dissenting.
I respectfully dissent.
I agree that the State may constitutionally require an unwed father to establish that he is the biological father, a burden understandably not required of the unwed mother. But when the father has demonstrated this concern for and interest in his child, it is my opinion that he is thereafter entitled to the constitutional guarantee of equal protection. This is denied him by Section 13.211 of the Texas Family Code under which the unwed mother may withhold consent and thereby require the father to discharge the additional burden of establishing that recognition of his fatherhood would be in the best interest of the child.
The statutory scheme of the Texas Family Code in question makes two gender-based distinctions. In the first place, the effect of *799Sections 11.01(3), 12.01 and 12.022 is that a child is legitimate to its unwed natural mother, but illegitimate to its unwed natural father. This classification serves and is substantially related to the governmental objective of maximizing accuracy and certainty in the determination of paternity of a child born out of wedlock. It recognizes the biological fact that the woman carries and gives birth to the child, while the man’s biological role ends at conception. The larger sphere of physical possibilities for the identity of the child’s natural father logically requires that paternity be established by factual proof, such as medical testimony of genetic compatibility and physical access.
Additionally, Sections 13.21(b)(3) and 13.-21(c) require either that the natural mother or the managing conservator consent to legitimation or, in the absence of such consent, the trial court consent, if it finds that legitimation is in the best interest of the child. The statutory consent requirement distinguishes between men and women by requiring an unmarried man who has factually established that he is the natural father of the child to clear yet another hurdle of obtaining consent. In the event the court’s consent is necessary, the natural father must carry the additional burden of proving that legitimation is in the best interest of the child. The State places no corresponding burden on the natural mother.
The majority’s reliance on Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) and In the Interest of K, 535 S.W.2d 168 (Tex.1976) is misplaced. Because the father in Quilloin, supra, failed to preserve the gender-based equal protection argument, id. 434 U.S. at 253, n.13, 98 S.Ct. at 554, n.13, the Supreme Court only discussed the disparate treatment between unwed fathers and married fathers. In the Interest of K, supra, was decided before Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) which make clear that gender-based classifications must serve important governmental objectives and be substantially related to the achievement of those objectives. The rational basis test used in In the Interest of K, is no longer relevant to the gender-based classification at issue here.
I point out further that In the Interest of K, relied on In re Adoption of Malpica-Orsi-ni, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 311 N.E.2d 486 (1975), in ruling that the Texas Family Code did not deprive an unwed father of the equal protection of the law. But the U. S. Supreme Court in writing Craig v. Boren, supra, and Caban v. Mohammed, supra, said this about Orsini:
In Orsini v. Blasi, [423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 642] supra, the Court dismissed an appeal from the New York Court of Appeals challenging the constitutionality of § 111 as applied to an unmarried father whose child had been ordered adopted by a New York Surrogate. In dismissing the appeal, we indicated that a substantial federal question was lacking. This was a ruling on the merits, and therefore is entitled to prece-dential weight. See Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). At the same time, however, our decision not to review fully *800the questions presented in Orsini v. Blasi is not entitled to the same deference given a ruling after briefing, argument, and a written opinion. See Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Insofar as our decision today is inconsistent with our dismissal in Orsini, we overrule our prior decision.
Caban, supra, 441 U.S. at 390, n.9, 99 S.Ct. at 1767, n.9.
Further, citing Craig v. Boren, supra, the U. S. Supreme Court stated in Caban that to withstand judicial scrutiny under the Equal Protection Clause of the Fourteenth Amendment gender-based distinctions must serve important government objectives and be substantially related to achievement of those objectives. The Court wrote:
Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother.
Appellant Caban, appellee Marie Mohammed, and their two children lived together as a natural family for several years. As members of this family, both mother and father participated in the care and support of their children. There is no reason to believe that the Caban children — aged 4 and 6 at the time of the adoption proceedings — had a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of § 111 is required by any universal difference between maternal and paternal relations at every phase of a child’s development.
The State’s interest in providing for the well-being of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not in itself sufficient to justify the gender-based distinction of § 111. Rather, under the relevant cases applying the Equal Protection Clause it must be shown that the distinction is structured reasonably to further these ends.
We find that the distinction in § 111 between unmarried mothers and unmarried fathers, as illustrated by this case, does not bear a substantial relation to the State’s interest in providing adoptive homes for its illegitimate children.
Id. at 389-91, 99 S.Ct. at 1766-1767.
