The due process clause of the Fourteenth Amendment to the federal Constitution, in its “substantive” aspect, protects fundamental liberties from state interference absent a compelling reason for the state’s action. At issue in this case is whether a biological father’s desire to establish a relationship with his child bom to a woman married to another man is a constitutionally protected fundamental liberty interest. I concur fully in the majority’s conclusion that, in the absence of any existing personal relationship with the child, a biological father lacks any constitutionally protected liberty interest. I write separately to note that there are additional grounds also supporting that conclusion.
I
This case involves Dawn, Dawn’s child conceived and bom during her marriage to her husband Frank, and Jerry, who alleges he is the biological father of Dawn’s child. Dawn and Frank have had exclusive custody of the child since birth, and Jerry has established no personal relationship with the child. Before birth, Jerry brought suit alleging that he is the biological father of Dawn’s child and seeking custody and visitation. As the majority explains, California law presumes that, because the child was bom during Dawn’s marriage to Frank, Frank is the father of Dawn’s child, and it precludes Jerry from bringing any legal action to challenge that presumption. (Fam. Code, §§ 7611, subd. (a), 7630, subd. (a).) Jerry contends nonetheless that he has a liberty interest protected by the due process clause of the United States Constitution in establishing a parental relationship with *945Dawn’s child. The trial court held that if Jerry was the biological father of Dawn’s child he had a substantive due process right to establish a relationship with the child, and on that basis ordered blood testing to determine whether Jerry was the biological father of Dawn’s child. The Court of Appeal denied without comment Dawn’s petition for a writ of mandate seeking to overturn the trial court’s ruling.
II
As the majority opinion explains, in Michael H. v. Gerald D. (1989) 491 U.S. 110, 124-127 [109 S.Ct. 2333, 2342-2344, 105 L.Ed.2d 91], seven justices of the United States Supreme Court concluded that, in the absence of any existing personal relationship with the child, a biological father’s desire to establish a relationship with his child bom to a woman married to another man is not a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment to the federal Constitution. But, even if the high court had not decided the question in Michael Ft. v. Gerald D. and we were free to consider the matter independently, I would still reach this same conclusion.
As the majority notes, in deciding whether an asserted interest is one of our fundamental rights and liberties substantively protected by the due process clause, a court must examine whether the interest, “ ‘careful[ly] described],’ ” finds support in our history, our traditions, and the conscience of our people. (Washington v. Glucksberg (1997)_U.S._,__[117 S.Ct. 2258, 2268, 138 L.Ed.2d 772]; accord, Reno v. Flores (1993) 507 U.S. 292, 303 [113 S.Ct. 1439, 1447-1448, 123 L.Ed.2d 1].) Here, there is no support in history or our legal tradition for Jerry’s claim that a biological father without any actual personal relationship with his child bom to a woman married to another man has a fundamental right to establish a relationship with the child. Indeed, history and tradition are directly to the contrary, for society has consistently denied to the biological father in these circumstances any opportunity to establish paternal rights over the child of another man’s wife. For centuries, there has existed the presumption of legitimacy: the legal presumption that a child bom during wedlock is the husband’s issue (absent proof of the husband’s impotence). (10 Am.Jur.2d (1963) Bastards, § 11, p. 851 [“The principle that children bom in wedlock are presumed to be legitimate is universally recognized.”].) Lord Coke stated the common law mle: “By the common law if the husband be within the foure seas, that is within the jurisdiction of the king of England, if the wife hath issue, no proofe is to be admitted to prove the child a bastard, . . . unlesse the *946husband hath an apparent impossibilitie of procreation.”1 (Coke on Littleton, Institutes of the Laws of England (1628) 244a [bk. 3, ch. 6, § 399].)
