Crego v. Coleman

615 N.W.2d 218 (2000) 463 Mich. 248

Phyllis R. CREGO, also known as Phyllis R. Sock, Plaintiff-Appellee,
v.
Kermit L. COLEMAN, Defendant-Appellant.

Docket No. 113485, Calendar No. 4.

Supreme Court of Michigan.

Argued March 8, 2000. Decided July 31, 2000.

Robes & Kobliska, P.C. (by Mathew Kobliska), Farmington Hills, for plaintiff-appellee.

Steven M. Jentzen, P.C. (by Steven M. Jentzen), Ypsilanti, for defendant-appellant.

Opinion

MARKMAN, J.

In this case, we are asked to consider the constitutionality of a repealed section of the Paternity Act, M.C.L. § 722.713; MSA 25.493,^[1] which permitted a mother of a child born out of wedlock to enter into a nonmodifiable child support agreement with her child's putative father. We conclude that the statute in question did not violate equal protection guarantees.

I. Factual and Procedural History

In October 1978, plaintiff filed a paternity action, alleging that defendant fathered plaintiff's daughter who was born in August 1978. In 1980, the parties reached a settlement agreement, and the complaint was dismissed without having determined the issue of paternity. Through the settlement agreement, defendant agreed to pay weekly child support but did not acknowledge paternity. As required by M.C.L. § 722.713; MSA 25.493, the trial court approved the terms of the settlement and ordered defendant to pay child support of $20 a week, pending a formal recommendation from the friend of the court. A second order was later entered, increasing the support to $35 a week, and providing that the order was "not modifiable." Moreover, this second order provided that the matter "shall stand settled, discontinued, and dismissed" as to defendant. In January 1981, after receiving the friend of the court's support recommendation, the trial court entered a "permanent" order, requiring defendant to pay $50 a week until the child's eighteenth birthday or until further order of the court.^[2]

In the early 1990s, plaintiff filed a motion to modify the support order, but the trial court dismissed the motion on the ground of res judicata. A divided panel of the Court of Appeals affirmed the dismissal, holding that the nonmodifiable settlement agreement was binding on the parties. 201 Mich.App. 443, 447, 506 N.W.2d 568 (1993) ( Crego). Additionally, the Court rejected plaintiff's claim that M.C.L. § 722.713; MSA 25.493 was an unconstitutional denial of equal protection to illegitimate children. Id. at 446, 506 N.W.2d 568, citing Hisaw v. Hayes, 133 Mich.App. 639, 642, 350 N.W.2d 302 (1984).

In 1995 however, in an unrelated case, the Court of Appeals reached the opposite conclusion when it held that M.C.L. § 722.713; MSA 25.493 violated the constitutional guarantees of equal protection because the statute authorized nonmodifiable child support awards in paternity actions, while child support awards in divorce actions always remain modifiable. Dones v. Thomas, 210 Mich.App. 674, 534 N.W.2d 221 (1995). The Court did not make reference to its earlier decision in Crego I. In response to Dones, plaintiff renewed her motion for modification of child support, and the trial court granted the motion, concluding that it was required to follow the decision in Dones, even where that decision conflicted with Crego I. The trial court also held that the parties would be afforded an opportunity to resolve any issue regarding paternity through the use of DNA testing if they so desired.

On appeal, the Court of Appeals held that it would find the statute unconstitutional except that it was barred from doing so by MCR 7.215(H)(1), requiring the Court to follow Crego I, regardless of the Dones decision. 226 Mich.App. 815, 821, 573 N.W.2d 291 (1997) ( Crego II). A conflict panel was convened to resolve the conflict between Crego I and Crego II, MCR 7.215(H)(3),^[3] and that panel held that M.C.L. § 722.713; MSA 25.493 was unconstitutional as a violation of the equal protection guarantees of the United States and Michigan Constitutions. 232 Mich.App. 284, 591 N.W.2d 277 (1998) (Crego III). We granted leave to appeal. 461 Mich. 895, 603 N.W.2d 780 (1999).

II. Conflicting Statutory Child Support Provisions

The repealed section of the Paternity Act at issue here established a means of enforcing nonmodifiable child support agreements under certain circumstances: (a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.

(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child. [MCL 722.713; MSA 25.493 (emphasis added).]

It is important to recognize that the challenged statute was only relevant to nonmodifiable agreements where all the following elements were present: (1) a paternity action was filed; (2) the child's mother and putative father^[4] voluntarily entered into an agreement regarding child support, in lieu of a judicial determination of paternity; (3) the circuit court made a determination that the agreement secured "adequate provision" for the child's needs; and (4) the agreement failed to include language preserving the right to modify support levels at a later time.

In the instant case, the parties expressly agreed to nonmodifiable support. Specifically, the stipulation provided that, "it is the intent of the parties that the attached order is not modifiable," and further provided that, "this matter shall stand settled, discontinued, and dismissed" against defendant.

Plaintiff bases her constitutional challenge on the interplay between several statutes providing mechanisms for obtaining child support. Child support may be established through one of three categories of support orders: (1) those entered pursuant to a divorce action; (2) those entered pursuant to a paternity action in which paternity has been established (through one of a number of available methods); and (3) those, as here, entered pursuant to a stipulation to dismiss a paternity action before determining paternity.

In the first category, children born or conceived during a marriage are deemed issue of the marriage,^[5] and child support agreements entered in divorce actions always remain modifiable, depending upon changed circumstances. This is made clear through the text of three separate statutory provisions. MCL 552.455(1); MSA 25.222(5)(1) explains the process through which predivorce temporary support orders may be modified; MCL 552.17(1); MSA 25.97(1) explains the process through which support orders entered pursuant to divorce may be modified by motion of the parties; and M.C.L. § 552.517; MSA 25.176(17) provides that postjudgment modifications to support orders may be made pursuant to friend of the court recommendations. These provisions, considered together, allow a circuit court to modify all child support agreements reached pursuant to a divorce action.

In the second category, child support orders remain modifiable where a final paternity determination has been reached by way of a formal paternity action. Such a determination may be made through a variety of methods. In the first of two statutory methods, the Paternity Act, M.C.L. § 722.711 et seq.; MSA 25.491 et seq., allows modification in cases where an order of filiation has entered:

The court has continuing jurisdiction over proceedings brought under this act to increase or decrease the amount fixed by the order of filiation subject to section 7(3) or (4), and to provide for, change, and enforce provisions of the order relating to the custody or support of or parenting time with the child. [MCL 722.720(1); MSA 25.500(1).]

The second statutory category, also found in the Paternity Act, M.C.L. § 722.711 et seq., MSA 25.491 et seq., allows modification in cases where an acknowledgment of paternity has been obtained:

An acknowledgment signed under this act establishes paternity, and the acknowledgment may be the basis for court ordered child support, custody, or parenting time without further adjudication under the paternity act.... The child who is the subject of the acknowledgment shall bear the same relationship to the mother and the man signing as the father as a child born or conceived during a marriage and shall have the identical status, rights, and duties of a child born in lawful wedlock effective from birth. [MCL 722.1004; MSA 25.604.]

Except as otherwise provided by law, a mother and father who sign an acknowledgment that is filed as prescribed in section 5 are consenting to the general, personal jurisdiction of the courts of record of this state regarding the issues of the support, custody, and parenting time of the child. [MCL 722.1010; MSA 25.610.]

It is the third statutory category of establishing child support—through orders entered pursuant to a voluntary stipulation to dismiss a paternity action before determining paternity—that is at issue in the instant case. Only in this statutory category are nonmodifiable support agreements permitted. It is important to note, however, that this third category of child support includes both modifiable and nonmodifiable support agreements. The statute does not require that such orders be nonmodifiable; it merely permits nonmodifiable orders, provided that the court determines that the parties' agreement adequately provides for the child.

III. Equal Protection Clause

The Equal Protection Clauses of the United States Constitution and the Michigan Constitution provide that no person shall be denied the equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. This Court has found Michigan's equal protection provision coextensive with the Equal Protection Clause of the federal constitution. See, e.g., Frame v. Nehls, 452 Mich. 171, 183, 550 N.W.2d 739 (1996) ("[t]he Michigan and federal Equal Protection Clauses offer similar protection"); Doe v. Dep't of Social Services, 439 Mich. 650, 670-671, 487 N.W.2d 166 (1992) ("a review of the jurisprudence and constitutional history of this state suggests ... that our Equal Protection Clause was intended to duplicate the federal clause and to offer similar protection").

