McLean, In Interest of

• Decision Date: 11 February 1987
• Docket Number: No. C-4782,C-4782
• Citation: 725 S.W.2d 696
• Parties: In the Interest of Unnamed Baby McLEAN, a Child, Petitioner.
• Court: Texas Supreme Court

Page 696

725 S.W.2d 696

55 USLW 2474

In the Interest of Unnamed Baby McLEAN, a Child, Petitioner.

No. C-4782.

Supreme Court of Texas.

Feb. 11, 1987.

Rehearing Denied April 1, 1987.

Holly Crampton, Crampton, Crampton & Estrada, Wichita Falls, for petitioner.

David K. Phillips, Anderson & Rodriguez, Barry Macha, Dist. Attys. Office, Jeanmarie Baer, Ass't Dist. Atty., Marty Cannedy, Merkle & Cannedy, Wichita Falls, for respondent.

KILGARLIN, Justice.

The Texas Equal Rights Amendment, Tex. Const. art. I, § 3a, was adopted in 1972. This case calls upon us to make an initial interpretation of the extent of its guarantees. In 1983, Laura McLean, unwed, gave birth to a child. The undisputed father of the child, Billy Dean Wise, was then, and still remains, married to another woman. McLean decided to allow the infant to be adopted and the prospective parents brought suit to terminate the parent-child relationship as to both McLean and Wise. Wise filed a cross-action for legitimation, seeking managing conservatorship. The would-be adoptive parents then took a non-suit and McLean filed a general denial, opposing Wise's legitimation request and asking that no conservator be appointed. The Child Welfare Unit of Wichita County Family Court Services intervened, seeking managing conservatorship of the child, supported by McLean's affidavit urging that the child be placed with the Child Welfare Unit and stating that Wise was an unfit person to care for the child.

After trial to the court, the Child Welfare Unit was appointed managing conservator and Wise's suit for legitimation was denied. Wise appealed and a divided court of appeals affirmed the trial court judgment. 697 S.W.2d 479. Wise filed this application for writ of error, alleging violations of both the United States and Texas Constitutions, because he was forced to prove that legitimation would be in the child's best interest. ¹ Based on the Texas Equal Rights Amendment, we reverse the court of appeals' judgment.

Article I, section 3a, of the Texas Constitution provides that "[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." The first step in a case invoking this provision is to determine whether equality under the law has been denied. Any discrimination which occurred in the instant case is clearly "under the law" because it is required by state statute. Our next inquiry is whether equality was denied because of a person's membership in a protected class of sex, race, color, creed, or national origin.

Thus, the task in this case is to examine the Family Code to see if it treats Wise differently because he is male. When a child is born to a woman not married to the child's father, she automatically exercises all of the rights, duties, and privileges of the parent-child relationship. Tex.Fam.Code Ann. § 12.04 (Vernon 1986). Circumstances are different for a man who is not married to the child's mother: the father has all of those parental rights, duties, and responsibilities only if the mother consents. Tex.Fam.Code Ann. § 13.21(b) (Vernon 1986). Should the mother deny her consent, she pits the acknowledged father against the state: he must convince the trier of fact that legitimation best serves the child's interest if his paternity is to be legally recognized. Tex.Fam.Code Ann. § 13.21(c) (Vernon 1986). But, a man seeking to terminate a mother's parental rights finds the burden placed on him to prove that the child's best interest compels severing the child's relationship with the mother. Without maternal consent or meeting a higher burden of proof, the father has no rights in regard to his own child. Mothers are never subjected to such a proceeding; a woman, until her rights are terminated, exercises her parental prerogatives regardless of the father's veto. This is a gender-based distinction because only men are required to satisfy the "best interest" test before being recognized as a parent.

Having determined that the challenged statute discriminates on the basis of gender, we next focus on whether such discrimination is prohibited by the Equal Rights Amendment. At the outset, we note that federal precedent is not controlling when considering a case under the Texas Equal Rights Amendment. Moreover, no federal constitutional counterpart exists, efforts to secure ratification of a national E.R.A. having met with a lack of success. Therefore, we decide this case on independent state constitutional grounds.

