

Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his chil dren

. . . . N ature and the law ratifying nature a ssume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. 161

Or, as we stated in In re J.P.

,
Men and women in most cultures have long viewed their offspring as somehow being an extension of
themselv es, and as more than mere  ̳property.‘ The bearing and raising of children has probably brought people into contact with some sense of the Infinite, the mysteries of the universe, or Nature

— however one may express it

— more than any other human experience. Th us, it is not surprising that common law judges refer to parental interests as  ̳sacred,‘  ̳natural,‘ or  ̳fundamental‘ rights, esp e-

160 In re J.P. , 648 P.2d at 1374

– 75 (internal quotation marks omitted)

.

161 Hibbette v. Baines , 29 So. 80, 81 (Miss. 1900). While it is true that much has changed in our society‘s view of children and ma rriage since 1900, the point is that fatherhood has long been exalted and recognized as a right deserving of the utmost protection. S ocietal changes since 1900 have erased the stigma of illegitimacy and drastically increased the number of children born outside of
wedlock. Cases like H ibbette merely illustrate what should go without saying

— that fathers‘ parental rights have long been co nsidered of fundamental importance.In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

84 cially when the constitutional standard for a  ̳fu ndamental‘ right is whatever judges find when they

look to the traditions and (collective) conscience of our people to determine whether a principle is so rooted (there) . . . as to be ranked as fundame ntal.

. . . 162

¶135 It is true that, historically, out

- of

- wedlock births were relatively rare and socially inappropriate, exposing both fat her and child to social and legal stigma. In the twenty

- first century, however, cultural attitudes toward out

- of

- wedlock births have
shifted. In 201 2 , over 40 percent of births in the United States
were to unmarried women. 163 As we noted in In r e Baby Gir l T.

, ―policies predicated on the notion that unwed fathers are unive rsally uninterested in their offspring or unwilling to embrace p arenthood

— even when unwed mothers on occasion are not

— are being overtaken by stark

. . . changes in public attitudes toward marriage.‖ 164

¶136 Due to the nature of the birth process, the identity of the father of an unmarried woman‘s baby is not immediately o bvious. 165 While on that basis the United States Supreme Court and this court have held that an unmarried father‘s parental rig ht is ―provisional‖ or ―inchoate‖

— we have never held that it is no

162 648 P.2d at 1376

– 77 (alterations in original) (emphasis ad ded) (internal quotation marks omitted)

.

163 Joyce A. Martin et al., Births: Final Data for 2012

, N ATIONAL
V ITAL S TATISTICS S YSTEM , C ENTERS FOR D ISEASE C ONTROL &

P REVENTION , 2 ( Dec. 30, 2013), http://www.cdc.gov/nchs/data/ nvsr/nvsr62/nvsr62_09.pdf

.

164 2012 UT 78, ¶ 18 n.5 ; s ee also George A. Akerlof & Janet L.
Yellen

, An Analysis of Out

- Of

- Wedlock Births in the United States

, B ROOKINGS I NSTITUTE , ( Aug. 1996), http://www.brookings.edu/research/papers/1996/08/childrenf
amilies

- akerlof (stating that ―[b]efore 1970, the stigma of unwed motherhood was so gre at that few women were willing to bear children outside of marriage‖ but ―out

- of

- wedlock childbearing no longer results in social ostracism‖).

165 Nguyen v. I.N.S. , 533 U.S. 53, 62 (2001).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

85 right at all. 166 Indeed, this court has said that an unmarried f ather‘s opportunity to assert parental rights demands protection from governmental infringement through the use of strict scru t iny. 167 I would recognize the importance of an unwed father‘s provisional right by applying strict scrutiny to legislation that i nfringes upon it . The plurality denies that Mr. Bolden has any pr otected substantive due process interest in his newborn, fail s to employ strict scrutiny, and thereby abandons decades of precedent . In short, the court fails to protect the parental rights of unmarried fathers, to say nothing of the children who will grow up without ever knowing them.

¶137 The court acknowledges that o ur decision in Wells v. Children’s Aid Society of Utah ―adopted a different standard [of scrutiny] under the Utah Constitution. ‖ 168 The court explains, correctly, that ―we concluded in Wells that the proponent of legi slation infringing parental rights must show (1) a compelling state interest in the result to be achieved and (2) that the means adopted are narrowly tailored.‖ 169 D espite this, the plurality ne vertheless disregards Wells on the basis that the standard employed
there ―is in some tension with . . . subsequent cases‖ and is ―in any event . . . dicta.‖ 170 It is neither.