The majority discusses the opportunities for the unwed father to avoid automatic responsibility for the child, an option not biologically available to the unwed mother. It should be emphasized that in this case the natural father repeatedly attempted to establish a relationship with the child, and, indeed, was permitted some limited visitation with her. Moreover, there are letters in the record written by the mother to the father that led the father to believe that it was her wish that the father have the baby. However, the father’s access to the child was discouraged and limited by the adoption agency, which had physical possession of the child at the request of the mother.
In my view, the discrimination against the unwed father in the Family Code is not justified by the promotion to any substantial extent of the State’s objectives mentioned by the majority; and I certainly cannot agree with the assertion by the majority that the difference in the statutory treatment of unwed fathers and mothers is “slight.”
I am in accord with the rationale of the Supreme Court of Missouri in J.D.S. v. Edwards, 574 S.W.2d 405 (Mo.1978) en banc. *801In J.D.S., an unwed father sought custody of his illegitimate son. The mother had relinquished her parental rights and given the child for adoption. In formulating a standard to determine the unwed father’s substantive due process rights, the Court stated:
A legislative recognition of married fathers’ presumption of fitness is manifest in the high level of proof required by the statute to support a finding of unfitness as to them. However, we believe that an unwed father initially has no such strong presumption of parental fitness. The State is not constitutionally required to accord such presumption. Instead the State is free to require an unwed father first to prove that he has seasonably demonstrated a meaningful intent and a continuing capacity to assume responsibility with respect to the supervision, protection and care of the child, and the trial court in these proceedings should at the outset examine the extent of such parental concern and capacity as may have been demonstrated by the putative father. On a finding of such concern and capacity, the father is then cloaked with the benefit of the presumption of fitness essentially the same as that enjoyed by other parents and the burden becomes the petitioner’s to show by “clear, cogent and convincing evidence,” unfitness, waiver or other disqualification of the sort described in § 211.441, RSMo 1969.
Id. at 408-09. The Court recognized that Quilloin approved the “best interests of the child” standard but rejected it in favor of a more lenient standard under the Missouri Constitution.
This standard [best interest] presents the difficulty that an unwed father, though he may have shown great parental concern, must compete with adoptive parents to establish not only that he is a suitable parent (i. e., meeting a charge of unfitness), but also that he is the most suitable of those seeking custody of the children. For those unwed . fathers who are fit, and who have demonstrated such parental concern, the standard approved by the U. S. Supreme Court in Quilloin seems to represent a diminution of the protection afforded by the due process and equal protection clauses of the United States Constitution set forth in Stanley. We are disinclined to so dilute these important rights. We hold that the Missouri Constitution, art. I, §§ 2 and 10, requires as the appropriate minimum standard that the same presumption of fitness afforded married fathers in parental termination proceedings be afforded to natural fathers after a reasonable showing of fatherly concern in such cases.
Id. at 409.
Finally, I point out that the majority does not address the Texas Equal Rights Amendment which states,
Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.
Tex.Const. art. I, § 3a.
This provision has been in the Texas Constitution since 1972. The majority does not decide if the Texas Constitution provides less, greater or the same protection as the Fourteenth Amendment. See Schoen, The Texas Equal Rights Amendment, 15 Houston L.Rev. 537 (1978) where Professor Schoen proposes several tests, and argues that the use of any single test “will undermine the objectives of the Texas ERA.” Id. at 586. See also, Sampson, The Texas Equal Rights Amendment and The Family Code: Litigation Ahead, 5 Texas Tech.L. Rev. 631 (1972).
Other State Courts have faced the Equal Rights Amendment issue and have adopted rules with which to test the constitutionality of gender-based classifications. The Massachusetts Supreme Court adopted the strict scrutiny test that the United States Supreme Court utilizes to test laws that affect fundamental rights or make suspect classifications. Thus, in Attorney General v. Interscholastic Athletic Assoc.,-Mass. App.-, 393 N.E.2d 284 (Mass.1979), that Court held that gender-based classifications *802must further a demonstrably compelling interest and limit its impact as narrowly as possible consistent with the legitimate purpose. See People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (1974). In Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974), the Court stated that gender can no longer be accepted as an exclusive classifying tool. The Maryland Court of Appeals held that sex cannot be a factor in legislative classifications. Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977). Washington interprets the Equal Rights Amendment as a prohibition of classifications based on gender. Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975); Welfare of Jeffrey Lee Hauser, 15 Wash.App. 231, 548 P.2d 333 (1976).