Like other jurisdictions, California has long recognized the presumption of legitimacy. In 1872, our Legislature codified the presumption as follows: If the husband and wife were cohabiting at the time of conception and the husband was not impotent, the presumption that the husband was the father was indisputable. (Code Civ. Proc., former § 1962, subd. 5, enacted 1872, amended by Stats. 1955, ch. 948, § 3, p. 1835, repealed by Stats. 1965, ch. 299, § 110, p. 1363, eff. Jan. 1, 1967 [“the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate”]; Estate of Mills, supra, 137 Cal. 298, 301-304.) A similar provision continues in our current Family Code. (Earn. Code, § 7540.) If the parents were married but not cohabiting at the time of conception, the presumption could be disproven, but only by a member of a narrow class of persons. (Civ. Code, former §§ 193, 195, superseded by Evid. Code, former § 661, enacted by Stats. 1965, ch. 299, § 2, p. 1310, repealed by Stats. 1975, ch. 1244, § 14, p. 3202; accord, Earn. Code, §§7611, subd. (a), 7630, subd. (a).) Most important, the group of persons with standing to disprove the presumption has always been limited to designated members of the marital family and their descendants, and an alleged biological father has never been permitted to challenge the paternity of a child bom into the marriage of a woman and another man. (Civ. Code, former §§ 193, 195 [permitting challenges only by the husband, wife, or their descendants]; Fam. Code, §§7611, subd. (a), 7630, subd. (a) [permitting challenges only by the husband, wife, or child]; see also In re Madalina (1917) 174 Cal. 693, 696 [164 P. 348, 1 A.L.R. 1629] [describing this refusal to permit outsiders to challenge the presumption of legitimacy as the “rule prevailing generally in all civilized communities”]; Michael H. v. Gerald D., supra, 491 U.S. 110, 124-126 [109 S.Ct. 2333, 2342-2343] (plurality opn. of Scalia, J. [discussing history of the presumption of legitimacy]).)
Nor is there an inconsistency between Michael H. v. Gerald D., supra, 491 U.S. 110, and our court’s decisions prohibiting an unwed mother from unilaterally consenting to an adoption over the objections of an unwed father who has come forward to assume parental responsibility. (Adoption of Michael H. (1995) 10 Cal.4th 1043 [43 Cal.Rptr.2d 445, 898 P.2d 891]; Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d *9471216].) When carefully described, the interest for which Jerry seeks constitutional protection differs from the interest at issue in our adoption cases. In those cases, the child was not bom to a mother who was the wife in an intact marital family, but to two unwed parents, one of whom (the mother) wished to terminate her parent-child relationship. The interest at issue thus was the interest of an unwed father in establishing a relationship with his child born to an unwed mother who was terminating her parent-child relationship. Due process protection for this interest does not dictate that Jerry’s different interest is likewise protected by due process.
The common law likewise differentiated between fathers of children bom to unwed mothers and fathers of children bom into the marriage of a woman and another man. At common law, the unwed mother of a child had the right to custody of the child to the exclusion of the biological father. (Ex Parte Knee (1804) 127 Eng.Rep. 416; Rex v. Soper (1793) 101 Eng.Rep. 156; 10 Am.Jur.2d, supra, Bastards, §§ 60-61, pp. 889-890; Annot., Right of mother to custody of illegitimate child (1927) 51 A.L.R. 1507, 1512; accord, Civ. Code, former § 200, repealed by Stats. 1975, ch. 1244, § 4, p. 3195; Guardianship of Smith (1954) 42 Cal.2d 91, 93 [265 P.2d 888, 37 A.L.R.2d 867].) If, however, the unwed mother died, abandoned or neglected the child, or gave the child up for adoption, the biological father had a right to custody of the child. (10 Am.Jur.2d, supra, Bastards, §§ 61-62, pp. 890-891; accord, Guardianship of Smith, supra, at p. 93.) Our adoption cases, in permitting a biological father an opportunity to establish a relationship with his child by ah unwed mother who was giving the child up for adoption, have not ventured beyond the common law rule; if that same rule were applied to decide in this case whether Jerry’s interest was a protected liberty interest, it would not assist him because Dawn, the child’s mother, has not given the child up for adoption or otherwise declined her parental responsibilities.
Conclusion
A man who wishes to father a child and ensure his relationship with that child can do so by finding a partner, entering into a marriage, and undertaking the responsibilities marriage imposes. One who instead fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life. The due process clause of the United States Constitution provides no insurance against that risk and is not an instrument for disrupting the marital family in order to satisfy the biological father’s unilateral desire, however strong, to turn his genetic connection into a personal relationship.
Baxter, J., and Brown, J., concurred.
As this court noted long ago, Shakespeare also restated this presumption: “King John: Sirrah, your brother is legitimate; Your father’s wife did after wedlock bear him; And, if she did play false, the fault was hers; Which fault lies on the hazards of all husbands That marry wives.” (Shakespeare, King John, act I, scene 1, quoted in Estate of Mills (1902) 137 Cal. 298, 301 [70 P. 91].)