We decline to give the Texas Equal Rights Amendment an interpretation identical to that given state and federal due process and equal protection guarantees. Both the United States Constitution and the Texas Constitution had due process and equal protection guarantees before the Texas Equal Rights Amendment was adopted in 1972. U.S. Const.Amend. V; XIV, § 1; Tex. Const. art. I, §§ 3, 13, 19. If the due process and equal protection provisions and the Equal Rights Amendment are given identical interpretations, then the 1972 amendment, adopted by a four to one margin by Texas voters, was an exercise in futility. See Schoen, The Texas Equal Rights Amendment in the Courts--1972-1977: A Review and Proposed Principles of Interpretation, 15 Hous.L.Rev. 537 (1978).

It is axiomatic that constitutional provisions are interpreted in such a manner as to give effect to every phrase of the document. Hanson v. Jordan, 145 Tex. 320, 198 S.W.2d 262 (1946). Similarly, no provision ordinarily duplicates another, and the language used is presumed to have been carefully selected. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147 (1943). Instead of rendering the added guarantees meaningless, we conclude that the Equal Rights Amendment is more extensive and provides more specific protection than both the United States and Texas due process and equal protection guarantees. We do not question the wisdom behind a constitutional provision, Lewis v. Independent School District of City of Austin, 139 Tex. 83, 161 S.W.2d 450 (1943), but instead give each protection the dignity and effect intended. Koy v. Schneider, 110 Tex. 369, 218 S.W. 479 (1920), op. on r'hng, 110 Tex. 394, 221 S.W. 880 (1920).

Our Bill of Rights is not made up of a series of one-dimensional rules, to be applied blindly, but instead declares a guiding norm and principle to be applied and interpreted by the courts. We thus choose not to adopt a per se standard which would automatically invalidate gender-based distinctions, but rather seek a standard to be used to reach the evils which it was designed to combat. Our reading of the Equal Rights Amendment elevates sex to a suspect classification. Sex is clearly listed in the amendment along with other classifications afforded maximum constitutional protection.

The appropriate standard is thus one which recognizes that the Equal Rights Amendment does not yield except to compelling state interests. Further, it is not enough to say that the state has an important interest furthered by the discriminatory law. Even the loftiest goal does not justify sex-based discrimination in light of the clear constitutional prohibition. Under our model of strict judicial scrutiny, such discrimination is allowed only when the proponent of the discrimination can prove that there is no other manner to protect the state's compelling interest. Mercer v. Board of Trust, North Forest Independent School District, 538 S.W.2d 201 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.).

In this case, the state no doubt has a significant interest in protecting the welfare of a child born to a mother not married to the child's father. As this court has previously recognized:

[T]he State has a legitimate interest in protecting the children who are born as a result of pre-marital sexual activity. The mother, by virtue of her pregnancy, is automatically responsible for the child. She has the physical burdens and responsibilities of the pregnancy. She can choose to abort the child or she may carry it full term. The State has a substantial interest in encouraging the unwed mother to properly care for the child by assuring her that her wishes as to the disposition of the child will not, absent her consent or a finding of the child's best interest, be subject to the absolute veto of the biological father.

In the Interest of T.E.T., 603 S.W.2d 793, 797 (Tex.1980). ²

Nevertheless, the state's interest can be protected without discriminating solely on the basis of sex. The state goal of protecting children's welfare is better served by keying that interest to the father's relationship to the child. A father who steps forward, willing and able to shoulder the responsibilities of raising a child should not be required to meet a higher burden of proof solely because he is male.

Because we hold that sections 13.21(b) and (c) of the Texas Family Code violates the Texas Constitution, we need not reach the federal law issues in this case. We reverse the judgment of the court of appeals and remand this cause to the trial court so that it can declare Wise's parental rights, if any, and resolve the conservatorship issue without regard to sex. Texas Family Code section 14.01 (Vernon 1986) provides an adequate basis for this determination. In re Baby Girl S, 628 S.W.2d 261 (Tex.App.--Eastland 1982, writ ref'd n.r.e.), jdgm't vacated and cause remanded after cert. granted, 460 U.S. 1074, 103 S.Ct. 1760, 76 L.Ed.2d 337 (1983), is disapproved to the extent that it conflicts with this holding.

GONZALEZ, J., files a concurring and dissenting opinion in which WALLACE, J., joins.

GONZALEZ, Justice, concurring and dissenting.

I concur with the part of the opinion that adopts strict scrutiny as the standard of review for gender-based discrimination under the Texas Equal Rights Amendment. Tex. Const. art. I, § 3a. I disagree, however, that the cause should be remanded to the trial court for further proceedings. I would hold that the trial court...