U.S. Supreme Court

CABAN v. MOHAMMED, 441 U.S. 380 (1979)

441 U.S. 380

CABAN v. MOHAMMED ET UX.

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

77-6431.

Argued November 6, 1978

Decided April 24, 1979

Appellant and appellee Maria Mohammed lived together out of wedlock for several years in New York City, during which time two children were born. Appellant, who was identified as the father on the birth certificates, contributed to the children's support. After the couple separated, Maria took the children and married her present husband (also an appellee). During the next two years appellant frequently saw or otherwise maintained contact with the children. Appellees subsequently petitioned for adoption of the children, and appellant filed a cross-petition. The Surrogate granted appellees' petition under 111 of the New York Domestic Relations Law, which permits an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding her consent. Rejecting appellant's contention that 111 is unconstitutional, the state appellate courts affirmed on the basis of In re Malpica-Orsini, 36 N. Y. 2d 568, 331 N. E. 2d 486. In that case the New York Court of Appeals held that 111 furthered the interests of illegitimate children, for whom adoption is often the best course, reasoning that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent adoption merely by withholding his consent. Moreover, the court suggested that if the consent of the natural father were required, adoptions would be jeopardized because of his unavailability.

Held:

1. Contrary to appellees' contention, it is clear that 111 treats unmarried parents differently according to their sex. The section's consent requirement is no mere formality, since the New York courts have held that the question of whether consent is required is entirely separate from the consideration of the best interests of the child. In this very case, the Surrogate held that adoption by appellant was impressible absent Maria's consent, whereas adoption by Maria and her husband could be prevented by appellant only if he could show that such adoption would not be in the children's best interests. Pp. 387-388.

2. The sex-based distinction in 111 between unmarried mothers and unmarried fathers violates the Equal Protection Clause of the Fourteenth Amendment because it bears no substantial relation to any important state interest. Pp. 388-394.

(a) Maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, the generalization concerning parent-child relations would become less acceptable to support legislative distinctions as the child's age increased. P. 389.

(b) Unwed fathers are no more likely to oppose adoption of their children than are unwed mothers. Pp. 391-392.

(c) Even if special difficulties in locating and identifying unwed fathers at birth warranted a legislative distinction between mothers and fathers of newborns, such difficulties need not persist past infancy; and in those instances where, unlike the present case, the father has not participated in the rearing of the child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Pp. 392-393.

43 N. Y. 2d 708, 372 N. E. 2d 42, reversed.

POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, post, p. 394. STEVENS, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 401.

Robert H. Silk argued the cause and filed briefs for appellant.

Morris Schulslaper argued the cause and filed a brief for appellees.

Irwin M. Strum, Assistant Attorney General, argued the cause for the New York State Attorney General as amicus curiae urging affirmance. With him on the brief were Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Warren M. Goidel and Neil S. Solon, Assistant Attorneys General.^{Footnote *}

MR. JUSTICE POWELL delivered the opinion of the Court.

The appellant, Abdiel Caban, challenges the constitutionality of 111 of the New York Domestic Relations Law (McKinney

1977), under which two of his natural children were adopted by their natural mother and stepfather without his consent. We find the statute to be unconstitutional, as the distinction it invariably makes between the rights of unmarried mothers and the rights of unmarried fathers has not been shown to be substantially related to an important state interest.

I

Abdiel Caban and appellee Maria Mohammed lived together in New York City from September 1968 until the end of 1973. During this time Caban and Mohammed represented themselves as being husband and wife, although they never legally married. Indeed, until 1974 Caban was married to another woman, from whom he was separated. While living with the appellant, Mohammed gave birth to two children: David Andrew Caban, born July 16, 1969, and Denise Caban, born March 12, 1971. Abdiel Caban was identified as the father on each child's birth certificate, and lived with the children as their father until the end of 1973. Together with Mohammed, he contributed to the support of the family.

In December 1973, Mohammed took the two children and left the appellant to take up residence with appellee Kazin Mohammed, whom she married on January 30, 1974. For the next nine months, she took David and Denise each weekend to visit her mother, Delores Gonzales, who lived one floor above Caban. Because of his friendship with Gonzales, Caban was able to see the children each week when they came to visit their grandmother.