We considered this problem in Mercer v. Board of Trustees, North Forest Independent School District, 538 S.W.2d 201 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref’d n. r. e.). In Mercer, after quoting Darrin v. Gould, supra, the Court wrote:
We cannot agree with the Supreme Court of Washington that the ERA admits of no exceptions to its prohibition of sex discrimination. Any classification based upon sex is a suspect classification, and any law or regulation that classifies persons for different treatment on the basis of their sex is subject to strictest judicial scrutiny. Any such classification must fall unless the party defending it can show that it is required by (1) physical characteristics, (2) other constitutionally protected rights such as the right of privacy, or (3) other “compelling reasons.” With respect to “physical characteristics” we are simply recognizing the facts of life. For us to adjudicate that women are men would be as futile as it would be absurd. Neither the ERA nor the rights established by it require us to construe it so as to deny sexual or reproductive differences between the sexes. Nor does the ERA require that such rights so established (and so long denied) be enforced where they come into conflict with other basic fundamental constitutionally-protected rights such as that of privacy. To justify a suspect classification by “compelling reasons” places the burden of proof and persuasion on the party defending the classification.
Mercer, supra, at 206. For an analysis of Mercer, see Schoen, The Texas Equal Rights Amendment, 15 Houston L.Rev. 537, 568-72 (1978).3
Under Mercer, the Equal Rights Amendment makes gender a “suspect” class and to withstand scrutiny, a statute that makes a gender-based distinction must further a compelling interest and represent the narrowest and least restrictive means by which that objective can be achieved. Under the Texas Family Code only unwed father’s rights are involuntarily terminated by the best interest of the child standard. All other parents, including the unwed mother, are protected from the involuntary termination of their parental rights by Chapter 15 of the Family Code. Section 15.02 provides that to involuntarily terminate the rights of a parent the Court must find that the parent committed the acts specified in § 15.02. “Parent” is defined in a manner that excludes unwed fathers, § 11.01(3); he is thus not afforded the protection of § 15.02. *803There is no constitutionally acceptable basis for this discrimination.
POPE and SPEARS, JJ., join in this dissenting opinion.
. § 13.21. Voluntary Legitimation
(a) If a statement of paternity has been executed by the father of an illegitimate child, the father or mother of the child or the State Department of Public Welfare may file a petition for a decree designating the father as a parent of the child. The statement of paternity must be attached to the petition.
(b) The court shall enter a decree designating the child as the legitimate child of its father and the father as a parent of the child if the court finds that:
(1) the parent-child relationship between the child and its original mother has not been terminated by a decree of a court;
(2) the statement of paternity was executed as provided in this chapter, and the facts stated therein are true; and
(3) the mother or the managing conservator, if any, has consented to the decree.
(c)The requirement of consent of the mother is satisfied if she is the petitioner. If the entry of the decree is in the best interest of the child, the court may consent to the legitimation of the child in lieu of the consent of the mother or managing conservator. (Italics added).
. Section 11.01.
(3) “Parent” means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the paient-child relationship has been terminated.
Section 12.01.
A child is the legitimate child of his mother.
Section 12.02.
(a)A child is the legitimate child of his father if the child is born or conceived before or during the marriage of his father and mother.
(b) A child is the legitimate child of his father if at any time his mother and father have attempted to marry in apparent compliance with the laws of this state or another state or nation, although the attempted marriage is or might be declared void, and the child is born or conceived before or during the attempted marriage.
(c) A child is the legitimate child of a man if the man’s paternity is established under the provisions of Chapter 13 of this code.
. The sex equality provision of the Texas ERA is not simply window dressing added to the state constitution as a sop for a few overwrought but vocal citizens. Adoption of the Texas ERA, considered in its contemporary social, political, and legal context, is inconsistent with a view that nothing has changed or should change. The law cannot be changed and yet remain unchanged, unless the plain language of the state constitution is ignored. Amending the state constitution is scarcely necessary to preserve the status quo ante, and inclusion of a specific and unqualified guarantee of sex equality seems a peculiar means to perpetuate the sex-based discrimination of the past. Finally, an obvious but occasionally overlooked fact should be noted. When the law imposes burdens, confers benefits, or otherwise distinguishes between persons because of sex, the basis for different treatment, sex, is a characteristic over which a person has no control, an “immutable characteristic determined solely by the accident of birth.”
Schoen, 15 Houston L.Rev. at 587. But see the concurring opinion in Darrin v. Gould, supra, where the concurring justice expresses his doubts that the voters intended all of the consequences of the Equal Rights Amendment’s adoption.