166 In re Baby Girl T. , 2012 UT 78, ¶ ¶ 18

– 20; Thurnwald , 2007 UT 38, ¶ 28; Wells , 681 P.2d at 206.

167 Wells , 681 P.2d at 207 (―We measure the statutory specific ations for the termination of [an unwed father ‘s] provisional right against the tests of compelling state interest and narrowly tailored means.‖); Thurnwald , 2007 UT 38 , ¶ 28

.

168 Supra ¶ 42.

169 Supra ¶ 42 (internal quotation marks omitted).

170 Supra ¶¶ 43, 47

– 48, 50. Additionally, in our 2007 case
Thurnwald v. A.E. , we cited and employed the Wells standard

. 2007 UT 38, ¶¶ 32

– 33

. There, we held that a provision of the
Ado ption Act that cut off unwed fathers‘ ability to file on holidays
and weekends was ― not necessary to achieve the state’s compelling

interests ‖ nor was it a ― narrowly tailored means of achieving those i nterests .‖ Id. ¶ 35 (emphasis added). Because we reco gnized that strict scrutiny was the proper standard there, and because the r elevant statute would not survive that scrutiny, we engaged in aIn re Adoption of J.S.

N EHRING , A.C.J. , dissenting

86 ¶138 The plurality explains that it would overrule Wells 171 in part because it claims that two later cases, In re Adoption of T.B.
and In re Baby Girl T

. , control as the ―mo st recent pronou nc ements‖ on the issue of the standard of scrutiny. 172 But the plural ity fails to note that there is an obvious reason that the Wells

Thurnwald line of cases was not used in In re Adoption of T.B. and In re Baby Girl T

. — it is because the putative father in those cases did not bring a claim under the Utah Constitution

. 173 This omission is glaring and deeply undercuts the plurality‘s justification for pr oceeding as though Wells and Thurnwald were overrid d en. 174 It is
true tha t In re Baby Girl T

. , the court states that ―due process r e-

constitutional avoidance analysis and instead read into the statute a caveat that a father‘s rights could not be cu t off simply because
the birth occurred on a weekend. Thurnwald , thus, was a case where this court emphasized that the Wells standard applied, even if it was ultimately not needed on the basis of constitutional
avoidance.

171 Because Judge Orme has remained silent on these issues and has provided no opinion on the proper standard of scrutiny or the nature of Mr. Bolden‘s asserted right, the court today issues no holding concerning the level of scrutiny that should be applied to Mr. Bolden‘s substantive due p rocess claim. A majority of the
court believes that the Wells standard is ―in some tension‖ with later cases, supra ¶ 43, but without a third vote, the court is unable to provide a solution to the asserted conflict. Supra ¶¶ 46

– 57 (Lee, J., plurality opi nion). As a result, the status of the law in this area appears to be unsettled.

172 Supra ¶ 49; R.C.S. v. A.O.L. ( In re Baby Girl T .) , 2012 UT 78

, 298 P.3d 1251 ; T.M. v. B.B. ( In re Adoption of T.B. ) , 2010 UT 42 , 232
P.3d 1026

. The plurality would also a brogate Thurnwald , which approved of and used the Wells strict

- scrutiny standard as part of

a constitutional avoidance analysis

. 2007 UT 38, ¶¶ 28, 32

– 33, 35.

173 In re Adoption of T.B. , 2010 UT 42, ¶¶ 16, 17 (citing Mathews

, 424 U.S. at 339

– 50); see also id. ¶ 24 (―[T]he putative father asserts that [the adoption code‘s] application to him is unconstitutional, both under the Due Process and Equal Protection clauses of the United States Constitution.‖).