The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment. Miller v. Johnson, 515 U.S. 900, 919, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995); El Souri. v. Dep't of Social Services, 429 Mich. 203, 207, 414 N.W.2d 679 (1987). Conversely, the Equal Protection Clauses do not prohibit disparate treatment with respect to individuals on account of other, presumably more genuinely differentiating, characteristics. Puget Sound Power & Light Co. v. City of Seattle, 291 U.S. 619, 54 S. Ct. 542, 78 L. Ed. 1025 (1934). Moreover, even where the Equal Protection Clauses are implicated, they do not go so far as to prohibit the state from distinguishing between persons, but merely require that "the distinctions that are made not be arbitrary or invidious." Avery v. Midland Co., Texas, 390 U.S. 474, 484, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968).

When a party raises a viable equal protection challenge, the court is required to apply one of three traditional levels of review, depending on the nature of the alleged classification. The highest level of review, or "strict scrutiny," is invoked where the law results in classifications based on "suspect" factors such as race, national origin, or ethnicity, none of which are implicated in this case. Plyler v. Doe, 457 U.S. 202, 216-217, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Absent the implication of these highly suspect categories, an equal protection challenge requires either rational-basis review or an intermediate, "heightened scrutiny" review.

A. Where rational basis applies

Under rational-basis review, courts will uphold legislation as long as that legislation is rationally related to a legitimate government purpose. Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). To prevail under this highly deferential standard of review, a challenger must show that the legislation is "arbitrary and wholly unrelated in a rational way to the objective of the statute." Smith v. Employment Security Comm., 410 Mich. 231, 271, 301 N.W.2d 285 (1981). A classification reviewed on this basis passes constitutional muster if the legislative judment is supported by any set of facts, either known or which could reasonably be assumed, even if such facts may be debatable. Shavers v. Attorney General, 402 Mich. 554, 613-614, 267 N.W.2d 72 (1978). Rational-basis review does not test the wisdom, need, or appropriateness of the legislation, or whether the classification is made with "mathematical nicety," or even whether it results in some inequity when put into practice. O'Donnell v. State Farm Mut. Automobile Ins. Co., 404 Mich. 524, 542, 273 N.W.2d 829 (1979). Rather, the statute is presumed constitutional, and the party challenging it bears a heavy burden of rebutting that presumption. Shavers, supra.

B. Where heightened scrutiny applies

The United States Supreme Court has recognized an intermediate level of review, between strict-scrutiny and rational-basis review, under which a challenged statutory classification will be upheld only if it is "substantially related to an important governmental objective." Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988). This "heightened scrutiny" standard has been applied to legislation creating classifications on such bases as illegitimacy and gender. The standard recognizes that, while there may be certain immutable distinctions, for example, between men and women or between legitimate and illegitimate children, that justify differing legislative treatments under some circumstances, the Legislature's authority to invoke those distinctions should not be viewed as an "impenetrable barrier that works to shield otherwise invidious discrimination." Gomez v. Perez, 409 U.S. 535, 538, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973). See also, e.g., Clark, supra; Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982); Mathews v. Lucas, 427 U.S. 495, 505-506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976)(all applying heightened scrutiny to classifications based on illegitimacy). Thus, where an equal protection claim alleges unconstitutional treatment on the basis of illegitimacy, the Supreme Court has held that "a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." Gomez, supra at 538, 93 S. Ct. 872. However, where a challenged statute is substantially related to an important state interest, the statute should be upheld. Mills, supra at 98-99, 102 S. Ct. 1549.

IV. Problems in Characterization

A. General problems in characterization

Whether the Court uses a rational-basis or heightened scrutiny standard of review depends on the characterization of the statutorily created classifications. See, e.g. Mathews, supra at 504, 96 S. Ct. 2755. Legislation, by its intrinsic nature, creates classifications, typically resulting in benefits or detriments to defined classes. See, e.g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-272, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920). It may sometimes be difficult, at least outside the realm of "strict scrutiny" review, to define a law in terms of whether it is countenancing a constitutionally impermissible classification or merely classifying persons who are genuinely situated differently.

This is because, in one sense, an equal protection claim simultaneously asserts that two persons are similarly situated, but also that, at another level, such persons are not similarly situated. The assertion that the two are similarly situated forms the predicate for the argument that, notwithstanding such similarity, they are being treated in a differing manner in some regard. The assertion that the two are not similarly situated is a function of the fact that there is some unshared characteristic that allegedly forms the basis for the differing treatment. Consequently, because an equal protection claim sometimes implicates this tension between the assertions of similarity and dissimilarity, its success may sometimes rise or fall on the basis of a court's characterization of the classifications created by a particular statute.^[6]

B. Specific problems in characterization

Not surprisingly, defendant characterizes this case as one in which different treatment has been properly afforded to children who were not, in fact, similarly situated. Rather, children whose paternity had been ascertained were treated differently than children whose paternity had not been ascertained. This is not an unreasonable characterization. The only children affected by the statute were those: (1) whose putative father had not admitted paternity by signing an acknowledgment; (2) whose putative father had not been adjudicated the natural father through an order of filiation; and (3) whose mother had not been able to obtain, through stipulation, a modifiable support agreement.

The constitutional challenge here, from defendant's perspective, is not unlike that raised in Frame v. Nehls, supra. In Frame, a grandfather sought visitation rights with his illegitimate grandchild. Under the relevant statute, grandparents only had standing to seek visitation during the pendency of a "child custody dispute." Because a paternity action was not within the statutory definition of a "child custody dispute," the grandfather lacked standing, and he challenged the statute on equal protection grounds, claiming that it unconstitutionally differentiated between legitimate and illegitimate children.

As in the instant case, the Court of Appeals in Frame agreed that the challenged statute created classifications on the basis of illegitimacy, and it found the statute an unconstitutional denial of equal protection. Frame v. Nehls, 208 Mich.App. 412, 416, 528 N.W.2d 773 (1995). However, this Court disagreed, holding that the classification did not distinguish between children on the basis of illegitimacy. Rather, this Court pointed out that grandparents had standing to pursue visitation regardless of the child's legitimacy where, for example, the parents of a child born out of wedlock married, then later divorced. Consequently, this Court concluded that the statute did not create classifications on the basis of illegitimacy. 452 Mich. at 186-187, 550 N.W.2d 739.

Under this statute, there are a variety of situations under which illegitimate children receive the same right to fully modifiable support as children born during a marriage. First, where a putative father has signed an acknowledgment of paternity, any child support order entered regarding the child is fully modifiable, because that child was, and is, accorded the "identical status, rights, and duties of a child born in lawful wedlock." MCL 722.1004; MSA 25.604. Second, where a putative father has been adjudicated the natural father by a circuit court, and an order of filiation has been entered, any child support order entered regarding that child was, and is, modifiable under M.C.L. § 722.720; MSA 25.500. Finally, where the parties to a paternity action have reached an agreement regarding child support, that agreement is modifiable as long as the support order includes language allowing modification. Consequently, it is not unreasonable to conclude that the statute has not created a classification on the basis of illegitimacy, but rather has created a classification on the basis of whether paternity had been legally determined. This is a classification that distinguishes between categories of illegitimate children, not between the categories of illegitimate and legitimate children. Under this interpretation, the statute should be upheld as long as it is rationally related to a permissible legislative objective.^[7] See Dandridge, supra at 485, 90 S. Ct. 1153; Manistee Bank & Trust v. McGowan, 394 Mich. 655, 668, 232 N.W.2d 636 (1975).

The dissent concludes that "[i]t is unreasonable to find that the statute did anything except distinguish the treatment of children on the basis of legitimacy." Op., at 235 (KELLY, J., dissenting); see also op., at 240 (WEAVER, C.J., dissenting). The dissenting justices reach this conclusion because, "illegitimate children, and they alone, received disparate treatment." Op., at 235 (KELLY, J., dissenting); see also op., at 240 (WEAVER, C.J., dissenting). However, the facts in the instant case are not unlike the facts in Geduldig v. Aiello, for example, where women, and they alone, were denied certain disability insurance benefits because the policy excluded benefits for pregnancy. 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974).^[8] In response to the argument that the challenged provision discriminated on the basis of gender because it only affected women—an argument analogous to the dissents' conclusion in the instant case—the Court stated:

While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification.... The [insurance] program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes. [Id. at 496, n. 20, 94 S. Ct. 2485.]