In September 1974, Gonzales left New York to take up residence in her native Puerto Rico. At the Mohammeds' request, the grandmother took David and Denise with her. According to appellees, they planned to join the children in Puerto Rico as soon as they had saved enough money to start a business there. During the children's stay with their grandmother, Mrs. Mohammed kept in touch with David and

Denise by mail; Caban communicated with the children through his parents, who also resided in Puerto Rico. In November 1975, he went to Puerto Rico, where Gonzales willingly surrendered the children to Caban with the understanding that they would be returned after a few days. Caban, however, returned to New York with the children. When Mrs. Mohammed learned that the children were in Caban's custody, she attempted to retrieve them with the aid of a police officer. After this attempt failed, the appellees instituted custody proceedings in the New York Family Court, which placed the children in the temporary custody of the Mohammeds and gave Caban and his new wife, Nina, visiting rights.

In January 1976, appellees filed a petition under 110 of the New York Domestic Relations Law to adopt David and Denise.[^{Footnote 1} ] In March, the Cabans cross petitioned for adoption. After the Family Court stayed the custody suit pending the outcome of the adoption proceedings, a hearing was held on the petition and cross-petition before a Law Assistant to a New York Surrogate in Kings County, N. Y. At this hearing, both the Mohammeds and the Cabans were represented by counsel and were permitted to present and cross-examine witnesses.

The Surrogate granted the Mohammeds' petition to adopt the children, thereby cutting off all of appellant's parental

rights and obligations.[^{Footnote 2} ] In his opinion, the Surrogate noted the limited right under New York law of unwed fathers in adoption proceedings: "Although a putative father's consent to such an adoption is not a legal necessity, he is entitled to an opportunity to be heard in opposition to the proposed step-father adoption." Moreover, the court stated that the appellant was foreclosed from adopting David and Denise, as the natural mother had withheld her consent. Thus, the court considered the evidence presented by the Cabans only insofar as it reflected upon the Mohammeds' qualifications as prospective parents. The Surrogate found them well qualified and granted their adoption petition.

The New York Supreme Court, Appellate Division, affirmed. It stated that appellant's constitutional challenge to 111 was foreclosed by the New York Court of Appeals' decision in In re Malpica-Orsini, 36 N. Y. 2d 568, 331 N. E. 2d 486 (1975), appeal dism'd for want of substantial federal question sub nom. Orsini v. Blasi, 423 U.S. 1042 (1976). In re David Andrew C., 56 App. Div 2d 627, 391 N. Y. S. 2d 846 (1977). The New York Court of Appeals dismissed the appeal in a

memorandum decision based on In re Malpica-Orsini, supra. In re David A. C., 43 N. Y. 2d 708, 372 N. E. 2d 42 (1977).

On appeal to this Court, appellant presses two claims. First, he argues that the distinction drawn under New York law between the adoption rights of an unwed father and those of other parents violates the Equal Protection Clause of the Fourteenth Amendment. Second, appellant contends that this Court's decision in Quilloin v. Walcott,  434 U.S. 246 (1978), recognized the due process right of natural fathers to maintain a parental relationship with their children absent a finding that they are unfit as parents.[^{Footnote 3} ]

II

Section 111 of the N. Y. Dom. Rel. Law (McKinney 1977) provides in part that

"consent to adoption shall be required as follows: . . . (b) Of the parents or surviving parent, whether adult or infant, of a child born in wedlock; [and] (c) Of the mother, whether adult or infant, of a child born out of wedlock. . . ."

The statute makes parental consent unnecessary, however, in certain cases, including those where the parent has abandoned or relinquished his or her rights in the child or has been adjudicated incompetent to care for the child.[^{Footnote 4} ] Absent one of

these circumstances, an unwed mother has the authority under New York law to block the adoption of her child simply by withholding consent. The unwed father has no similar control

over the fate of his child, even when his parental relationship is substantial - as in this case. He may prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child's adoption by the petitioning couple.