174 Supra ¶ 50

.Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

87 quires only that an unwed father have  ̳a meaningful chance to preserve his opportunity to develop a relationship with his child,‘‖ but this statement was made in the context of a procedural due pro cess analysis 175

— not a substantive due process analysis as

in Wells and Thurnwald . Moreover, in Baby Girl T ., the father ne ver ―expressly articulated‖ his constitutional challenge and failed to even use the words ―due process‖ in bringing his claim 176

— thus, i n Baby Girl T

. , the court was not addressing a claim brought squarely under the Utah Constitution‘s Due Process Clause. Sim ilarly, In re Adoption of T.B. involved a constitutional challenge brought solely under the United States Constitution, not the Utah

Constitution. 177

¶139 The plurality also claims that ―in any event, the Wells standard of scrutiny was unnecessary to the outcome in that case, and may thus be viewed as over

- enthusiastic dicta.‖ 178 I disagree. A court‘s reasoning is not ―dicta‖ just because the court ―could easily have reached the same conclusion‖ by using a different

standard. 179 A court‘s holding stems from the reasoning it actua lly used, and such reasoning cannot be dismissed as mere ―dicta.‖ The majority‘s concept of obiter dictum flouts the basic meaning
of that term. Obiter dictum is a ― judicial comment made while delivering a judicial opinion, but one that is unnecessary to the
decision.‖ 180 In other words, it is an ― ̳extrajudicial expression[] of legal opinion‘‖ given by way of ― ̳illustration, argument, analogy,

175 In re Baby Girl T

. , 2012 UT 78, ¶¶ 11, 16 , 20 (―[Unwed f ather‘s] private interest therefore is in the opportunity to develop a substantial relationship with [his infant]. The Act must give him a meaningful and adequate procedure to protect this interest.‖).

176 Id. ¶ ¶ 33 , 36 (unwed father ―repe atedly made due process arguments, although they were not labeled as such‖)

.

177 2010 UT 42, ¶¶ 16, 24.

178 Supra ¶ 50

.

179 Supra ¶ 50.

180 B LACK ‘ S L AW D ICTIONARY 1177 (9th ed. 2007).In re Adoption of J.S.

N EHRING , A.C.J. , dissenting

88 or suggestion.‘‖ 181 The rule of law used by a court as the basis of its legal conclusion is fundamentally and square ly not obiter di ctum. That was the role of the strict scrutiny standard in Wells . In
Wells , the court explicitly measured a statute‘s infringement of an unwed father‘s rights against ―the tests of compelling state inte rest and narrowly tailored means,‖ a nd found that the statute passed strict scrutiny. 182 Thus, very simply, the court applied strict scrutiny to reach its conclusion, and that application was not ―unnecessary to the outcome .‖ 183 Under the plurality‘s approach,
if a court could have reached an outcome in a different way, the court‘s actual analysis can later be dismissed wholesale as ―di cta.‖ 184

¶140 Wells established the standard of scrutiny for a legisl ative infringement of parental rights

— and more specifically, the parental rights of unwed fathers

— under the Utah Constitution, 185
and the plurality‘s reasons for abrogating it fall flat. 186 I agree that litigants in Utah should be ―entitled to rely on our explication of
the law as definitive.‖ 187 But today the court has, at best, cast

181 Id. (citing William M. Lile et al., B RIEF M AKING AND THE U SE

OF L AW B OOKS 304 (3d ed. 1914)). For an example of this, see the majority‘s discussion of Lochner

, supra ¶¶ 32

– 36

.

182 Wells , 681 P.2d at 206

– 07.

183 Supra ¶ 50.

184 Supra ¶ 50

.

185 Supra ¶ 42 (acknowledging that ―[o]ur Wells decision adopted . . . a standard of heightened scrutiny . . . under the Utah Constitution‖).

186 See, e.g.

, Vorher v. Henriod , 2013 UT 10, ¶ 13, 297 P.3d 614 (―Under the doctrine of stare decisis, a party asking us to overturn prior precedent has a substantial burden of persuasion. . . . [L]ong standing precedent should not be overruled except for the most compelling reasons.‖ (second alteration in original) (internal qu otation marks omitted)).

187 Supra ¶ 4 9 & n.17

. Contra supra ¶¶ 51

– 52 (asserting that the analysis in Wells

, 681 P.2d at 206

– 07, was ―shak y‖ and ―should have‖ been done differently).Cite as: 2014 UT 51

N EHRING , A.C.J., dissenting

89 doubt upon the preced ential value of Wells

, 188 a case that has been the law in Utah for thirty years

. ¶141 In sum, I would evaluate Mr. Bolden‘s claim using strict scrutiny and would find that section 78B

- 6

- 121(3)(b) fails to satisfy that demanding standard because it is not narrowl y tailored, nor does it achieve a compelling government interest. T he affidavit requirement violates due process because (1) it is fundamentally unfair to irrevocably foreclose an unwed father‘s parental rights without affording him robust procedural prot ection ; (2) the State does not have a compelling interest in legislating based on gender stereotypes, nor is the statute narrowly tailored to any compelling
interest; and (3) other requirements