Likewise, "[w]hile it is true" that only illegitimate children face the risk of being unable to determine paternity with legal certainty, "it does not follow that every legislative classification concerning" the determination of paternity is an illegitimacy-based classification. Rather, in each case, the fundamental classification may be more appropriately identified as distinguishing between subclassifications of the larger group—only women who are pregnant, and only illegitimate children who have not determined paternity.^[9]

Plaintiff, like the dissents, and also not surprisingly, characterizes the challenged statute as one creating a statutory classification on the basis of illegitimacy. And although we could reasonably conclude that the statute merely differentiated on the basis of whether paternity had been ascertained, we also acknowledge that plaintiff's characterization of the statute is not unreasonable. First and foremost is our acknowledgment that the statute, where it applies, only affects illegitimate children. There is no apparent set of circumstances under which a legitimate child would be the object of an enforceable, nonmodifiable support agreement.^[10] And while we do not find this dispositive regarding the "correct" characterization of the statute, see Geduldig, supra, it certainly provides support for a reasonable conclusion that the statute does create illegitimacy-based classifications.

We find it noteworthy that the Paternity Act itself, on its face, unquestionably differentiates between illegitimate and legitimate children. Indeed, it is an act created solely to apply to illegitimate children, to afford those children an opportunity to obtain child support that has always been available to legitimate children. Yet, surely plaintiff would not argue that the act itself is violative of equal protection merely because it recognizes the unique circumstances of the illegitimate child. But for this act, illegitimate children had no clearly enforceable means of obtaining support from their fathers. The individual provision in controversy is merely one specific element of the act, and that provision, like the overall act itself, advances the underlying goal of providing support to children who might otherwise be left without that support.

The United States Supreme Court has repeatedly examined laws differentiating on the basis of illegitimacy. For example, in Mills and Clark, supra, the Court examined Texas and Pennsylvania laws limiting the period during which illegitimate children could establish paternity. The Texas statute required that paternity actions be filed within one year after the illegitimate child's birth, and the Pennsylvania statute required that paternity actions be filed within six years after the illegitimate child's birth. As in the instant case, the challenged statutes affected only illegitimate children. However, also similar to the instant case, the challenged Texas and Pennsylvania statutes ultimately only affected a subclassification of illegitimate children—those who failed to establish paternity within the statutory period of limitations.^[11] See also Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L. Ed. 2d 503 (1978)(upholding a New York statute imposing a proof requirement on illegitimate children who would inherit from their fathers); Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977)(striking down as unconstitutional an Illinois statute allowing legitimate children to inherit from both parents but precluding illegitimate children from inheriting from their fathers).

V. Resolving the Present Case

A. Rational basis satisfied

The plaintiff does not claim that the statute in question is unconstitutional on its face. Consequently, the claim must fail unless the statute's application renders it unconstitutional. When faced with a claim that application of a statute renders it unconstitutional, the Court must analyze the statute "as applied" to the particular case. See, e.g., People v. Lino, 447 Mich. 567, 570-571, 527 N.W.2d 434 (1994). Regardless of the level of scrutiny employed, an equal protection challenge requires us to make two findings: the governmental purpose behind the legislative enactment, and how closely related the law is to that purpose. If we view the challenged statute as one that merely differentiates on the basis of whether paternity has been established, we must then determine whether the statute is rationally related to a legitimate state interest. See Dandridge, supra at 485, 90 S. Ct. 1153.

The underlying purpose of the Paternity Act is to ensure that minor children born outside a marriage are provided with support and education. Whybra v. Gustafson, 365 Mich. 396, 400, 112 N.W.2d 503 (1961). It is beyond dispute that this is a permissible government purpose. Thus, under rational-basis review, the statute should be upheld unless allowing nonmodifiable support agreements where paternity has not been ascertained is "arbitrary and wholly unrelated in a rational way to the objective of securing support for children. Smith v Employment Security Comm., supra at 271, 301 N.W.2d 285.

In the context of a law created to secure child support from fathers, there is a core distinction between knowing who the child's father is and not knowing who the child's father is. Absent the disputed law, children whose paternity could not be determined had no means of obtaining support from their fathers. MCL 722.713; MSA 25.493 directly addressed the proof problem present in child support cases involving illegitimate children by providing an additional method by which illegitimate children could obtain financial support, again, a permissible, and even compelling government interest. See Clark, supra at 461, 108 S. Ct. 1910.

As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement. See Shapiro, Reifler, & Psome, The DNA paternity test: Legislating the future paternity action, 7 J Law & Health 1, 29 (1992-93) (current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. See Blakesley, Scientific testing and proof of paternity: Some controversy and key issues for family law counsel, 57 La L R 379, 382 (1997) ("In fact, since its first reported results in 1985, DNA matching has progressed to `general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. See Illinois Family Study Commission, Report and Recommendations to the 76th General Assembly (1969), at 55 (finding that paternity actions at the time were often rife with coercion, corruption and perjury). Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man—the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof. The procedure established by the Paternity Act provided a voluntary and additional alternative to the often uncertain paternity suit process by which a mother could obtain support for her illegitimate child.

In light of the pre-DNA proof problems associated with proving paternity, the availability of nonmodifiable child support specified by the Paternity Act promotes the principal purpose of the act, i.e., to ensure that minor children born outside a marriage are provided with support and education. Whybra, supra. The statute in question takes cognizance of perhaps the central distinction between illegitimate and legitimate children—the formers' reduced lack of certainty regarding their paternity. By recognizing this reality, and seeking to ameliorate its consequences, the statute, as applied, is rationally related to the state's interest in ensuring that illegitimate children are provided support. For these reasons, we conclude that the disputed statute satisfies a rational-basis standard of review.^[12]

B. Heightened scrutiny satisfied

In Gomez, supra at 538, 93 S. Ct. 872, the United States Supreme Court acknowledged that treating illegitimate children differently might be appropriate under some circumstances, due to the "lurking problems with respect to proof of paternity." See also Clark, supra at 461, 108 S. Ct. 1910. The very existence of an "intermediate" level of review, i.e., a standard of review more respectful of legislative distinctions than with regard to the most highly suspect categories of race, nationality, and ethnicity, represents an implicit acknowledgment that there are some immutable distinctions between various classes of persons, and that it is sometimes within the Legislature's prerogative to address those distinctions, even where the result is dissimilarity of treatment. For example, legislation addressing some aspect of pregnancy and childbirth does not violate equal protection merely because it differentiates on the basis of gender. Geduldig, supra at 496, n. 20, 94 S. Ct. 2485. Rather, such legislation would be in direct response to an immutable difference between men and women—the biological ability to bear children. See also Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981)(holding that women were not similarly situated to men for purposes of a draft or registration for a draft).

Providing financial support for children is a permissible, important, and even compelling governmental interest. A core distinction between legitimate and illegitimate children is the difficulty of determining paternity of the latter with the same level of certainty that paternity can be ascertained with respect to the former. And where paternity is uncertain—again, one of the immutable distinctions between legitimate and illegitimate children—providing an alternative means of obtaining child support to mothers who may not otherwise be able to prove paternity is substantially related to the goal of providing children with support. This is particularly true with respect to the instant case, where the parties entered into their agreement at a time in which plaintiff faced significant obstacles to overcoming defendant's claim that he was not the child's father. The lack of modern DNA testing when these parties entered their settlement underscores that the statute, as applied in this case, did not violate the constitutional guarantees of equal protection. See, e.g., Lino, supra at 570-571, 527 N.W.2d 434. The possibility of nonmodifiable child support held out by M.C.L. § 722.713; MSA 25.493 provided an incentive for a putative father of an illegitimate child not to dispute paternity. This furthered the important governmental objective of ensuring financial support for children who otherwise may have gone without any form of "paternal" child support.^[13]

The dissents rely on Gerhardt v. Estate of Moore, 150 Wis. 2d 563, 441 N.W.2d 734 (1989), as support for the conclusion that the disputed statute was unconstitutional under intermediate scrutiny. Op., at 237 (Kelly, J., dissenting); op., at 240 (Weaver, C.J., dissenting). However, as the dissent in Gerhardt notes, there is an important distinction between the facts in Clark, supra, and the facts in Gerhardt:

Where the statute of limitations in Clark, according to the Supreme Court, might prevent a mother from bringing a support claim on behalf of the nonmarital child because she might not act to protect the child's interest in a timely manner, the settlement provision of the Wisconsin Statutes at issue in this case encourages her to do so. [ Id. at 578, 441 N.W.2d 734 (Callow, J., dissenting).] Likewise, M.C.L. § 722.713; MSA 25.493 did not operate to "prevent a mother from bringing a support claim on behalf of [her] nonmarital child." Rather, it operated as an incentive to those mothers who might have otherwise been reluctant or unable to invoke the paternity process in the face of highly uncertain prospects. Thus, the Wisconsin statute, and the statute before us, operated, not as a burden, as suggested by Justice Kelly, op., at 236, n. 5 (Kelly, J., dissenting), but as a benefit.

