In Interest of McLean - 725 S.W.2d 696 (Tex. 1987)

Rule:

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. The court thus chooses not to adopt a per se standard which would automatically invalidate gender-based distinctions, but rather seeks a standard to be used to reach the evils which it was designed to combat. The court's reading of the Texas Equal Rights Amendment, Tex. Const. art. I, § 3a, elevates sex to a suspect classification. Sex is clearly listed in the amendment along with other classifications afforded maximum constitutional protection.

Facts:

Petitioner, a father, had a child with a woman while he was married to someone else. Petitioner sued to legitimate the child pursuant to Tex. Fam. Code Ann. § 13.21 (1982), the mother opposed the legitimation, and the trial court denied petitioner's suit. The appellate court affirmed the judgment.

Issue:

Did the disparate treatment in the legitimation statute make the statute unconstitutional?

Answer:

Yes.

Conclusion:

On an application for writ of error, the court held that the Texas Equal Rights Amendment, Tex. Const. art. I, § 3a, provided more specific protection than the equal protection guarantees in the U.S. or Texas constitutions and made sex a suspect classification. Because Tex. Fam. Code Ann. § 13.21(b) and (c) (1982) required that a father obtain the mother's consent or prove that legitimation was in the best interest of the child in order for him to have any rights to his child born out of wedlock, and because a mother did not have a similar burden, and because there were other ways of protecting the state's compelling interest in protecting children, the different treatment of mothers and fathers in § 13.21(b) and (c) (1982) did not meet the strict scrutiny test and violated Tex. Const. art. I, § 3a. Therefore, the court reversed the judgment and remanded the case for further proceedings.