— which Mr. Bolden sati sfied

— suffice to ensure that the unwed fa ther has accepted respo nsibility and stepped forward as a parent as required by Lehr

. 189

CONCLUSION

¶142 The court‘s decision today represents an indefensible departure from this court‘s and the United States Supreme Court‘s constitutional jurisprudence. I would first and foremost
hold that Utah Code section 78B

- 6

- 121(3)(b) is a violation of Equal
Protection under both the Utah Constitution and the United States Constitution. In my view, it impermissibly discriminates on the basis of outdated, offensive, and harmful gender stereotypes. Second, by ref using to engage in a procedural due process anal ysis, the majority unfairly sidesteps this important issue without an adequate justification for doing so . Finally, the court di s torts and essentially abandons the time

- honored constitutional law of sub stant ive due process by holding that an u n wed father‘s right to a ssert himself as the parent of his child is d e serving of the lo w est level of protection. The Utah and United States Constitutions strictly protect the fundamental right to parent one‘s own chil dr en; a right that is inextricably linked to the unwed father‘s oppo rtunity to step forward and assume his p a rental role. I would hold
that section 78B

- 6

- 121(3)(b) is fundamentally unfair as applied to Mr. Bolden and deprived him of a me a ningful chance for a hea ring before he lost his rights as a father. Alternatively, I would

188 Wells , 681 P.2d 199.

189 Lehr , 463 U.S. at 262.In re Adoption of J.S.

J USTICE P ARRISH , dissenting

90 hold that section 78B

- 6

- 121(3)(b) vi olated Mr. Bolden‘s substantive due process rights because it infringed his opportun i ty interest in asserting the fundamental right to pa r ent his ne w born son and was not narrowly tailored to serve a compelling government i nterest

.

J USTICE P ARRISH , dissenting:

¶143 I agree with Justice Nehring that the affidavit requir ement of the Utah Adoption Act (the Act), Utah Code section 78B

6

- 121(3)(b), unconstitutionally discriminates against unwed f athers on the basis of their gender. But I find the tenor of his di ssent regrettable. In my view, the constitutional validity of the aff idavit requirement presents a close issue on which reasonable
minds can legitimately disagree. I therefore write separately on the narrow issue of equal protection. I would strike the affidavit requirement as violative of the Equal Protec tion Clause of the
United States Constitution. As a result, I would not address

Mr. Bo lden‘s claim that the affidavit requirement violates his right to due process or the uniform operation of laws.

¶144 As both the majority opinion and Justice Nehring‘s di ssent explain, the affidavit requirement discriminates on the basis
of sex. 1 In order for an unwed father to perfect his parental rights,
he must

file[] with the court .

. . a sworn affidavit:

(i) stating that he is fully able and willing to have full custody of the child; (ii) setting forth his plans for care of the child;
and (iii) agreeing to a court order of child support and the payment of expenses incurred in conne ction with the mother‘s pregnancy and the child‘s
birth. 2

An unwed mother is not required to file a similar affidavit; her parental rights are perfected by default.

1 See supra ¶ 72; supra ¶ 87.

2 U TAH C ODE § 78B

- 6

- 121(3)(b).Cite as: 2014 UT 51

J USTICE P ARRISH , dissenting

91 ¶ 145 This is facially disparate treatment on the basis of sex. Accordingly, to pass muster under the Equal Protection Clause of the United States Constitution, 3 the affidavit requirement must withstand intermediate scrutiny. 4 To satisfy this standard, the proponent of the requirement, in this case the Does, must demo nstrate that the disparate treatment of an unwed mother and an unwed father is ―substantially related‖ to achieving an important governmental objective. 5 Phrased another way, ―[t]he fit between the means and the important end [must be]  ̳exceedingly persu asive.‘‖ 6 In my view, the Does have not satisfied their burden.

I. INTERMEDIATE SCRUTINY

¶146 The majority correctly recognizes that legislative classif ications that discriminate on the basis of gender are evaluated u nder a standard of intermediate scrutiny. In my view, however, the majority unfairly distinguishes controlling precedent from the United States Supreme Court by implying that there are actually

two categories of intermediate scrutiny and then evaluating the
affidavit requirement under the less stringent standard.