Even presuming, however, that Gerhardt was correctly decided, that case is clearly distinguishable on its facts. First, the statute challenged in Wisconsin allowed nonmodifiable settlement agreements in all paternity actions, regardless of whether paternity had been admitted or ascertained by the court.^[14] Contrary to Justice Kelly's conclusion, this is a distinction with a crucial difference. See op., at 238-239, n. 10 (Kelly, J., dissenting). MCL 722.713; MSA 25.493, allows nonmodifiable support agreements only where paternity has not been ascertained, a distinction illustrating the clear relationship between the Michigan statute and paternity proof problems. Second, the defendant in Gerhardt acknowledged paternity. Id. at 566, 441 N.W.2d 734. It is true, as Justice Kelly observes, that the Wisconsin Supreme Court did not consider the defendant's admission of paternity in reaching its decision. Op., at 238-239, n. 10 (Kelly, J., dissenting). We point out however, that in Michigan, once a putative father has acknowledged paternity, his child is entitled to fully modifiable support, just as any other child whose paternity has been ascertained. MCL 722.1004; MSA 25.604. It is only where paternity is uncertain that nonmodifiable child support is allowed.^[15] Thus, if we were faced with the same facts as those before the Wisconsin Supreme Court, we cannot say whether we would reach a different conclusion. Clearly, under Michigan law, a defendant similarly situated to the defendant in Gerhardt, that is, one who has made a legal acknowledgment of paternity, would be required to provide fully modifiable child support, and the case would not be before us—a distinction with a clear difference.

It is true that, in this case, M.C.L. § 722.713; MSA 25.493 was given continued application even after the advent of modern DNA testing.^[16] However, at least in the context of a case in which the settlement agreement pertaining to support for an illegitimate child was entered before the advent of modern DNA testing, important governmental interests are clearly served by continuing to give force to the agreement even after the advent of such testing. The most obvious interest is allowing parties to an agreement to order their conduct in reliance upon such agreements, and maintaining the integrity of such agreements. In this and in countless similar cases, parties entered into nonmodifiable settlement agreements that were expressly approved by a circuit court judge. The putative fathers in such cases were, in effect, promised by a trial court judge that the level of child support imposed upon them would not be increased above the amount provided for in the settlement agreement. To allow these understandings to be altered years later, even on the basis of technological advances, could only be expected to undermine confidence in the legitimacy and fairness of a legal system that promised these individuals one thing, but then later changed the rules of the game. Moreover, if we were to allow these promises to be avoided where technological advances could be utilized, to prove paternity, we would also, in fairness, need to allow such promises to be avoided where technological advances could be utilized to disprove paternity.

It is critical to recognize that this is not a statute designed to impose burdens upon illegitimate children for the behavior of their parents, or even to discourage sexual relations outside the institution of marriage or otherwise influence societal norms. Rather, it is designed to address paternity proof problems in the support context—an important governmental interest, repeatedly sanctioned by the United States Supreme Court—in order to afford the mother of an illegitimate child the opportunity to bind the child's putative father to a support order, without a final determination of paternity, and thereby to afford enhanced opportunities for the support of illegitimate children. We do not conclude, as Justice Kelly contends, that these benefits "[outweigh] the substantial interest our state has in ensuring that our youngsters receive adequate support throughout childhood." Op., at 239, n. 10. Rather, we conclude that these benefits themselves directly address "the interest our state has in ensuring that our youngsters receive adequate support throughout childhood." They do so by providing additional opportunities to obtain that support to children who might otherwise be denied any support whatsoever.

Nor can we altogether ignore the fact that the instant statute does not compel mothers to agree to nonmodifiable support. Rather than denying illegitimate children the right of support from their fathers, the statute provides illegitimate children, through their mothers, a voluntary and additional optional mechanism for obtaining support—a compromise in exchange for the significant risk that the mother would lose the case and the child would receive no support whatsoever. Nonmodifiable support agreements, along with modifiable support agreements, are available, not required, under the statute, and are only enforceable where the court has otherwise determined that the agreements provide sufficient support for the child. Again, this is not a case in which the state "posit[ed] a judicially enforceable right of children to support from their natural fathers," but denied that same right to illegitimate children. Mills, supra at 92, 102 S. Ct. 1549, citing Gomez, supra.

The dissenting opinions conclude that the statute, rather than providing an additional opportunity for illegitimate children to obtain support, actually operates to their detriment because it precludes modification of child support. However, this conclusion not only fails to take into consideration the practical problems confronting the mother of the illegitimate child in proving paternity before the advent of DNA testing, but also fails to consider that modification of child support is based on more than merely the child's needs. In determining whether modification is warranted, the courts are required to take into consideration, not only the child's needs, but also the father's financial circumstances. Although recipients of nonmodifiable support may be precluded from obtaining an increase in support, they are also precluded from suffering a reduction in support. Even more consequentially, of course, absent the statute, the recipients of nonmodifiable support are "precluded" from being denied support altogether, such as where the mother was unable to overcome problems in proving paternity that existed before DNA testing. Moreover, putative fathers who agreed to nonmodifiable support are precluded from taking advantage of advances in technology to disprove paternity, just as the mothers are to prove paternity.^[17] Finally, we emphasize again that nonmodifiable support agreements are only enforceable when a court has determined that they satisfactorily provide for the child. While the courts certainly cannot anticipate every need and every change in the child's circumstances, these agreements have presumably been analyzed in the light of their ability to adequately provide for the child throughout childhood.

Because the statute is substantially and directly related to the general goal of obtaining child support for illegitimate children, and because it is substantially and directly related to the state's legitimate concern regarding proof problems in the child support context, we find that it is not an unconstitutional denial of equal protection under the law, regardless of whether the rational basis or intermediate standards of review are employed.

VI. Conclusion

There are alternative ways of characterizing the classifications created by the instant statutory provision. One reasonable characterization is that this statute distinguishes between children whose paternity has not been ascertained and children whose paternity has been ascertained. Alternatively, the classifications created by the challenged statute could reasonably be characterized as being based on illegitimacy because the statute only affects children born out of wedlock.

Viewing the challenged statute as one which merely differentiates on the basis of whether paternity has been ascertained, we find that the statute is rationally related to the legitimate state interest of ensuring that minor children born out of wedlock are provided with support and education. Moreover, viewing the challenged statute as one that distinguishes children on the basis of illegitimacy, we find that the statute's purpose of providing support for illegitimate children is an important, and even compelling, state interest and that the challenged statute, as applied, substantially and directly advances this important interest by providing an avenue to avoid problems associated with proving paternity, yet still provide support for the child.

Therefore, we find that, regardless of this Court's characterization of the classifications created by the challenged statute, the statute does not violate the constitutional guarantees of equal protection of the law. We reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

TAYLOR, CORRIGAN, and YOUNG, JJ., concurred with MARKMAN, J.

MARILYN J. KELLY, J. (dissenting).