Despite the plain wording of the statute, appellees argue that unwed fathers are not treated differently under 111 from other parents. According to appellees, the consent requirement of 111 is merely a formal requirement, lacking in substance, as New York courts find consent to be unnecessary whenever the best interests of the child support the adoption. Because the best interests of the child always determine whether an adoption petition is granted in New York, appellees contend that all parents, including unwed fathers, are subject to the same standard.

Appellees' interpretation of 111 finds no support in New York case law. On the contrary, the New York Court of Appeals has stated unequivocally that the question whether consent is required is entirely separate from that of the best interests of the child.[^{Footnote 5} ] Indeed, the Surrogate's decision in the present case, affirmed by the New York Court of Appeals, was

based upon the assumption that there was a distinctive difference between the rights of Abdiel Caban, as the unwed father of David and Denise, and Maria Mohammed, as the unwed mother of the children: Adoption by Abdiel was held to be impressible in the absence of Maria's consent, whereas adoption by Maria could be prevented by Abdiel only if he could show that the Mohammeds' adoption of the children would not be in the children's best interests. Accordingly, it is clear that 111 treats unmarried parents differently according to their sex.[^{Footnote 6} ]

III

Gender-based distinctions "must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand judicial scrutiny under the Equal Protection Clause. Craig v. Boren,  429 U.S. 190, 197 (1976). See also Reed v. Reed,  404 U.S. 71 (1971). The question before us, therefore, is whether the distinction in 111 between unmarried mothers and unmarried fathers bears a substantial relation to some important state interest. Appellees assert that the distinction is justified by a fundamental difference between maternal and paternal relations - that "a natural mother, absent special circumstances, bears a closer relationship with her child . . . than a father does." Tr. of Oral Arg. 41.

Contrary to appellees' argument and to the apparent presumption underlying 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother. Appellant Caban, appellee Maria Mohammed, and their two children lived together as a natural family for several years. As members of this family, both mother and father participated in the care and support of their children.[^{Footnote 7} ] There is no reason to believe that the Caban children - aged 4 and 6 at the time of the adoption proceedings - had a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of 111 is required by any universal difference between maternal and paternal relations at every phase of a child's development.

As an alternative justification for 111, appellees argue that the distinction between unwed fathers and unwed mothers is substantially related to the State's interest in promoting the adoption of illegitimate children. Although the legislative

history of 111 is sparse,[^{Footnote 8} ] in In re Malpica-Orsini, 36 N. Y. 2d 568, 331 N. E. 2d 486 (1975), the New York Court of Appeals identified as the legislature's purpose in enacting 111 the furthering of the interests of illegitimate children, for whom adoption often is the best course.[^{Footnote 9} ] The court concluded:

"To require the consent of fathers of children born out of wedlock . . ., or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption. The cruel and undeserved out-of-wedlock stigma would continue its visitations. At the very least, the worthy process of adoption would be severely impeded." 36 N. Y. 2d, at 572, 331 N. E. 2d, at 489.

The court reasoned that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent the adoption by the mere withholding of his consent. Indeed, the court went so far as to suggest that "[m]arriages would be discouraged because of the reluctance of prospective husbands to involve themselves in a family situation

where they might only be a foster parent and could not adopt the mother's offspring." Id., at 573, 331 N. E. 2d, at 490. Finally, the court noted that if unwed fathers' consent were required before adoption could take place, in many instances the adoption would have to be delayed or eliminated altogether, because of the unavailability of the natural father.[^{Footnote 10} ]

The State's interest in providing for the well-being of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction of 111. Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends. As we repeated in Reed v. Reed, 404 U.S., at 76, such a statutory "classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia,  253 U.S. 412, 415 (1920)."

We find that the distinction in 111 between unmarried mothers and unmarried fathers, as illustrated by this case, does not bear a substantial relation to the State's interest in providing adoptive homes for its illegitimate children. It may be that, given the opportunity, some unwed fathers would prevent the adoption of their illegitimate children. This impediment to adoption usually is the result of a natural

parental interest shared by both genders alike; it is not a manifestation of any profound difference between the affection and concern of mothers and fathers for their children. Neither the State nor the appellees have argued that unwed fathers are more likely to object to the adoption of their children than are unwed mothers; nor is there any self-evident reason why as a class they would be.