¶ 147 The majority would apply a higher level of scrutiny to those cases of ― ̳official action that close[] a door or den[y] oppo rtunity to women (or men).‘‖ 7 In cases of this nature, the majority says that the standard is ―difficult‖ to satisfy because it requires ―an  ̳exceedingly persuasive‘ justification.‖ 8 The majority says the standard is ―easier to satisfy‖ in all other ―less imposing‖ cases of
discrimination on the basis of sex. 9 In particular, when ―differe ntial treatment of men and women stems initially

. . . from a straightforward matter of biology,‖ the majority would require

3 U.S. C ONST

. amend. XIV, § 1.

4 Nguyen v. I.N.S. , 533 U.S. 53, 60 (2001).

5 Id.

6 Id. at 70.

7 Supra ¶ 70 (quoting United States v. Virginia , 518 U.S. 515, 532 (1996)).

8 Supra ¶ 70 (quoting Virginia , 518 U.S. at 532).

9 Supra ¶ 70

.In re Adoption of J.S.

J USTICE P ARRISH , dissenting

92 only a ―substantial fit‖ between the legislative objecti ve and the discriminatory means at issue. 10

¶148 But the United States Supreme Court has not recognized the distinction suggested by the majority. It has articulated only one definition of intermediate scrutiny applicable in sex discrim ination cases. In fact, it has defined an ―exceedingly persuasive justification‖ as one in which the discriminatory scheme is ―su bstantially related‖ to the ends it seeks to achieve. 11 I therefore am not persuaded that the United States Supreme Court cases stri king sex

- ba sed classifications for failure to advance an exceedingly persuasive justification are distinguishable. 12 And while I a cknowledge that the United State s Supreme Court‘s precedent in this area is far from clear, it appears to me that the majority op inion‘s formulation of the lower level of intermediate scrutiny it applies is, in practice, virtually indistinguishable from the rational basis review applicable in cases that involve no discriminatory
classification.

II. THE DOES HAVE FAILED TO MEET THEIR BURDE N

OF E STABLISHING AN EXCEEDINGLY PERSUASIVE JUSTIFICATION FOR THE DISCR IMINATORY

AFFIDAVIT REQUIREMENT

¶149 In my view, application of the established standard of i ntermediate scrutiny to the affidavit requirement leads to the co nclusion that the Does hav e failed to meet their burden of establis hing that the Act‘s disparate treatment of unwed fathers and u nwed mothers is substantially related to achieving an important

10 Supra ¶ 73.

11 In Nguyen , Justice Kennedy, with Justices Rehnquist, St evens, Scalia, and Thomas joining, recognized a si ngle standard for evaluating claims of sex discrimination under the Equal Prote ction Clause, ―explain[ing] that an  ̳exceedingly persuasive justif ication‘ is established  ̳by showing at least that the classification serves important governmental objectives a nd that the discrimin atory means employed are substantially related to the achievement of those objectives.‘‖ 533 U.S. at 70 (quoting Miss. Univ. for Women v. Hogan , 458 U.S. 718, 724 (1982) (internal quotation marks omi tted)).

12 See, e.g.

, Virginia , 518 U.S. at 523

– 24; Hogan , 458 U.S. at 724.Cite as: 2014 UT 51

J USTICE P ARRISH , dissenting

93 governmental objective. The starting point of the analysis is to identify the objectives that the Act is intended to promote.

¶150 The Act sets forth a variety of governmental objectives. It declares that ―[i]t is the intent and desire of the Legislature that in every adoption the best interest of the child should govern.‖ 13
The Act further declares that ―the state has a compelling interest in requiring unmarried biological fathers to demonstrate co mmitment‖ to the responsibilities of parenthood. 14 While the Legi slature may prefer that we simply accept what is set out in the
―Le gislative intent and findings‖ section of the Act, 15 intermediate scrutiny requires a more searching analysis. This is particularly
true in cases such as this

, where one of the stated legislative obje ctives is itself discriminatory

— that of requiring that only unma rried biological fathers demonstrate commitment to the respons ibilities of parenthood. Therefore, while the Legislature has d efined the purpose of the Act as requiring only unmarried biolog ical fathers to demonstrate commitment to parenthood, we must ask why it has no similar objective with regard to unmarried bi ological mothers. And while the Act purports to further the broad objective of advancing the best interest of the child, we must co nfront why only biological fathers

— and not biological mo thers

— must express a future commitment to accept full custody of their biological child before they may have any say in the child‘s f uture. 16

13 U TAH C ODE § 78B

- 6

- 102(1).