The Paternity Act, before being amended, impermissibly discriminated against illegitimate children by denying them the opportunity accorded legitimate children for modification of agreements providing for their support.^[1] "[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally." Gomez v. Perez, 409 U.S. 535, 538, 93 S. Ct. 872, 35 L. Ed. 2d 56 (1973). Therefore, I would affirm the Court of Appeals decision and remand the case for further consideration of the parties' arguments pertaining to retroactivity.^[2]

Section 3 of the statute at issue provided:

a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.

b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child. [Emphasis added.]

A

Plaintiff brought an equal protection challenge to § 3. As the majority has indicated, any one of three different standards of review applies to equal protection challenges, depending on the nature of the alleged classification. Op., pp. 223-224.

I disagree with the majority's holding that it is equally reasonable to apply the rational basis standard of review to § 3 as to apply an intermediate or heightened scrutiny standard. Op., p. 226. Intermediate or heightened scrutiny applies to claims of disparate treatment based on the legitimacy or illegitimacy of a person. Mills v. Habluetzel, 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982); Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983).

The majority states that one could reasonably characterize § 3 as treating children differently on the basis of whether paternity has been established. Op., p. 227. That view focuses on the fact that illegitimate children whose paternity has been established are not affected by the statute. Then, it supports a rational basis standard of review, because a classification based on paternity invokes neither intermediate nor strict scrutiny. See Plyler v. Doe, 457 U.S. 202, 216-217, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982)(identifying situations in which strict scrutiny applies); Mills, supra (identifying situations in which intermediate scrutiny applies).

The majority's view is flawed. It is unreasonable to find that the statute did anything except distinguish the treatment of children on the basis of legitimacy. Although not all illegitimate children received disparate treatment under § 3, the dominant reality is that illegitimate children, and they alone, received disparate treatment. The majority acknowledges that "[t]here is no apparent set of circumstances under which a legitimate child would be the object of an enforceable, nonmodifiable support agreement." Op., p. 227.^[3]

The United States Supreme Court has held intermediate or heightened scrutiny to apply under similar circumstances. Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988); see also Williams v. Lambert, 902 F. Supp. 460 (S.D.N.Y., 1995); Gerhardt v. Estate of Moore, 150 Wis. 2d 563, 441 N.W.2d 734 (1989). In Clark, the Court considered a Pennsylvania statute that required illegitimate children to prove paternity before seeking support from their fathers. It required that a suit to establish paternity be brought within six years of the children's birth. Clark, supra at 457, 108 S. Ct. 1910.

In contrast, legitimate children could seek support from their parents at any time. Id. The statute did not affect all illegitimate children by blocking their attempts to obtain support from their fathers. It affected only those illegitimate children who had not established paternity within six years of birth.

Thus, as here, children could have been identified as those whose paternity had been determined and those whose paternity had not. However, the Court was not concerned about that fact, instead it applied intermediate scrutiny to a review of the statute. It stated:

"First, the period for obtaining support... must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims." [Clark, supra at 462, 108 S. Ct. 1910, quoting Mills, supra at 99-100, 102 S. Ct. 1549 (emphasis added).]

The Court held that the statute was unconstitutional on the basis that it was not substantially related to an important state interest. Id. at 464, 108 S. Ct. 1910.^[4]

I reach the same conclusion as did the United States Supreme Court in Clark. Even though § 3 did not include every illegitimate child, intermediate scrutiny must apply where the statute affected any child's right to receive parental support on the basis of illegitimacy. Accordingly, intermediate or heightened scrutiny should be the only standard used in considering the constitutionality of § 3. Clark, supra at 461, 108 S. Ct. 1910.^[5]

B

In order to survive intermediate scrutiny, a statute that results in the treatment complained of must be "substantially related to an important governmental objective." Clark, supra at 461, 108 S. Ct. 1910. The majority attempts to show that, even when intermediate scrutiny is applied, § 3 passes constitutional muster. Op., p. 234. It relates the important government objective of § 3 to address paternity proof problems in the support context ... in order to afford the mother of an illegitimate child the opportunity to bind the child's putative father to a support order, without a final determination of paternity, and thereby to afford enhanced opportunities for the support of illegitimate children. [Op., p. 232.]

I recognize the importance of the state's interest in enhancing the opportunity for illegitimate children to obtain support from their fathers. However, I disagree with the majority that § 3 is substantially related to that purpose.

While the Supreme Court in Clark did not rest its decision on such grounds, it recognized that the need for child support changes over time.

A mother might realize only belatedly "a loss of income attributable to the need to care for the child," Pickett, supra, [p. 12, 103 S. Ct. 2199]. Furthermore, financial difficulties are likely to increase as the child matures and incurs expenses for clothing, school, and medical care.... Thus it is questionable whether a State acts reasonably when it requires most paternity and support actions to be brought within six years of an illegitimate child's birth. [ Clark, supra at 463-464, 108 S. Ct. 1910.]

How much more unreasonable is it for a state to preclude any modifications to support agreements entered into shortly after a child's birth in light of those same factors? The Wisconsin Supreme Court answered that question when it decided the case of Gerhardt, supra, on remand from the United States Supreme Court for reconsideration in light of Clark.^[6]

In Gerhardt, the Wisconsin Supreme Court considered a statutory provision that authorized lump-sum payments to encourage the settlement of paternity cases. The provision forbade the revision or alteration of such settlements, unless the father failed to comply with their terms. Gerhardt, supra at 571, 441 N.W.2d 734.^[7] The court concluded:

Because marital children are not precluded from seeking additional child support notwithstanding a prior court order setting the amount of support, we conclude that prohibiting nonmarital children involved in lump-sum settlement agreements from seeking additional support amounts to a denial of equal protection. [ Id. at 565, 441 N.W.2d 734.]

In Gerhardt, the defendant argued, as the majority concludes here, that the statutory provision gives illegitimate children an additional option in the form of a lump-sum settlement provision. Id. at 571, 441 N.W.2d 734; op., p. 233. The Gerhardt court, however, recognized the error in that argument.

[I]t is an option that has in reality worked to the detriment of many nonmarital children. It is, at best, an illusory benefit amounting to no benefit at all. It is, in reality, an additional burden. Similar to the procedural bars invalidated in the Clark line of cases, the lump-sum settlement provision deprives certain nonmarital children the opportunity to obtain adequate support. Although Clark and the cases cited therein deal with statutory limitation bars to the filing of actions, the bar to seeking additional child support that results from a lump-sum agreement works in precisely the same manner. Regardless of the label attached to the statutory bar, the result is the same. The nonmarital child, unlike the marital child, is barred from seeking additional support, regardless of need. That is hardly fair to the nonmarital child, much less constitutional. That is what the United States Supreme Court recognized in remanding this action, and that is what we recognize today. [ Id. at 571-572, 441 N.W.2d 734 (emphasis added).]^[8]

I agree with the Wisconsin Supreme Court that statutes such as § 3 violate an illegitimate child's right to equal protection of the law. Similar to the Wisconsin statute, § 3 actually limited the opportunities for illegitimate children to receive support from their putative fathers. It did so by foreclosing any opportunity for support orders to be modified beyond what was agreed to under conditions very likely unfavorable to both mother and child.^[9] It is unreasonable to believe that an agreement entered into at the onset of a child's life can accurately anticipate and provide for all the contingencies that child will face until reaching adulthood. Thus, I conclude that § 3 worked against and failed to be substantially related to the state's interest in procuring adequate child support for illegitimate children.^[10]

In a somewhat analogous situation, our Court of Appeals declared that a noncustodial father could not avoid his obligation to support his child by voluntarily terminating his parental rights. Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328 (1995). It recognized that "[a] child has an inherent right to parental support" and "parents may not bargain away a child's right to receive adequate support." Id. at 175-176, 542 N.W.2d 328 (citations omitted):

To accept defendant's position would be to allow a parent to voluntarily release parental rights in order to escape the child support obligation where the child remains in the custody of the other biological parent. Such a result is not supported by statute, case law, or sound public policy. [ Id. at 176, 542 N.W.2d 328.]

CONCLUSION

In this case, § 3 of the Paternity Act presented a father with the same opportunity, that of evading his child support obligation, as was rejected by the Court of Appeals in Evink. The act allowed a father to voluntarily enter into a child support agreement that the mother could not modify, even if the child's needs increased. The act allowed a father to escape his responsibility to provide for his child, and the child was deprived of that to which it was entitled.^[11] No similar "loophole" exists in the law for the benefit of fathers of legitimate children.