The New York Court of Appeals in In re Malpica-Orsini, supra, suggested that the requiring of unmarried fathers' consent for adoption would pose a strong impediment for adoption because often it is impossible to locate unwed fathers when adoption proceedings are brought, whereas mothers are more likely to remain with their children. Even if the special difficulties attendant upon locating and identifying unwed fathers at birth would justify a legislative distinction between mothers and fathers of newborns,[^{Footnote 11} ] these difficulties need not persist past infancy. When the adoption of an older child is sought, the State's interest in proceeding with adoption cases can be protected by means that do not draw such an inflexible gender-based distinction as that made in 111.[^{Footnote 12} ] In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Indeed, under the statute as it now stands the surrogate may proceed in the absence of consent when the parent whose consent otherwise would be required never has come forward or has abandoned the child.[^{Footnote 13} ] See, e. g., In re Orlando F., 40 N. Y. 2d 103, 351

N. E. 2d 711 (1976). But in cases such as this, where the father has established a substantial relationship with the child and has admitted his paternity,[^{Footnote 14} ] a State should have no difficulty in identifying the father even of children born out of wedlock.[^{Footnote 15} ] Thus, no showing has been made that the different treatment afforded unmarried fathers and unmarried mothers under 111 bears a substantial relationship to the proclaimed interest of the State in promoting the adoption of illegitimate children.

In sum, we believe that 111 is another example of "over-broad generalizations" in gender-based classifications. See Califano v. Goldfarb,  430 U.S. 199, 211 (1977); Stanton v. Stanton,  421 U.S. 7, 14 -15 (1975). The effect of New York's classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests.[^{Footnote 16} ]

The judgment of the New York Court of Appeals is

Reversed.

Footnotes

Although a natural mother in New York has many parental rights without adopting her child, New York courts have held that 110 provides for the adoption of an illegitimate child by his mother. See In re Anonymous Adoption, 177 Misc. 683, 31 N. Y. S. 2d 595 (Surr. Ct. 1941).

As an exception to this general rule, 117 provides that

"[w]hen a natural or adoptive parent, having lawful custody of a child, marries or remarries and consents that the stepfather or stepmother may adopt such child, such consent shall not relieve the parent so consenting of any parental duty toward such child nor shall such consent or the order of adoption affect the rights of such consenting spouse and such adoptive child to inherit from and through each other and the natural and adopted kindred of such consenting spouse."

In addition, 117 (2) provides that adoption shall not affect a child's right to distribution of property under his natural parents' will.

"The consent shall not be required of a parent who has abandoned the child or who has surrendered the child to an authorized agency for the purpose of adoption under the provisions of the social services law or of a parent for whose child a guardian has been appointed under the provisions of section three hundred eighty-four of the social services law or who has been deprived of civil rights or who is insane or who has been judicially declared incompetent or who is mentally retarded as defined by the mental hygiene law or who has been adjudged to be an habitual drunkard or who has been judicially deprived of the custody of the child on account of cruelty or neglect, or pursuant to a judicial finding that the child is a permanently neglected child as defined in section six hundred eleven of the family court act of the state of New York; except that notice of the proposed adoption shall be given in such manner as the judge or surrogate may direct and an opportunity to be heard thereon may be afforded to a parent who has been deprived of civil rights and to a parent if the judge or surrogate so orders. Notwithstanding any other provision of law, neither the notice of a proposed adoption nor any process in such proceeding shall be required to contain the name of the person or persons seeking to adopt the child. For the purposes of this section, evidence of insubstantial and infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a finding that such parent has abandoned such child.

"Where the adoptive child is over the age of eighteen years the consents specified in subdivisions two and three of this section shall not be required, and the judge or surrogate in his discretion may direct that the consent specified in subdivision four of this section shall not be required if in his opinion the moral and temporal interests of the adoptive child will be promoted by the adoption and such consent cannot for any reason be obtained.