14 Id. § 78B

- 6

- 102(5)(f).

15 See id. § 78B

- 6

- 102.

16 In practice, the Act defines the best interest of the child as a commitment by the biological father to ―have full custody,‖ to d evelop ―plans for care,‖ and to ―agree[] to a court order of child support and payment of [pregnancy and birth] expenses.‖
Id. § 78B

- 6

- 121(3)(b). And this forward

- looking commitment is required before an unwed father can have any say regarding the
future of his child, whether he intends to consent to a proposed adoption, consent to adoption by others of his choosing, place the child with a close family member, or raise the child himself. No
such forward

- looking commitment is required on the part of an

unw ed biological mother.In re Adoption of J.S.

J USTICE P ARRISH , dissenting

94 ¶151 Because we cannot allow a discriminatory legislative o bjective to justify a discriminatory legislative requi rement, we must conclude that the Act‘s objective is to secure a forward

- looking commitment by a parent to raise a child before allowing that pa rent to have any say in the child‘s future. And if that is the obje ctive, we must ask why such a forward

- looking commitment is r equired of only unwed fathers.

¶152 The majority maintains that the Act serves two purposes. First, the majority posits that it provides a mechanism of promptly identifying those who might be designated as parents. 17 Second,

it ensures t hat such persons will fulfill their parental role. 18 I a cknowledge that biological differences between men and women justify their disparate treatment with respect to the identification of unwed fathers. But I fail to see how such biological differences justify treating men and women differently when it comes to their
forward

- looking commitment to fulfill their parental role. B ecause the affidavit requirement relates only to this second obje ctive, I conclude that it fails intermediate scrutiny.

¶153 The starting point for analyzing the Act‘s disparate treatment of men and women is the legitimate difference between a mother‘s and a father‘s biology. A mother‘s biological relatio nship with her child is readily apparent; a father‘s is not. Because
of this biological fact, I believe it is entirely legitimate for the Act to provide a mechanism for prompt and reliable identification of a child‘s biological father. The Act accomplishes this by requiring an unwed biological father to ―initiate[] proceedings in a district court of Utah to establish paternity‖ and to ―file[] notice of the commencement of paternity proceedings

. . . with the state reg istrar of vital statistics.‖ 19 And because the biological mother‘s identity is obvious, while a biological father‘ s is not, the Act‘s l imitation of these requirements to biological fathers has an exce edingly persuasive fit with the statutory objective of parental ide ntification.

17 Supra ¶ 75.

18 Supra ¶ 75.

19 U TAH C ODE § 78B

- 6

- 121(3)(a), (c).Cite as: 2014 UT 51

J USTICE P ARRISH , dissenting

95 ¶154 Similarly, a mother‘s biology requires her to shoulder r esponsibility for the expenses of pregnancy and child birth; a f ather‘s biology does not. Based on this legitimate biological diffe rence, the Act provides a mechanism that is substantially related to achieving the important governmental objective of requiring each parent to pay ―a fair and reasonable amount of expenses

. . . in a ccordance with his [ or her] financial ability.‖ 20 The Act acco mplishes this by requiring unwed biological fathers to pay a fair share of such expenses. Again, I find that this requirement is ju stified by legitimate biological differences and is substantially r elated to the legislative objective that parents share the financial burden of bringing a child into the world. 21

¶155 But once a child is born and his or her parents are ident ified, I do not beli eve that biological differences between men and women justify disparate treatment of unwed mothers and unwed fathers. The majority posits that a mother‘s biology allows her to show a commitment to a child by carrying the child to term. 22
And because a fa ther‘s biology allows no similar biological m anifestation of commitment, the majority accepts the affidavit r equirement as a ―defensible

. . . attempt to put unwed parents on equal footing.‖ 23 Assuming that the legislative objective is to put unwed parent s on equal footing, I do not believe that the affidavit requirement substantially advances that objective. Indeed, the a ffidavit requirement demands a commitment from unwed fathers that goes far beyond what a mother‘s biology necessarily implies

20 Id. § 78B

- 6

- 121(3)(d).

21 There may be some concern that an unwed mother will, as a result of her biological position as a mother, be forced to raise an
unwanted ch ild and be burdened with post

- birth expenses if the biological father is allowed to refuse consent to adoption but ne vertheless does not take custody of the child or fulfill his financial responsibility. But Utah law provides a mechanism pursuant to
which a biological mother can safely relinquish her parental rights and responsibilities apart from adoption. U TAH C ODE §§ 62A

- 4a

802, 78A

- 6

- 504,

- 514.