Accordingly, I conclude that § 3 violated the right of illegitimate children to equal protection under the law. In so doing, I align myself with the position of three different panels of the Court of Appeals,^[12] the Illinois Supreme Court,^[13] and the Wisconsin Supreme Court.^[14] The majority decides to proceed down a different path. I would affirm the judgment of the Court of Appeals and remand for further consideration of the parties' arguments concerning retroactivity. I cannot follow the majority down a path that leads to a position contrary to the constitution.

MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.

WEAVER, C.J. (dissenting).

I respectfully dissent from the majority's conclusion that M.C.L. § 722.713; MSA 25.493 did not violate equal protection. I believe that the statute creates a classification based on illegitimacy and that the statute cannot withstand the heightened scrutiny applied to such a classification. Therefore, I would affirm the Court of Appeals.

Because there are situations in which illegitimate children receive a right to modifiable support, the majority opines that this statute does not create a classification based on illegitimacy, but one based on whether "paternity ha[s] been legally determined." Op. at 226. I disagree.

Children have a right to support from their biological parents. See Evink v. Evink, 214 Mich.App. 172, 175-176, 542 N.W.2d 328 (1995). As the majority acknowledges, M.C.L. § 722.713; MSA 25.493 affects only the right of illegitimate children, precluding them from obtaining additional support to meet changing needs where the parties have reached a settlement agreement pursuant to the statute. By contrast, there are no circumstances under which a legitimate child would be foreclosed from petitioning for future modification of child support. Pursuant to M.C.L. § 552.17(1); MSA 25.97(1), children of divorced couples may petition the court to modify a support award upon demonstrating changed circumstances, and the parents cannot bargain away the right to seek modification of support. See Calley v. Calley, 197 Mich.App. 380, 382, n. 1, 496 N.W.2d 305 (1992); Johns v. Johns, 178 Mich.App. 101, 106, 443 N.W.2d 446 (1989). Therefore, I would conclude that the statute classifies children on the basis of illegitimacy and not on the basis of whether paternity has been legally determined.

Classifications based on illegitimacy are subject to heightened scrutiny. Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988); Spada v. Pauley, 149 Mich.App. 196, 203, 385 N.W.2d 746 (1986). To withstand heightened scrutiny, the statutory classification must be substantially related to an important governmental objective. Clark, supra at 461, 108 S. Ct. 1910. This level of scrutiny "is not a toothless one." Pickett v. Brown, 462 U.S. 1, 8, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983), quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976). MCL 722.713; MSA 25.493 fails to satisfy this standard.

In upholding the statute, the majority concludes that the statute is substantially related to the "permissible, important, and even compelling governmental interest" of providing financial support for children. Op., at 230. The majority reasons that the statute affords illegitimate children an "additional optional mechanism for obtaining support" by allowing the parties to circumvent the proof problems that may arise in paternity cases. Op., at 233. I disagree.

I recognize that the problems in proving paternity distinguish legitimate children from illegitimate children in their claims for child support. However, this justification is neither "sufficiently weighty nor substantially related to the limitation" to uphold M.C.L. § 722.713; MSA 25.493 under equal protection. Mills v. Habluetzel, 456 U.S. 91, 102, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982) (O'Connor, J., concurring).^[1] Nor are the state's interests in settlement and finality sufficient to justify a classification based on illegitimacy.

As noted earlier, children have a right to support. Evink, supra at 175-176, 542 N.W.2d 328. However, rather than operate as an additional mechanism for support, the statute, in reality, imposes a burden on illegitimate children by restricting their ability to obtain adequate support. The Wisconsin Supreme Court made a similar conclusion when striking down a statutory scheme that precluded illegitimate children involved in lump-sum settlement agreements from seeking additional support, stating,

[I]t is an option that has in reality worked to the detriment of many nonmarital children. It is, at best, an illusory benefit amounting to no benefit at all. It is, in reality, an additional burden. [Gerhardt v. Estate of Moore, 150 Wis. 2d 563, 571, 441 N.W.2d 734 (1989).]

The possibility that children may encounter circumstances that alter their need for support does not vary between illegitimate and legitimate children. Both may encounter circumstances that give rise to a need for increased support. Yet, in the case of illegitimate children, they may be deprived of the opportunity to seek increased support on the basis of changed circumstances because their parents entered an agreement, pursuant to the statute, that precludes modification. Thus, the statute actually operates to their detriment.

In my opinion, neither proof problems nor the interests of settlement and finality outweigh the irrevocable and potentially damaging effect that a nonmodifiable settlement may have on the changing financial needs of illegitimate children. Consequently, the statute is not substantially related to the supposed interest it seeks to serve-namely, providing an additional mechanism for obtaining support for illegitimate children-and it should be determined to be violative of equal protection.

NOTES

[1] The Legislature repealed the statute effective June 1, 1997, after a Court of Appeals decision finding the statute unconstitutional. Dones v. Thomas, 210 Mich.App. 674, 534 N.W.2d 221 (1995).

[2] This order was not signed by the parties, nor did their attorneys approve the order as to form or substance. We express no opinion regarding the effect of this circumstance.

[3] MCR 7.215(H)(1) requires that, "A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule."

[4] Although the statute referred to an agreement reached with "the father" concerning child support, that language should be read to mean "putative father." The disputed provision only applied when a paternity suit had been filed, but a paternity determination had not yet been made. Common sense requires us to read this language to mean the "putative father," as no determination of paternity has been made when a paternity complaint is initially filed. Additionally, the statute appears to use the term "putative father" interchangeably with "father."

[5] This presumption is rebuttable. The Paternity Act is applicable where the presumption has been successfully rebutted.

[6] In Feeney, supra, for example, the Supreme Court faced the difficulties in the characterization of a statute when female plaintiffs challenged a law granting veterans preferences with regard to state civil service hiring decisions. 442 U.S. at 259, 99 S. Ct. 2282. Because the law operated overwhelmingly to the advantage of male applicants, the plaintiffs characterized the preference as impermissibly creating a classification on the basis of gender. However, the Court ultimately chose to characterize the preference as one creating a classification on the basis of one's status as a veteran. In other words, the Court determined that, even though significantly more men than women were being granted a benefit by the preference, the law was properly characterized as one granting veterans, regardless of gender, a benefit over nonveterans. Rather than distinguishing between persons on the basis of gender, the law distinguished between job applicants on the basis of nongender considerations.

[7] A classification based on whether paternity has been determined neither implicates a fundamental right or an inherently suspect class, nor has it been recognized by this Court or the United States Supreme Court as deserving of any heightened standard of review. Moreover, the parties have provided no reason we should now create a new category of suspect class.

[8] Superseded by statute as noted in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678, 103 S. Ct. 2622, 77 L. Ed. 2d 89 (1983).

[9] We emphasize again that we do not necessarily disagree with the dissents that the statute may also reasonably be characterized as one that creates classifications on the basis of illegitimacy. Rather, we merely acknowledge that, just as it is not unreasonable to characterize a statute relating to pregnancy in more than one manner, it is not unreasonable to characterize the statute here in more than one manner. Because we find that the statute, as applied, was constitutional under either characterization, we need not decide which of these characterizations is more appropriate.

[10] The Paternity Act applies to children born during wedlock who are later deemed not to be the issue of the marriage. Thus, these children would be classified also as "illegitimate." MCL 722.713; MSA 25.493.