"An adoptive child who has once been lawfully adopted may be readopted directly from such child's adoptive parents in the same manner as from its natural parents. In such case the consent of such natural parents shall not be required but the judge or surrogate in his discretion

may require that notice be given to the natural parents in such manner as he may prescribe."

In Quilloin we expressly reserved the question whether the Georgia statute similar to 111 of the New York Domestic Relations Law unconstitutionally distinguished unwed parents according to their gender, as the claim was not properly presented. See 434 U.S., at 253 n. 13.

We do not suggest, of course, that the provision of 111 making parental consent unnecessary in cases of abandonment is the only constitutional mechanism available to New York for the protection of its interest in allowing the adoption of illegitimate children when their natural fathers are not available to be consulted. In reviewing the constitutionality of statutory classifications, "it is not the function of a court `to hypothesize independently on the desirability or feasibility of any possible alternative[s]' to the statutory scheme formulated by [the State]." Lalli v. Lalli,  439 U.S. 259, 274 (1978) (quoting Mathews v. Lucas,  427 U.S. 495, 515 (1976)). We note some alternatives to the gender-based distinction of 111 only to emphasize that the state interests asserted in support of the statutory classification could be protected through numerous other mechanisms more closely attuned to those interests.

Finally, appellant argues that he was denied substantive due process when the New York courts terminated his parental rights without first finding him to be unfit to be a parent. See Stanley v. Illinois,  405 U.S. 645 (1972) (semble). Because we have ruled that the New York statute is unconstitutional under the Equal Protection Clause, we similarly express no view as to whether a State is constitutionally barred from ordering adoption in the absence of a determination that the parent whose rights are being terminated is unfit.

MR. JUSTICE STEWART, dissenting.

For reasons similar to those expressed in the dissenting opinion of MR. JUSTICE STEVENS, I agree that 111 (1) (c) of

the New York Domestic Relations Law (McKinney 1977) is not constitutionally infirm. The State's interest in promoting the welfare of illegitimate children is of far greater importance than the opinion of the Court would suggest. Unlike the children of married parents, illegitimate children begin life with formidable handicaps. They typically depend upon the care and economic support of only one parent - usually the mother. And, even in this era of changing mores, they still may face substantial obstacles simply because they are illegitimate. Adoption provides perhaps the most generally available way of removing these handicaps. See H. Clark, Law of Domestic Relations 177 (1968). Most significantly, it provides a means by which an illegitimate child can become legitimate - a fact that the Court's opinion today barely acknowledges.

The New York statute reflects the judgment that, to facilitate this ameliorative change in the child's status, the consent of only one parent should ordinarily be required for adoption of a child born out of wedlock. The mother has been chosen as the parent whose consent is indispensable. A different choice would defy common sense. But the unwed father, if he is the lawful custodian of the child, must under the statute also consent.^{Footnote *} And, even when he does not have custody, the unwed father who has an established relationship with his illegitimate child is not denied the opportunity to participate in the adoption proceeding. His relationship with the child will be terminated through adoption only if a court determines that adoption will serve the child's best interest. These distinctions represent, I think, a careful accommodation of the competing interests at stake and bear a close and substantial relationship to the State's goal of promoting the welfare of its children. In my view, the Constitution requires no more.

The appellant has argued that the statute, in granting

rights to an unwed mother that it does not grant to an unwed father, violates the Equal Protection Clause by discriminating on the basis of gender. And he also has made the argument that the statute, because it withholds from the unwed father substantive rights granted to all other classes of parents, violates both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. I find the latter contention less troublesome than does my Brother STEVENS, and see no ultimate merit in the former.

A

The appellant relies primarily on Stanley v. Illinois,  405 U.S. 645 , in advancing the second argument identified above. But it is obvious that the principle established in that case is not offended by the New York law. The Illinois statute invalidated in Stanley employed a stark and absolute presumption that the unwed father was not a fit parent. Upon the death of the unwed mother, the children were declared wards of the State and in Stanley's case were removed from his custody without any hearing or demonstration that he was not a fit parent. Custody having been taken from the father by a stranger - the State - the children were then transferred to other strangers. Stanley, who had lived with his three children over a period of 18 years, was given no opportunity to object. And, although the statute purported to promote the welfare of illegitimate children, the State's termination of Stanley's family relationship was made without any finding that the interests of his children would thereby be served.