22 Supra ¶ 78.

23 Supra ¶¶ 79

– 80.In re Adoption of J.S.

J USTICE P ARRISH , dissenting

96 about her forward

- looking commitment to raise her child. 24 While a father is required to swear ―that he is fully able and willing to have full custody of the child,‖ to ―set[] forth his plans for care of the child,‖ and to ―agree[] to a court order of child suppor t and the payment of [pregnancy and child birth] expenses,‖ no such commitment is required of unwed mothers. 25 In my view, the a ffidavit requirement provides something less than an exceedingly persuasive fit with the biological differences of commitment e xpressed through the gestation and birthing process.

¶156 By carrying her child to term, an unwed mother demo nstrates some level of commitment. But that commitment cannot necessarily be interpreted as a forward

- looking commitment to raise her child. Indeed, because the affidavit requirement is found
in the Utah Adoption Act, it will only be implicated when a bio lo gical mother has no commitment to ―have full custody of the child,‖ to develop ―plans for care of the child,‖ or to ―agree[] to a court order of child support and payment of [pregnancy and birth] expenses.‖ 26 So while a mother without any forward

-

24 The plain language of the Act supports this conclusion. I ndeed, in th e same section of the Act that asserts the State‘s co mpe l ling interest in requiring unwed fathers to demonstrate their commitment to the responsibilities of parenthood, the Act e xplains that an unwed father ―demonstrate[s] [his] commitment by providing app ropriate medical care and financial support and by establishing legal paternity.‖ U TAH C ODE § 78B

- 6

- 102(5)(f). By fulfilling subsections (3)(a) and (3)(c) (the paternity requirements) and (3)(d) (the payment

- of

- pregnancy

- expenses requirement) of

section 78B

- 6

- 121, an unwed father has satisfied the State‘s mandate that he demonstrate his commitment to the responsibil ities of parenthood. The affidavit requirement is therefore beyond what the Legislature itself has stated is necessary for an unwed
father to demonstrate his commitment.

25 Id. § 78B

- 6

- 121(3)(b).

26 Id. Further, the Legislature has recognized that some mot hers have no commitment to raise a child and has, therefore, pr ovided two mechanisms whereby a mother may relinquish her p arental rights and responsibilities. A mother ―may safely reli nquish a newborn child at a hospital

. . . and retain complete an onymity‖ without fear of investigation or prosecution. Id. § 62A

-Cite as: 2014 UT 51

J USTICE P ARRISH , dissenting

97 lookin g commitment to her child has standing, a father with an
identic al level of commitment does not

. ¶157 In my view, the fit between the Act‘s objective of secu ring a specific, forward

- looking commitment to raise a child and the affidavit requirement is simp ly too imprecise to justify the disparate treatment of unmarried biological mothers and unma rried biological fathers. While biology may demonstrate a biolog ical mother‘s commitment to bring a child into the world, it does not necessarily demonstrate a comm itment to raise her child. But the Act requires that an unwed biological father unequivocally express his forward

- looking commitment to raise his child. In my view, such a disparate advancement of the State‘s stated objective in securing parental commitm ent is not a close enough fit to wit hstand intermediate scrutiny.

CONCLUSION

¶158 Because the affidavit requirement of the Utah Adoption Act results in the disparate treatment of unwed fathers and u nwed mothers, the Does have the burden of showing that the r equirement satisfies intermediate scrutiny. In other words, they must establish that the affidavit requirement is substantially r elated to achieving an important governmental objective. 28 I do not believe that they have satisfied their burden. The affidavit r equirement goes one step too far by requiring unwed fathers, but not unwed mothers, to make forward

- looking commitments to child rearing. In so doing, the affidavit requirement tips the ba lance against the unwed father by requiring him to demon strate more than the unwed mother demonstrates by the sheer fact of her biology. I would therefore hold that the affidavit requirement of the Utah Adoption Act, Utah Code section 78B

- 6

- 121(3)(b), v iolates the Equal Protection Clause of the United States C onstit ution.

4a

- 802. Alternatively, she may voluntarily relinquish or consent

to termination of her parental rights so long as a court finds that it
is in the ―child‘s best interest.‖ Id. §§ 78A

- 6

- 504,

- 514.

28 Nguyen v. I.N.S. , 533 U.S. 53, 60 (2001).