[11] Neither Mills nor Clark require us to reach the conclusion that the statute challenged here created classifications on the basis of illegitimacy; in neither of those cases did the Court address the threshold question whether the challenged statutes actually created classifications on the basis of illegitimacy; The dissent states, "I conclude that the [ Clark] Court did find that the statute created a classification on the basis of legitimacy." Op., p. 236, n. 4 (KELLY, J., dissenting). However, Justice Kelly reaches this conclusion, not because the Court expressly decided that the statute created classifications on the basis of illegitimacy, but rather because the Court examined the statute under intermediate scrutiny. We find the dissenter's analysis flawed. In both Mills and Clark, the Supreme Court was examining statutory periods of limitation applicable to all illegitimate children. Unlike the statute before us, the statutes challenged in Mills and Clark imposed a requirement on all illegitimate children—either ascertain paternity within the allotted time frame or be forever precluded from access to child support. So even though we conclude, for argument's sake, that the statutes in Mills and Clark, as applied, could be characterized as creating classifications either on the basis of illegitimacy or on the basis of whether paternity had been determined, there are significant differences between those cases and the instant case that could lead the same court to opposite results. Specifically, the statutes challenged in Mills and Clark created a mandatory prerequisite to child support for all illegitimate children—prove paternity within the period of limitation. By contrast, the instant statute created options—prove paternity, obtain a nonmodifiable support agreement, or even obtain a modifiable support agreement. Consequently, even if we were to agree that the Supreme Court reached a decision that it did not expressly address, and even if we were to agree that such implicit decision making was binding on this Court, Mills and Clark do not require a conclusion that the challenged statute creates an illegitimacy-based classification; those cases are readily distinguishable from the instant case on their facts.

Even more importantly, the Clark Court was careful to point out that statutory classifications based on illegitimacy designed to punish the conduct of parents were different than statutory classifications based on illegitimacy designed to address paternity proof problems in the support context. Clark, supra at 461, 108 S. Ct. 1910. The disputed statute here, to the extent that it treated illegitimate children differently than legitimate children, addressed the latter issue. That is, the challenged statute provided an alternative means of obtaining support for a child where paternity was uncertain.

[12] Even recognizing that DNA testing can conclusively establish paternity, and that the unreliability of testing is no longer the obstacle that it once was in paternity suits, this does not altogether eliminate "proof" problems in the context of paternity suits. Proving paternity involves not only the technical and scientific elements of establishing a genetic relationship, but also a variety of other legal and practical burdens, including the necessity of identifying and locating the putative father, the need to obtain and enforce court orders requiring paternity testing, the emotional and psychological burdens associated with trial, the inevitable uncertainties of the legal process, and, while perhaps increasingly remote, problems associated with obtaining reliable test results. Each of these steps to proving paternity can involve significant resources, in terms of time, effort, and money. Moreover, there may conceivably be circumstances in which ascertaining paternity through the legal process may not always be in the child's own best interest, even where such paternity could be proven conclusively from a scientific standpoint.

[13] Justice Kelly compares the instant case to Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328 (1995), a case in which the Court of Appeals obviated a father's attempt to avoid his child-support obligations through voluntary termination of his parental rights. However, this case illustrates precisely why it may be appropriate in some cases to treat legitimate and illegitimate children differently. A child's absolute right to receive child support from a father only has value where paternity can, in fact, be ascertained. A child does not have an absolute right to receive child support from a putative father. The case before us is not a case in which a known parent has been allowed to "voluntarily release parental rights in order to escape the child support obligation...." Id. at 176, 542 N.W.2d 328. Rather, this is a case in which a child of uncertain paternity was provided with a means of obtaining child support from a person who, because of evidentiary limitations, might otherwise have avoided any obligation to pay child support. An analogy between Evink and the instant case fails for the same reason that the challenged statute is constitutional—unavoidably there are immutable differences between legitimate and illegitimate children. Ascertaining paternity with certainty is such a difference.

[14] "If the defendant is found the father of the child, or admits the truth of the allegation, or enters into a settlement agreement, he shall be adjudged to be the father of such child, unless paternity is denied in such settlement agreement,...." Madison General Hosp. v. Haack, 124 Wis. 2d 398, 410, n. 7, 369 N.W.2d 663 (1985), quoting St 1975, § 52.37(1). See also Larson v. Wisconsin Dep't of Industry, Labor & Human Relations, 76 Wis. 2d 595, 618-619, 252 N.W.2d 33 (1977).

St 1967, § 52.38 provided for modification of settlement agreements entered pursuant to St 1975, § 52.37 only if the father (or putative father) failed to comply with the terms of the settlement, or where the settlement agreement" providing for the monthly support of a child born out of wedlock has been docketed or filed ..." Gerhardt, supra at 573, 441 N.W.2d 734, quoting St 1967, § 52.38.

[15] Justice Kelly also cites Dep't of Public Aid ex rel. Cox v. Miller, 146 Ill. 2d 399, 166 Ill. Dec. 922, 586 N.E.2d 1251 (1992), and suggests that the Illinois Supreme Court, in order to "salvage" an otherwise unconstitutional statute similar to the challenged statute here, interpreted a provision allowing illegitimate children the continuing right to file an action to ascertain paternity as also allowing those children to seek modification of nonmodifiable support agreements. Op., at 238, n. 8 (Kelly, J., dissenting). Regardless of the Illinois Supreme Court's dicta regarding what it would or would not find constitutional under facts not before it, the challenged statutory scheme in that case allowed an illegitimate child to file a paternity action at any time. The Illinois court relied on the express language of the state's Paternity Act to conclude that whenever paternity was ascertained, the child was entitled to the same right to modifiable child support as legitimate children. Miller, supra at 411, 166 Ill. Dec. 922, 586 N.E.2d 1251, quoting Ill Rev Stat 1983, ch 40, par 1352, "The father of a child born out of wedlock whose paternity is established in a proceeding under this Act shall be liable for its support ... to the same extent and in the same manner as the father of the child born in lawful wedlock...." Although the court expressed its opinion with respect to the constitutionality of a hypothetical statute that precluded modification, there is no indication in its opinion that it relied on anything but the plain language of the statutory scheme and legislative intent to determine that the statute allowed complete modification any time that paternity was ascertained and that a nonmodifiable settlement agreement did not bar a suit to ascertain paternity. Id. at 412, 166 Ill. Dec. 922, 586 N.E.2d 125) ("To find otherwise would be to denigrate the clearly expressed intent of the legislature as well as the public policy of the State"). The mere fact that an appellate court had interpreted the statute differently does not mean that "the statute did not allow modification of child support agreements until the court interpreted it to do so." Op., at 238, n. 8 (Kelly, J., dissenting). Rather, the Illinois court found that the Paternity Act, as written and as the legislature had intended, allowed modification of child support any time that paternity could be determined. Consequently, that court's determination of the constitutionality of a dissimilar statutory scheme is of little value.

[16] For purposes of the instant case, we need not decide whether M.C.L. § 722.713; MSA 25.493, had it not been repealed, would remain constitutional today under intermediate scrutiny.

[17] Justice Kelly finds this statement unpersuasive because of the judiciary's underlying goal of "ascertaining the truth." While this is true, the Legislature, in its enactment of the law, also has other objectives, in particular ensuring that illegitimate children are supported. At the time the instant agreement was entered into, the judicial system was less able to ascertain the truth concerning matters of paternity than it might be today. The mothers who entered into the agreements provided for by M.C.L. § 722.713; MSA 25.493 accepted nonmodifiable support to avoid the risk of receiving no child support whatsoever, in the event of their inability to convince the court that the putative father was, in fact, the biological father. Moreover, they avoided the risk of receiving a reduction in child support in the event that the child's needs and the parties' financial situation warranted such reduction, and they also avoided the risk that the putative father could, with advances in technology, eliminate child support altogether. Similarly, the putative fathers agreed to nonmodifiable support to avoid the risk of the court determining—perhaps incorrectly, and certainly not with scientific certainty—that they were the biological fathers. The goal of ascertaining the truth is not compromised when parties, recognizing the strengths and weaknesses of the proofs available in their situation, agree to make concessions so that each might avoid unnecessary risks. Here, the Legislature has allowed, and the parties have agreed, that a given child should receive child support from the putative father even without judicial ascertainment of the truth particularly where, as here, the judiciary lacked the means by which to ascertain this with any genuine degree of certainty.

[1] MCL 722.713; MSA 25.493 was part of the Paternity Act, M.C.L. § 722.711 et seq.; MSA 25.491 et seq. It was repealed by the Legislature, effective June 1, 1997, after the Court of Appeals declared it unconstitutional in Dones v. Thomas, 210 Mich.App. 674, 534 N.W.2d 221 (1995). See 1996 PA 308.

[2] I do not treat the arguments concerning retroactivity, because that issue was not considered by the Court of Appeals majority in this case. 232 Mich.App. 284, 297, 591 N.W.2d 277 (1998) (Fitzgerald, J., concurring) (Crego III).