Here, in sharp contrast, the unwed mother is alive, has married, and has voluntarily initiated the adoption proceeding. The appellant has been given the opportunity to participate and to present evidence on the question whether adoption would be in the best interests of the children. Thus, New York has accorded to the appellant all the process that Illinois unconstitutionally denied to Stanley.

The Constitution does not require that an unmarried father's substantive parental rights must always be coextensive with those afforded to the fathers of legitimate children. In this setting, it is plain that the absence of a legal tie with the mother provides a constitutionally valid ground for distinction. The decision to withhold from the unwed father the power to veto an adoption by the natural mother and her husband may well reflect a judgment that the putative father should not be able arbitrarily to withhold the benefit of legitimacy from his children.

Even if it be assumed that each married parent after divorce has some substantive due process right to maintain his or her parental relationship, cf. Smith v. Organization of Foster Families,  431 U.S. 816, 862 -863 (opinion concurring in judgment), it by no means follows that each unwed parent has any such right. Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring. The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father's parental claims must be gauged by other measures. By tradition, the primary measure has been the legitimate familial relationship he creates with the child by marriage with the mother. By definition, the question before us can arise only when no such marriage has taken place. In some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father. Cf. Stanley v. Illinois, supra. But here we are concerned with the rights the unwed father may have when his wishes and those of the mother are in conflict, and the child's best interests are served by a resolution in favor of the mother. It seems to me that the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist by virtue of the father's actual relationship with the children.

B

The appellant's equal protection challenge to the distinction drawn between the unwed father and mother seems to me more substantial. Gender, like race, is a highly visible and immutable characteristic that has historically been the touchstone for pervasive but often subtle discrimination. Although the analogy to race is not perfect and the constitutional inquiry therefore somewhat different, gender-based statutory classifications deserve careful constitutional examination because they may reflect or operate to perpetuate mythical or stereotyped assumptions about the proper roles and the relative capabilities of men and women that are unrelated to any inherent differences between the sexes. Cf. Orr v. Orr,  440 U.S. 268 . Sex-based classifications are in many settings invidious because they relegate a person to the place set aside for the group on the basis of an attribute that the person cannot change. Reed v. Reed,  404 U.S. 71 ; Stanton v. Stanton,  421 U.S. 7 ; Frontiero v. Richardson, 411 U.S. 677 ; Weinberger v. Wiesenfeld, 420 U.S. 636 ; Orr v. Orr, supra. Such laws cannot be defended, as can the bulk of the classifications that fill the statute books, simply on the ground that the generalizations they reflect may be true of the majority of members of the class, for a gender-based classification need not ring false to work a discrimination that in the individual case might be invidious. Nonetheless, gender-based classifications are not invariably invalid. When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated. See, e. g., Schlesinger v. Ballard,  419 U.S. 498 . Cf. San Antonio Independent School Dist. v. Rodriguez,  411 U.S. 1, 59 (concurring opinion).

In my view, the gender-based distinction drawn by New York falls in this latter category. With respect to a large group of adoptions - those of newborn children and infants - unwed mothers and unwed fathers are simply not similarly

situated, as my Brother STEVENS has demonstrated. Our law has given the unwed mother the custody of her illegitimate children precisely because it is she who bears the child and because the vast majority of unwed fathers have been unknown, unavailable, or simply uninterested. See H. Clark, Law of Domestic Relations 176-177 (1968); H. Krause, Illegitimacy: Law and Social Policy 29-32 (1971). This custodial preference has carried with it a correlative power in the mother to place her child for adoption or not to do so.

The majority of the States have incorporated these basic common-law rules in their statutes identifying the persons whose participation or consent is requisite to a valid adoption. See generally Note, 59 Va. L. Rev. 517 (1973); Comment, 70 Mich. L. Rev. 1581 (1972). These common-law and statutory rules of law reflect the physical reality that only the mother carries and gives birth to the child, as well as the undeniable social reality that the unwed mother is always an identifiable parent and the custodian of the child - until or unless the State intervenes. The biological father, unless he has established a familial tie with the child by marrying the mother, is often a total stranger from the State's point of view. I do not understand the Court to question these pragmatic differences. See ante, at 392. An unwed father who has not come forward and who has established no relationship with the child is plainly not in a situation similar to the mother's. New York's consent distinctions have clearly been made on this basis, and in my view they do not violate the Equal Protection Clause of the Fourteenth Amendment. See Schlesinger v. Ballard, supra.

In this case, of course, we are concerned not with an unwilling or unidentified father but instead with an unwed father who has established a paternal relationship with his children. He is thus similarly situated to the mother, and his claim is that he thus has parental interests no less deserving of protection than those of the mother. His contention that the New York

law in question consequently discriminates against him on the basis of gender cannot be lightly dismissed. For substantially the reasons expressed by MR. JUSTICE STEVENS in his dissenting opinion, post, at 412-413, I believe, however, that this gender-based distinction does not violate the Equal Protection Clause as applied in the circumstances of the present case.

It must be remembered that here there are not two, but three interests at stake: the mother's the father's, and the children's. Concerns humane as well as practical abundantly support New York's provision that only one parent need consent to the adoption of an illegitimate child, though it requires both parents to consent to the adoption of one already legitimate. If the consent of both unwed parents were required, and one withheld that consent, the illegitimate child would remain illegitimate. Viewed in these terms the statute does not in any sense discriminate on the basis of sex. The question, then, is whether the decision to select the unwed mother as the parent entitled to give or withhold consent and to apply that rule even when the unwed father in fact has a paternal relationship with his children constitutes invidious sex-based discrimination.

The appellant's argument would be a powerful one were this an instance in which it had been found that adoption by the father would serve the best interests of the children, and in the face of that finding the mother had been permitted to block the adoption. But this is not such a case. As my Brother STEVENS has observed, under a sex-neutral rule - assuming that New York is free to require the consent of but one parent for the adoption of an illegitimate child - the outcome in this case would have been the same. The appellant has been given the opportunity to show that an adoption would not be in his children's best interests. Implicit in the finding made by the New York courts is the judgment that termination of his relationship with the children will in fact promote their well-being - a judgment we are obligated to accept.

That the statute might permit - in a different context - the unwed mother arbitrarily to thwart the wishes of the caring father as well as the best interests of the child is not a sufficient reason to invalidate it as applied in the present case. For here the legislative goal of the statute - to facilitate adoptions that are in the best interests of illegitimate children after consideration of all other interests involved - has indeed been fully and fairly served by this gender-based classification. Unless the decision to require the consent of only one parent is in itself constitutionally defective, which nobody has argued, the same interests that support that decision are sufficiently profound to overcome the appellant's claim that he has been invidiously discriminated against because he is a male.

I agree that retroactive application of the Court's decision today would work untold harm, and I fully subscribe to Part III of MR. JUSTICE STEVENS' dissent.

MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.

Under 111 (1) (c) of the New York Domestic Relations Law (McKinney 1977), the adoption of a child born out of wedlock usually requires the consent of the natural mother; it does not require that of the natural father unless he has "lawful custody." See ante, at 386 n. 4. Appellant, the natural but noncustodial father of two school-age children born out of wedlock,^{Footnote 1} challenges that provision insofar as it allows the adoption of his natural children by the husband of the natural mother without his consent. Appellant's primary objection is that this unconsented-to termination of his parental rights without proof of unfitness on his part violates the substantive component of the Due Process Clause of the Fourteenth Amendment. Secondarily, he attacks 111 (1) (c)'s disparate

treatment of natural mothers and natural fathers as a violation of the Equal Protection Clause of the same Amendment. In view of the Court's disposition, I shall discuss the equal protection question before commenting on appellant's primary contention. I shall then indicate why I think the holding of the Court, although erroneous, is of limited effect.