[3] The Paternity Act's description stated that its provisions only apply to illegitimate children: "An act to confer upon circuit courts jurisdiction over proceedings to compel and provide support of children born out of wedlock...." 1956 PA 205 preamble.

[4] The majority states that, in Clark, the Court never determined whether the challenged statute actually created a classification on the basis of illegitimacy. Op., p. 227 n. 11. It fails to recognize that there was no other issue in Clark that would have compelled the Court to apply the intermediate scrutiny standard of review. Thus, I conclude that the Court did find that the statute created a classification on the basis of illegitimacy.

[5] The majority quotes from Geduldig v. Aiello, 417 U.S. 484, 94 S. Ct. 2485, 41 L. Ed. 2d 256 (1974), to support its position. Op., p. 227. However, cases that have followed Geduldig indicate that it is not applicable here. See Eberts v. Westinghouse Electric Corp., 581 F.2d 357, 360, n. 1 (C.A.3, 1978)("[ Geduldig] is an insurance case and simply allows the exclusion of pregnancy-related disabilities from an employer's disability benefits plan"). The Sixth Circuit wrote the following regarding the footnote now cited by the majority: "It is apparent from our reading of footnote 20 that the Court's observations are made in the particular and narrow confines of the state's power to draw flexible and pragmatic lines in the social welfare area." Satty v. Nashville Gas Co., 522 F.2d 850, 853 (C.A.6, 1975).

The United States Supreme Court, in affirming the Sixth Circuit decision in Satty, made the distinction between Geduldig and this case even more clear:

Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in [ General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976)(based on Geduldig) ], that [the statute] did not require that greater economic benefits be paid to one sex or the other "because of their differing roles in the `scheme of human existence,'"429 U.S. at 139, n. 17, 97 S. Ct. 401. But that holding does not allow us to read [the statute] to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role. [ Nashville Gas Co. v. Satty, 434 U.S. 136, 142, 98 S. Ct. 347, 54 L. Ed. 2d 356 (1977).]

Similarly, here, § 3 is not a statute that results in an underinclusive offering of insurance or social program benefits. Rather, § 3 imposes a burden on illegitimate children and their mothers by foreclosing any opportunity to modify child support agreements. See Gerhardt, supra at 572, 441 N.W.2d 734.

[6] The remand order appears at: Gerhardt v. Estate of Moore, 486 U.S. 1050, 108 S. Ct. 2814, 100 L. Ed. 2d 915 (1988).

[7] The Court stated the issue as follows: "[W]hether a statutory provision denying nonmarital children involved in lump sum child support settlements the ability to seek additional support from the father, a right not denied marital children, amounts to a denial of the equal protection of the law." Id. at 565, 441 N.W.2d 734.

[8] The Wisconsin Supreme Court is not alone in its conclusion. A New York federal district court believed that a New York appellate court would strike down a substantially similar New York statute on the basis of Clark or construe the statute so that it would permit an illegitimate child to seek modification of a support agreement. Williams, supra at 463, n. 5, 90 S. Ct. 1153.

The Illinois Supreme Court, on the basis of Clark and Gerhardt, took the second approach. In Dep't of Public Aid ex rel. Cox v. Miller, 146 Ill. 2d 399, 408-410, 166 Ill. Dec. 922, 586 N.E.2d 1251 (1992), that court considered "whether a settlement order and dismissal entered in a paternity action bar a subsequent action brought by or on behalf of the illegitimate minor for support." Id. at 403, 166 Ill. Dec. 922, 586 N.E.2d 1251. The court identified that previous appellate court decisions held that the Illinois Paternity Act did not " permit the mother, alleged father, or a public agency which has supported the child to bring an action after a court-approved settlement has been reached.'" Id. at 402, 166 Ill. Dec. 922, 586 N.E.2d 1251 (citation omitted). The court agreed with the analysis of Gerhardt. It held that equal protection of the law would be violated if illegitimate children were unable to seek modification of child support agreements when legitimate children had that opportunity. Id. at 411, 166 Ill. Dec. 922, 586 N.E.2d 1251. To salvage the statutory scheme, the court read the act to allow illegitimate children to bring an action to modify child support agreements. Contrary to the majority's assertion, the "plain language of the statutory scheme" allowed a child to bring an action at any time only to ascertain paternity. Id. It said nothing of a child's right to modify otherwise nonmodifiable support agreements. Id.

The majority attempts to discredit my citation to Cox by identifying it as dicta and trying to distinguish the instant case from it. See op., pp. 231-232, n. 15. In Cox, the statute did not allow modification of child support agreements until the court interpreted it to do so. That was in the face of a constitutional challenge on the basis of Clark and Gerhardt. Thus, the case is similar to the instant case, and its discussion of Clark and Gerhardt were essential to its resolution.

[9] The United States Supreme Court identified the difficult situation that a mother faces when deciding whether to file a paternity suit.

"It requires little experience to appreciate the obstacles to such suits that confront unwed mothers during the child's first year. Financial difficulties caused by childbirth expenses or a birth-related loss of income, continuing affection for the child's father, a desire to avoid disapproval of family and community, or the emotional strain and confusion that often attend the birth of an illegitimate child all encumber a mother's filing of a paternity suit...." [ Mills, supra at 103, 102 S. Ct. 1549.]

Those factors are present when an unwed mother must decide, shortly after her child's birth, whether to accept a settlement from the putative father. How could she be certain of the support needs of her and her child for the next eighteen years? See Cox, n. 8 supra at 407, 166 Ill. Dec. 922, 586 N.E.2d 1251. It is readily apparent that, under such circumstances, a mother and child may not receive the "enhanced opportunities" that the majority asserts § 3 provides to them. See op., p. 232.

[10] The majority fails to give appropriate weight to the fact that settlement agreements result in a burden on the mother and the child when they provide inadequate child support. See op., p. 231.

In addition, the majority attempts to draw a distinction between this case and Gerhardt because the statute in Gerhardt allowed nonmodifiable child support agreements in all paternity actions. Also, in Gerhardt, there was an admission of paternity. Id. Each is a distinction without a difference. The fact that the statute in Gerhardt applied to all paternity actions does not diminish the fact that both it and § 3 had disparate effects on illegitimate children. There is, as the majority asserts, a clear relationship in Michigan between our statute and paternity proof problems. However, it is also true that § 3 discriminates against illegitimate children in the same manner as the statute at issue in Gerhardt.

Neither is it of any significance that there was an admission of paternity in Gerhardt. That fact was irrelevant to the court's determination that the statute was not substantially related to an important government objective. Gerhardt, supra at 574, 441 N.W.2d 734; see also Cox, supra at 408, 166 Ill. Dec. 922, 586 N.E.2d 1251. One would expect that, had paternity not been admitted or established in Gerhardt, as it has not been here, the Gerhardt court would have reached the same conclusion.

In an effort to justify the statute, the majority reaches to find a benefit in the fact that "putative fathers who agreed to nonmodifiable support are precluded from taking advantage of advances in technology to disprove paternity, just as the mothers are to prove paternity." Op.,p. 233. I fail to see how that is a benefit, because one of our major goals is to ascertain the truth. The state clearly does not have a substantial state interest in furthering falsehood and avoiding the truth. Although the majority names additional benefits that the statute provides, none of them outweighs the substantial interest our state has in ensuring that our youngsters receive adequate support throughout childhood.

[11] Contrary to the assertion by the majority, Evink illustrates precisely why we should not allow illegitimate children to be burdened by nonmodifiable child support agreements. See op., p. 230, n. 13. The majority fails to acknowledge that a putative father may very well know that he is the father of a child. However, he may be able to profit from the difficult situation the mother faces to procure a settlement he finds favorable. The majority identifies the statute as providing an illegitimate child with an opportunity to obtain child support from someone who might not otherwise provide it. However, it also allows someone who might otherwise have been responsible for adequate child support to avoid that obligation.

[12] See Dones, n. 1 supra; Crego v. Coleman, 226 Mich.App. 815, 573 N.W.2d 291 (1997) (Crego II); Crego v. Coleman, n. 2 supra (Crego III).

[13] Cox, n. 8 supra.

[14] See Gerhardt, supra.

[1] A total of five justices joined this section of Justice O'Connor's concurring opinion. Mills, supra at 102, 102 S. Ct. 1549.