I

This case concerns the validity of rules affecting the status of the thousands of children who are born out of wedlock every day.^{Footnote 2} All of these children have an interest in acquiring the status of legitimacy; a great many of them have an interest in being adopted by parents who can give them opportunities that would otherwise be denied; for some the basic necessities of life are at stake. The state interest in facilitating adoption in appropriate cases is strong - perhaps even "compelling."^{Footnote 3}

Nevertheless, it is also true that 111 (1) (c) gives rights to natural mothers that it withholds from natural fathers. Because it draws this gender-based^{Footnote 4} distinction between two classes of citizens who have an equal right to fair and impartial treatment by their government, it is necessary to determine whether there are differences between the members of the two classes that provide a justification for treating them differently.^{Footnote 5} That determination requires more than merely recognizing that society has traditionally treated the two classes differently.^{Footnote 6} But it also requires analysis that goes beyond a merely reflexive rejection of gender-based distinctions.

Men and women are different, and the difference is relevant to the question whether the mother may be given the exclusive right to consent to the adoption of a child born out of wedlock. Because most adoptions involve newborn infants or very young children,^{Footnote 7} it is appropriate at the outset to focus on the significance of the difference in such cases.

Both parents are equally responsible for the conception of the child out of wedlock.^{Footnote 8} But from that point on through pregnancy and infancy, the differences between the male and the female have an important impact on the child's destiny. Only the mother carries the child; it is she who has the constitutional right to decide whether to bear it or not.^{Footnote 9} In many

cases, only the mother knows who sired the child, and it will often be within her power to withhold that fact, and even the fact of her pregnancy, from that person. If during pregnancy the mother should marry a different partner, the child will be legitimate when born, and the natural father may never even know that his "rights" have been affected. On the other hand, only if the natural mother agrees to marry the natural father during that period can the latter's actions have a positive impact on the status of the child; if he instead should marry a different partner during that time, the only effect on the child is negative, for the likelihood of legitimacy will be lessened.

These differences continue at birth and immediately thereafter. During that period, the mother and child are together;^{Footnote 10} the mother's identity is known with certainty. The father, on the other hand, may or may not be present; his identity may be unknown to the world and may even be uncertain to the mother.^{Footnote 11} These natural differences between unmarried fathers and mothers make it probable that the mother, and not the father or both parents, will have custody of the new-born infant.^{Footnote 12}

In short, it is virtually inevitable that from conception through infancy the mother will constantly be faced with decisions about how best to care for the child, whereas it is much less certain that the father will be confronted with comparable problems. There no doubt are cases in which the relationship of the parties at birth makes it appropriate for the State to give the father a voice of some sort in the adoption decision.^{Footnote 13} But as a matter of equal protection analysis,

it is perfectly obvious that at the time and immediately after a child is born out of wedlock, differences between men and women justify some differential treatment of the mother and father in the adoption process.

Most particularly, these differences justify a rule that gives the mother of the newborn infant the exclusive right to consent to its adoption. Such a rule gives the mother, in whose sole charge the infant is often placed anyway, the maximum flexibility in deciding how best to care for the child. It also gives the loving father an incentive to marry the mother,^{Footnote 14} and has no adverse impact on the disinterested father. Finally, it facilitates the interests of the adoptive parents, the child, and the public at large by streamlining the often traumatic adoption process and allowing the prompt, complete, and reliable integration of the child into a satisfactory

new home at as young an age as is feasible.^{Footnote 15} Put most simply, it permits the maximum participation of interested natural parents without so burdening the adoption process that its attractiveness to potential adoptive parents is destroyed.

This conclusion is borne out by considering the alternative rule proposed by appellant. If the State were to require the consent of both parents, or some kind of hearing to explain why either's consent is unnecessary or unobtainable,^{Footnote 16} it would unquestionably complicate and delay the adoption process. Most importantly, such a rule would remove the mother's freedom of choice in her own and the child's behalf without also relieving her of the unshakable responsibility for the care of the child. Furthermore, questions relating to the adequacy of notice to absent fathers could invade the mother's privacy,[^{Footnote 17} ] cause the adopting parents to doubt the reliability